Working and running during sick leave: instant dismissal?

14/04 2015

An employer discovers that an employee unfit for work takes part in running events and works on his house during his sick leave and dismisses him instantly. The judge is of the opinion that not the employer but the company doctor must decide whether these activities hinder the employee's rehabilitation: instant dismissal legally invalid.

Working and running during sick leave: instant dismissal?

An employer discovers that an employee unfit for work takes part in running events and works on his house during his sick leave. Employer subsequently dismisses employee with immediate effect. The employer believes that the employee has not complied with his rehabilitation obligations and is impeding his recovery. The judge, however, ruled that it was not up to the employer to decide whether these activities impeded the employee’s rehabilitation but up to the company doctor. The instant dismissal was therefore declared invalid.

Facts

Employee, 57 years old, has been working as a stockroom assistant for an installation company since 1 October 2007. The employee has been unfit for work since 8 March 2012. Second-track rehabilitation was initiated on the advice of an occupational consultant in September 2012. The employee commenced with suitable work externally on 25 October 2012.

The employer dismissed the employee with immediate effect on 4 July 2013 owing to violation of the rehabilitation obligations. He took part in running events and worked on his house (replaced gutters) without requesting permission to carry out these activities.

The employee invoked the invalidity of the dismissal on 5 July 2013. On 6 July 2013 the company doctor stated in an e-mail that he did not know that the employee had participated in running events; the doctor was under the impression that the employee went jogging twice a week. He stated that the employee had never mentioned any running activities. He also stated that had the employee done so, this would have immediately affected the employability advice.

The employee had an appointment to see the company doctor on 8 July 2013, which he cancelled because of his instant dismissal and because the employer indicated that he intended to persevere with the dismissal. The employee subsequently commenced preliminary relief proceedings. The employer submitted a conditional request for termination of the employment contract. The employee’s claims were dismissed in preliminary relief proceedings and the employment contract was conditionally terminated on 1 October 2013 without severance pay. The employee then initiated proceedings at the court hearing the case on the merits.

The proceedings on the merits

The subdistrict court judge must assess whether the instant dismissal is legally valid in proceedings on the merits. Incidentally, is it not clear from the ruling exactly what the employee’s disabilities were. The employee, among other things, adopted the position that the running activities and odd jobs did not impede his rehabilitation. On the contrary, running had a positive effect on his health. And he also stated that he did not go beyond the limits of his physical capacities when working on his home. The subdistrict court judge ruled that it was up to a medical expert to assess whether or not the aforementioned activities had impeded the employee’s rehabilitation. The employer was obliged to first consult with the company doctor before instantly dismissing an employee. The employee’s failure to provide information also did not constitute an urgent reason. The court found that the appropriate sanction in this type of situation was to suspend the employee’s salary. The instant dismissal was therefore declared invalid.

North-Netherlands District Court 18 December 2014 (date of publication: 2 April 2015).