Your lawyerEileen A. Pluijm, LL.M.
Eileen Pluijm advises national and international entrepreneurs and organisations on disputes concerning personnel, employee participation and social security. She is a member of the employment law and dismissal group at Russell Advocaten.
t: +31 20 - 301 55 55
Dismissal on the spot for a minor offence. Is that allowed?
Can you dismiss your employee with immediate effect after the theft of a (very) low-value product? Yes, you can! However, a recently published decision shows it does not go without a risk!
Before his shift, an Action employee bought 20 ponchos in the Action store. After his shift, he took a 3-cent carrier bag, put the ponchos in it and went home without paying for the bag. Action dismisses the employee with immediate effect for theft. The employee does not agree with this and contests his dismissal in court.
The judge agrees with the employee. Although he violated Action’s zero tolerance policy by taking the carrier bag without paying, dismissal with immediate effect goes too far. According to the judge, the carrier bag is not worth anything. Besides, the dismissal hits the employee hard: being in debt recovery, he has just got his life back on track again. Because of the dismissal, he is again in financial difficulties. The court decides that the theft of a trivial bag does not outweigh these severe consequences of the dismissal for the employee.
Minor offences, where an employee steals a (very) low-value product with the result of dismissal with immediate effect, can regularly be found in case law. For instance, the court already decided on dismissal with immediate effect after applying body lotion from a free sample, theft of € 0.50, taking a bite from a donut and taking a pack of dairy drink that was past its date.
If it concerns (very) low value products, dismissal with immediate effect sometimes seems too severe a measure. On the other hand, you, as an employer, want to be able to trust your employees. Stealing is stealing, and you want to prevent that at all times.
As can be seen from the Action decision, the judge does not always agree with the employer that dismissal with immediate effect is justified because of a minor offence. In that case, you will have to take the employee back if he stills wants to go back and you will have to continue to pay wages for the period the employee did not work. If the employee resigns himself to the dismissal, you will often have to pay fair compensation in addition to the transition compensation.
How do you increase the likelihood that the judge will agree with you? Here are three tips:
- Ensure a clear and accessible policy. It must be crystal clear to the employee that his actions can result in dismissal with immediate effect. Record this, for instance, in a personnel handbook and bring it to the attention of your employees repeatedly.
- Enforce the strict policy consistently.
- Take into account the employee’s personal circumstances in your choice of whether or not to proceed with a dismissal with immediate effect. Consider the duration of the employment, how the employee functions, the position on the labour market and the age of the employee. A judge will always weigh the interests of the employer against the consequences of the dismissal for the employee.
Are you looking for advice on dismissing an employee with immediate effect? Or is a dismissal contested in court? Please contact us:
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