An employee reports sick to his employer, but turns out secretly continues to work for his own company. At least, that is what the employer thinks when it sees on LinkedIn that the employee has delivered a project. Reason for immediate dismissal, the employer thinks. But it is not as simple as that, the ‘s-Hertogenbosch Court of Appeal rules.
Employee has been employed by (the legal predecessor of) employer as a Technical Specialist since 1991. Since 1997, employee has worked three days a week for the employer. The other two days he works as a self-employed person. On 13 July 2021, the employee called in sick. From then on, he was unfit for work and, according to the company doctor, could not return to work. In the beginning of September, the supervisor sees a post by employee on LinkedIn about a project that employee allegedly delivered. In response, a detective agency conducts an investigation on behalf of the employer from 16 September 2021 to 6 October 2021. A report was delivered on 6 October 2021, after which employee was summoned for an interview with the supervisor and manager on 7 October 2021. Subsequently, employee was summarily dismissed on 8 October 2021, on the grounds of performing ancillary work while unfit for work and therefore not performing any work for employer.
Judgment of the court
The subdistrict court rules that the summary dismissal was not legally valid and that the employee was entitled to fair compensation of EUR 5,000 gross. The court of appeal follows the subdistrict court in this and increases the fair compensation. The instant dismissal was not legally valid. It is not up to the employer to judge what the employee can or cannot do in view of his incapacity for work. For this, the employer should seek the opinion of the company doctor. Given the employee’s long service, the employer could have sufficed with a warning or reprimand. That the employee informed the company doctor that he was incapable of doing anything and did not discuss with the company doctor what he could or could not do and to what extent he could do something for his own company, is considered by the court of appeal to be culpable and has an impact on the fair compensation. The court of appeal considers the ‘value’ of the employment contract to be EUR 25,000 gross.
In the event of dismissal with immediate effect, it is important to act carefully, especially in the case of a sick employee. A dismissal with immediate effect must always be the last resort. In this particular case, that means it is wise to first ask the company doctor for an opinion before acting. There is also the possibility of requesting an expert opinion from the UWV (Dutch Employee Insurance Agency).
If you have any questions about a sick employee and/or reintegration, contact one of our experts!