His casual attitude toward the directives set by the RIVM (the Netherlands National Institute for Public Health and the Environment) cost an employer a lot of money. In a recent dismissal case, the judge ruled that the employer in question had committed a severe culpable act. As a result, he was forced to pay an employee extra financial compensation.
The respective employee worked as a quality manager for a construction company. When in March 2020 the coronavirus pandemic hit the Netherlands, a discussion arose between the employee and his employer about observing the directives set by the RIVM. The employer argued that the coronavirus was ‘just a case of flu’ and that therefore it was not necessary for employees with COVID-19 symptoms to go into quarantine. The employee in turn argued that he was concerned about the health risk this posed to him and that he did not feel comfortable with the situation. The employer then told the employee that if he didn’t like it, he could ‘get his stuff and leave’.
Employer cuts annual bonus
In July 2020, the employee in question left a department dinner with colleagues prematurely because social distancing was impossible. A week later, the employee was told he would receive a bonus of only € 2,000 instead of the regular € 20,000. The employee then called in sick. The employer immediately urged a termination of the employment contract. The occupational health physician established that the employee was not unable to work for medical reasons, but rather that there was a conflict of interests on the work floor. The physician did, however, advice the employee to take some rest. After the employee had given the physician’s advice as the reason for why he did not yet want to discuss matters with the employer, the latter decided to suspend the payment of wages.
Employer and employee can no longer work together
The employer appealed to the judge to dissolve the employment contract on grounds of culpability on the part of the employee and a disrupted employment relationship. The employer argued the employee had deliberately created a conflict between them. The judge ruled that there was no culpability on the part of the employee, but did acknowledge the employment relationship had been severely and permanently disrupted, as agreed to by both employer and employee. The employment contract was thus dissolved.
Employer was neglectful
Despite there being no culpability on the part of the employee, the judge did rule that there was severe culpability on the part of the employer instead. His attitude towards the directives set by the RIVM was both careless and neglectful. Moreover, the employer had also committed a severe culpable act by urging a termination of the employment contract, ignoring the advice by the occupational health physician, and suspending the payment of wages. In the end, the employer had to pay the employee € 58,000 in extra financial compensation for loss of income and pension accrual. In addition to this, he had to pay any outstanding salary, holiday allowance, the withheld portion of the bonus (€ 18,000) and € 38,000 in statutory severance pay, pay out any untaken days of leave and cover the full litigation costs.
Court of Midden-Nederland, March 15, 2021; ECLI (abridged): 1170