Drunk at a staff party

It’s not unknown for a loyal employee to exhibit shocking behaviour unexpectedly after having one too many at a staff party. The fact that an employee summarily dismissed in this situation should not then expect clemency from the sub-district court is regularly confirmed by the courts. The Sub-District Court of Zwolle gave judgment on this issue on 2 September 2003, published in JAR 2003, 219. According to the Sub-District Court, the fact that the misbehaviour occurred during a staff party, so not at work and not even during working hours, is irrelevant.

The employee had worked for the company Betonson as a production worker since 2000. During a staff party in November 2002, he became drunk, tried to knock over one of two stilt walkers who were performing, behaved so annoyingly that another performing duo ended their performance early, took over the sound equipment without permission and, when admonished for his behaviour, insulted and threatened one of the managers. He also walked around the ballroom bare-chested, made sexual advances to his colleagues’ partners, grabbed a female colleague by the crotch and urinated against a table in the ballroom. Several colleagues were prepared to make a written statement of these events. The employee subsequently apologised.

Trust

Betonson was faced with the fact that as a result of the misbehaviour described above the employee had not only seriously tarnished the company’s good name but also created an impossible situation between himself and his colleagues and managers. Due to his bad behaviour at this disastrous staff party, their trust in the employee had been irreparably damaged. The day after the management of Betonson realised the full impact of the situation, they dismissed the employee with immediate effect.

As Betonson was uncertain about its actions in summarily dismissing the employee, it attempted to prevent potential lengthy salary recovery proceedings by applying for a dismissal permit “to the extent required” from the then Centre for Work and Income (CWI). However, the CWI refused to grant the application. The CWI considered it significant that the misconduct did not take place during working hours or at the employee’s place of work. The dismissed employee was encouraged by this decision by the CWI and submitted a claim for recovery of salary to the Sub-District Court. He stated that the summary dismissal

was void and made a claim to return to work and receive payment of his agreed salary. He argued that his misbehaviour during the disastrous staff party was not serious enough to justify summary dismissal, particularly as this was an isolated incident that occurred outside working hours and away from his place of work. He added that Betonson had chosen to “let the drinks flow lavishly” during the unfortunate staff party.

Stringent requirements

The Sub-District Court judge prefaced his decision by stating that lawful summary dismissal is subject to stringent requirements. One of these is that there should be an urgent reason. Whether an urgent reason exists in a particular case “depends on the nature and seriousness of the reason” and on all the circumstances of the case, “such as the nature and duration of the employment, the manner in which the employee has performed the same, his personal circumstances and the consequences of the dismissal for the employee”. The judge held that the behaviour described should be regarded as serious misconduct. The employee had breached all standards of normal interaction and decency. This applied particularly to the sexual advances described, touching a female colleague in the crotch and public urination. The fact that the drinks flowed lavishly did not diminish the employee’s responsibility to keep himself under control. The judge understood that Betonson no longer trusted this employee at all and could well imagine that due to his behaviour during the unfortunate staff party the employee had created an impossible and irretrievable situation between himself and his colleagues and managers.

The Sub-District Court rejected both the dismissed employee’s claim for salary and Betonson’s counterclaim. Betonson had argued that it had suffered loss due to having to dismiss the employee who had gone off the rails with immediate effect instead of being able to make use of the normal notice period. The Sub-District Court considered that this claim went too far. There was no evidence that this dismissal with immediate effect had caused organisational problems for Betonson that had involved incurring extra costs. In reaching this conclusion, the Sub-District Court took into consideration that until this urgent dismissal there had been no problem with the employee’s performance.

Not impossible

This judgment proves once again that summary dismissal is not impossible. Many employers think that sub-district courts generally decide in the employee’s favour and will prevent an employee being dismissed with immediate effect. However, if there is straightforward, reliable evidence of improper, downright shameful misbehaviour then this clearly does not hold. Even if the employee concerned has always performed satisfactorily. The Sub-District Court does impose stringent requirements on the severity of the misdemeanours. This judgment makes it clear that it does not actually matter whether the misconduct occurs outside normal working hours or at a location other than the usual place of work. It is also irrelevant whether the misbehaviour is connected with the agreed work. It appears that it is sufficient that as a result of such serious misconduct in the presence of colleagues and managers their trust in the misbehaving employee is irreparably damaged.