When is dismissal allowed?

Strict requirements

It is without doubt that a dismissal with immediate effect has far-reaching consequences for an employee. No job, no salary, no benefits, embarrassment. It is with these reasons that there exist strict requirements before such a dismissal is allowed. The situation has to be so severe that direct dismissal is the only possible solution. Furthermore such a dismissal must be notified directly and substantiated by the employer to the employee.

No list exists

There does not exist any list with grounds on which a dismissal with immediate effect is allowed. It depends completely on the circumstances of a case. Case law is very diverse on this point. This article will discuss two judgments in order to provide some clarity.

Refusal of blood test

The first case was dealt with by the Supreme Court at the 11th of September 2015 and dealt with the question whether an employee could refuse a blood test. The situation concerned a firefighter who had to take a blood test as part of his medical check in order to see whether he was exposed to lead. The employee refused the blood test on principal grounds, which the employer took as a refusal of work. This led to a dismissal with immediate effect.

The Supreme Court found that the dismissal could be justified, because the employee was physically able to follow the reasonable assignment of the employer. The appeal of the employee on his fundamental right to private life and the inviolability of the human body was not sufficient, because this violation (the blood test) served a legitimate 

purpose and was appropriate to achieve that goal. The goal could not be achieved in a less infringing way, like through a urine test. The assignment was proportional and the dismissal with immediate effect was justified.

Forgotten child

In a second case the court of Rotterdam did not approve a dismissal with immediate effect. The case dealt with a child carer who forgot a child in a car on a hot day at a trip to the playground. The employer decided to dismiss the child carer with immediate effect. Although the employer recognised that there was no intent, the neglect of duty was so severe that a dismissal with immediate effect was the only solution.

The judge had to admit that the error in the tasks of the child carer was severe, with grave consequences. She should have checked whether all children were present and that obviously did not happen. The dismissal with immediate effect however was too severe as punishment, because the circumstances of the case had to be taken into account. The employee did perform well for three consecutive years. The dismissal of the child carer could be justified on the ground that the reputation of the day-care was ruined, but she could get a transition compensation anyway. The judge ruled that culpable behaviour could be established instead of grave culpable behaviour, which would have led to no payment.

Conclusion

At first glance it seems that leaving a child in a hot car is much worse that refusing a blood test. The result of the case is however very different: the blood test led to dismissal with immediate effect, the forgotten child did not. It shows that the circumstances of every case are important with a dismissal with immediate effect. Inform yourself properly on this topic.

More information

If you want more information on the dismissal of an employee or when you wonder whether a dismissal with immediate effect is justified, please contact our attorney mr. Suzanne van Dijsseldonk.