Summary dismissal is a remedy that cannot be deployed in every situation. Each file must be examined to determine whether summary dismissal may be resorted to. As a recent ruling shows, there are circumstances that can significantly strengthen your dismissal file.

Case:
The employee is a window cleaner and has been employed by Imago since 1997. One of Imago’s most important clients is Sligro. Sligro had repeatedly voiced complaints to Imago about the cleaners’ phone use and smoking behaviour and threatened to terminate the assignment agreement. In connection with this, Imago had repeatedly pointed its employees to the phone and smoking policy. Despite these warnings, some employees did not properly comply with these rules of conduct. During a work visit (24 September 2012), the employer found the employee not at work, but on the phone in his car. This incident ultimately led to summary dismissal as of 28 September 2012. The subdistrict court ruled the summary dismissal lawful, but the employee appealed.

The court of appeal rules as follows. In the court’s judgment – whatever the exact times at which the breaks were held (between 9:00 and 9:30 as Imago states, or between 9:30 and 9:45 as the employee states) and regardless of whether the break times were put in writing – it has been sufficiently established, on the basis of the witness statements of A (Sligro employee) and B (Imago employee), viewed in conjunction, that the employee used his mobile phone outside of the breaks.

The dismissal letter shows, as also stated by Imago in its statement of defence and not disputed by the employee:

• that the reason for the summary dismissal partly lies in the circumstance that the employee regularly made phone calls during work and that this is contrary to the rules of conduct;
• that Sligro has denied the employee access to its premises;
• that the employee can no longer be deployed for Sligro;
• that Sligro is threatening to withdraw the assignment from Imago;
• that the employee denies that the conduct in question occurred, and has in no way shown any insight into the situation and his role.

Under these circumstances, the employer could not be expected to let the employment contract continue. Insofar as the employee argues that there is no urgent reason for dismissal because, contrary to what Imago has stated, the Sligro assignment does not represent 60-70% of Imago’s turnover and he can be deployed for other Imago clients, this argument does not hold. Imago has stated that it no longer has any confidence in the employee. Since the employee, after the work meeting of 27 January 2012, the warning of 5 March 2012, and knowledge of the consequences his conduct could have for his employer, showed no sign of improving his behaviour, Imago cannot reasonably be expected to try it elsewhere with the employee.

This is not altered by the fact that the employee was 49 years old when he was summarily dismissed and had been employed by Imago for 15 years, nor by the fact that, as the employee argues, it is difficult for him to find a new job. The employer could simply have opted for an improvement in his behaviour.

The fact that the employer conducted four days of further investigation into the actual course of events before giving the summary dismissal does not make the termination any less immediate, which is required for a lawful summary dismissal. A dismissal given after four days can still have been given without delay.

Our advice:
It really does make sense to impose regulations with rules of conduct, instructions and requirements on your employees. The condition, however, is that you enforce them strictly and consistently and send the right warnings in time. Need help drafting regulations and access to a free database of examples? Then click here!

Have your employee file checked for grounds for dismissal and readiness!