Our employment and dismissal lawyer in Amsterdam provides legal advice on dismissal and transition compensation in the case of sexual cross-border conduct. Is an employer allowed to dismiss an employee if he makes coarse comments and jokes about colleagues? In a judgment dated 20 November 2019, the District Court of The Hague ruled that an employee may be dismissed for making frequent sexual comments. This concerned a supermarket manager who was also a member of the Committee on Confidential Matters. What preceded the dismissal?
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Dissolution on the e-ground (culpable action) because of sexual remarks
The supermarket manager was employed for 23 years. Since 2013 he was a member of the trust committee of employer. Employees can ask this committee on matters such as sexual harassment, aggression or violence at work.
Subdistrict court: dissolution on the e-ground (culpable action)
The employer’s lawyer applied to the subdistrict court for dissolution on the e-ground (culpable action), because of sexual remarks in the workplace. At the hearing, the manager admitted that
- He regularly asked male colleagues in a group whether they had had sexual contact, while female colleagues were also present.
- He also admitted in court that once after a job interview he walked into the canteen with the applicant and then depicted that she had a large bosom. He meant all this in a funny way.
Inadmissible behavior in the workplace is not funny
The cantonal judge was not amused. The statements of a number of colleagues showed that the manager’s sexual comments were unpleasant and inappropriate. The judge judged the remarks as inappropriate and inadmissible in the workplace. The fact that he was a member of the trust committee was heavily blamed on him. As a result, he should have known that the remarks were undesirable.
Ten employees made a statement about his remarks. The employee was subsequently suspended.
Eventually, the employer’s lawyer requested the subdistrict court to dissolve the employment contract, primarily because of culpable actions, without granting the transition allowance. The employee’s lawyer requested a transition allowance of € 51,369 gross as well as a fair compensation of € 200,000.
Sexual comments: unpleasant and inappropriate remarks
The Subdistrict Court agreed with the employer’s lawyer that there was a reasonable ground for dissolution of the employment contract because of unacceptable sexual comments. In the opinion of the Subdistrict Court, the employee did not sufficiently realise that they could perceive his remarks as such. According to the judge, the remarks made are completely inappropriate and inadmissible in a work-related setting.
Manager and role model as member of the Confidential Committee
This is all the more true now that the employee has an exemplary role as supermarket manager. He must therefore ensure a safe, respectful working environment. On top of that, he is a member of the Confidential Committee, so he should know that his statements constitute undesirable behaviour.
Severance pay: 25% transitional compensation in the event of cross-border conduct
Because the employee has worked satisfactorily for 23 years, the Subdistrict Court held that (only) a partial transition allowance, i.e. 25%, does justice to the circumstances of the case.
Therefore, always note that “funny” sexual remarks and or actions towards colleagues can be experienced as undesirable. Particularly when it concerns an exemplary function.
Court of The Hague in dismissal case: behaviour makes you feel unsafe at work
The District Court of The Hague also ruled on this in another case. The Subdistrict Court judged that an employee regularly made statements to colleagues, such as jokes and sexually explicit statements, which are not acceptable. This also applies if colleagues treat each other amicably. Regularly making such remarks creates an unsafe feeling at work. The remarks and jokes did not fit within the company’s culture and had a (negative) impact on a colleague. She became incapacitated for work.
Behaviour also in an objective sense cross-border and not appropriate
The Subdistrict Court also found the conduct to be objectively cross-border and inappropriate within a job. The employer may expect a more professional attitude and behaviour from an employee in the workplace. There must also be a safe and reliable working environment for all employees. The subdistrict court takes this into account for all jobs.
The Subdistrict Court also found the conduct to be objectively cross-border and inappropriate within a job.
- The employer may expect a more professional attitude and behaviour from an employee in the workplace.
- There must also be a safe and reliable working environment for all employees.
The subdistrict court ruled that a General Code of Conduct applies to all employees. The employee’s lawyer felt that the employer had invoked this too late, but the judge rejected this defence. The Code of Conduct states, among other things, that intimidating, disapproving, and offensive conduct will not be accepted. He therefore terminated the employment contract. However, at the request of his lawyer, the employee was provided with transition compensation because there was no question of serious culpability.
Immediate dismissal regarding cross-border behaviour
Whether such behaviour is sufficient for immediate dismissal is only obvious in very serious cases. In a similar case, the Subdistrict Court of Overijssel ruled that the employee’s conduct was indeed cross-border, but also held that the employee did not primarily have sexual motives. Moreover, the contacts were reciprocal to a certain extent. In this context, the major personal consequences of a summary dismissal also play a role, plus the fact that he is now aware of his shortcomings and has sought help for them.
Contact with Dutch lawyer employment law in Amsterdam on cross-border behaviour
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