You may recognise this as an employer: at some point the client indicates that your employee is no longer welcome on the site. That leaves you with a problem. You must still continue to pay the salary, but how should you deal with the employee in such a situation? Dismissal is not always the right route. Using a ruling from the RAS disputes committee from last March, we explain this in this article.<\/p>\n
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What happened?<\/strong><\/p>\n Last March, the RAS disputes committee ruled on a matter in which an employee of a cleaning company was working at a supermarket. As a gesture, the supermarket had indicated that a “single” chocolate letter could be eaten by staff. According to the supermarket, however, the employee in question (together with a number of other employees) had, instead of a single letter, taken a whole batch of chocolate letters as well as other foodstuffs. The employee disagreed with this, however, because his travel time increased enormously as a result. He believes he is not at fault and, as a result of a misunderstanding, is no longer welcome on the site. Nevertheless, under these circumstances the employer was, according to the RAS disputes committee, allowed to proceed with this transfer. Given all the circumstances, the employee was obliged to accept the proposal for the new site.<\/p>\n The disputes committee does not side with the employee, since it is established that the employee was no longer welcome at the supermarket. This made it necessary, due to changed circumstances, to transfer him to a different site. The fact that the employee had to travel further to the site does not change this. After all, the new site falls within the regional boundary of article 1, and the work schedule was adjusted such that the employee had to travel to the site fewer days per week (1-2 times a week instead of 5). It is also important that no other alternative sites were available.<\/p>\n Dismissal of an employee who is “persona non grata”?<\/strong><\/p>\n Logically, after such a misdemeanour, the client indicates that an employee is no longer welcome on the site. You may recognise this situation. The problem is only that, although dismissal is often considered in situations like this, this is not so easy given the Dutch dismissal system.<\/p>\n Summary dismissal namely requires such an urgent reason that the employer can no longer be expected to continue the employment relationship, despite the far-reaching consequences for the employee. Because the supermarket had, in principle, given permission for the consumption of a single chocolate letter, and other colleagues had also been guilty of taking foodstuffs, there is a good chance that a summary dismissal would not hold up.<\/p>\n Zero tolerance policy<\/strong><\/p>\n A successful dissolution via the subdistrict court would also be far from certain, especially if there were no clear instructions from the employer. The employer could have had a stronger position by giving good, clear instructions in advance and laying down a so-called ‘zero tolerance’ policy in writing within the company, stating that it is not permitted at all to accept anything from the client, on pain of summary dismissal. After all, forewarned is forearmed.<\/p>\n Alternative solution: transfer under article 8 of the CLA<\/strong><\/p>\n Fortunately, you are not completely powerless in a situation like this. If the employee is simply no longer welcome on a site, for example due to a situation like this one (or a suspicion, though not proven, of theft), you are, within certain limits, authorised to transfer the employee. This is on the basis of article 8 of the CLA.<\/p>\n The cleaning company in question did indeed do this. However, the employee argued that the transfer could not be required of him. This in view of the travel time that would increase considerably due to the change of site (according to the employee, from a 10-minute bike ride to a 1-hour one-way trip by public transport). However, as indicated, it is then important to think along with the employee and to accommodate those objections as much as possible. The mere fact that the site falls within the regional boundary (30 km from the place of residence) is not sufficient. Is the objection the extra travel time? Then, for example, adjusting the working days can offer a solution. That can make an offer reasonable. You can also think of working hours. If the working hours at the new site conflict with another job the employee has, which is common in the cleaning sector, it is also reasonable to look at that. By taking this into account, you ensure that it must be accepted by the employee. If the employee does not do so, this can still be a reason for dismissal.<\/p>\n Conclusion Want to know more about building files and situations like this? The Legal Company B.V. provides on-site training courses, including the training on file-building and dismissal<\/a>. For more information, visit our website<\/a>, email info@thelegalcompany.nl<\/a>, or call 020-3450152. You are of course also welcome to contact us if you are experiencing a situation like this and would like legal advice or assistance.<\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":"","protected":false},"author":2,"featured_media":20026,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"page_builder":"","iawp_total_views":0,"footnotes":"","_et_pb_custom_css":""},"categories":[27,31],"tags":[68,54,120],"class_list":["post-30574","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-arbeidsrecht","category-schoonmaak","tag-arbeidsrecht-2","tag-dossieropbouw","tag-schoonmaak"],"acf":[],"_et_pb_custom_css":"","yoast_head":"\n
As soon as this was discovered, the employee was no longer welcome on the site (“persona non grata”). He was informed of this in consultation with the supermarket. Instead of opting for dismissal, the cleaning company transferred the employee to a different site.<\/p>\n
<\/strong>In this matter, the employer had insufficient grounds available to be allowed to lawfully dismiss the employee. Had it wanted a stronger position in this case, it would have been wise to clearly lay down such rules in advance in a zero-tolerance policy. In situations like this, transfer is in any case a good alternative. This case also shows that it is essential to take the right steps and not to deploy a drastic remedy such as (summary) dismissal too quickly. Especially since this could bring far-reaching financial risks for you (retroactive continued salary payment, transition payment, an additional fair compensation, legal costs, etc.). Proceed carefully, as the employer did here.<\/p>\n