Dismissal for criminal conviction
Written by:
Hein Kernkamp
Can an employee be fired for committing offenses outside working hours? No salary needs to be paid during (pre-trial) detention or imprisonment, but can the employee also be fired for that reason? The short answer is that it depends on the circumstances of the case.
Summary dismissal for criminal conviction?
The standard judgment of the Netherlands Supreme Court on whether detention justifies a summary dismissal is the judgment ABN AMRO / X of December 17, 2010. An employee of the credit administration of ABN AMRO's Corporate Clients department was sentenced to prison for fornication with his underage stepson. He has always kept his employer informed of what was going on, and has also reported that an initial appeal against the conviction had been withdrawn. Shortly afterwards, the bank fired the employee with immediate effect because, the bank stated, confidence in the employee had been irreparably damaged.
ABN AMRO's position was that the mere fact that an employee does not appear at work as a result of detention for a shorter or longer period of time in itself constitutes grounds for immediate dismissal and that this is once again the case if the employee has irrevocably been sentenced to a (long) prison sentence.
However, the Netherlands Supreme Court ruled that the question of whether an irrevocable criminal conviction with detention justifies an instant dismissal must be assessed on the basis of all the circumstances of the matter in connection with each other, just like with any other instant dismissal. Barring special circumstances, an irrevocable criminal conviction in principle does not constitute an urgent reason for summary dismissal, even if it concerns a conviction for a serious offense, as a result of which the employee remains detained for some time.
Detention as grounds for dissolution of the contract by the court?
Dismissal for criminal conviction is legally possible in the Netherlands, as long as the legal requirements are met.
In principle, an employer who wishes to have the employment contract dissolved by the subdistrict court because of a criminal conviction of an employee will have to choose one of the grounds for dismissal formulated in the law and must sufficiently substantiate that the employment contract must be dissolved on that basis. As grounds for dismissal in case of a criminal conviction serve:
e. Culpable act or omission
g. Disrupted working relationship
h. Other circumstances such that continuation of the employment contract cannot be required
i. Cumulation ground (multiple grounds for dismissal possible since 2020)
The h ground
In a decision of the Amsterdam District Court of 8 May 2019, the subdistrict court dissolves the employment contract of a suction truck driver, who was convicted for violent theft and prohibited possession of weapons. The subdistrict court judge ruled that an employment contract is entered into to perform work and the employer must be assured that the employee is available for this. In a situation in which the employee is unable to meet his obligations under the employment contract for a long time, the employer in principle cannot be reasonably expected to continue the employment, according to the subdistrict court judge in that matter.
No transition compensation
The employee also receives no transition compensation. The subdistrict court judge ruled that the employee had to face the consequences of a long prison sentence that the employee by committing the crime had accepted the risk of the consequences of a long sentence. One of the consequences is that the employee is unable to meet his obligations under the employment contract for a long time and he can be seriously blamed for this. The conclusion is that he cannot claim a transition allowance upon termination of the employment contract.
The e and g ground
The Rotterdam branch of the container repair company Medrepair threw it on the ground E and G, in a case of an employee who was arrested following investigation by the Hit And Run Container (HARC) team, a collaboration of Customs, FIOD, Seaport Police and the Public Prosecution Service in Rotterdam, which deals with the detection of the import and transit of drugs in the port of Rotterdam.
In this case, it concerned the following. On May 16, 2017, an inspection of an MSC container filled with bananas from Ecuador found 20 kilos of cocaine. The cocaine was removed from the container and the container was then filled with dummies (containing cocaine) forwarded to the Medrepair company site for a scheduled cleaning.
The employee was subsequently arrested on May 18, 2017 by. On the same day, Medrepair informed the employee in writing that he would no longer entitled to wages because he is not available to work due to detention. Later the employee was sentenced on 6 September 2017 by the District Court of Rotterdam to 2 years' imprisonment, of which 6 months conditional, for involvement in the deliberate import, delivery and transportation of narcotics. The employee appealed the judgment.
Medrepair filed a petition to dissolve the employment contract and stated in it that there was serious culpable conduct on the side of the employee and that the working relationship had been seriously and permanently disrupted. The employee, on the other hand, stated that he had not yet been irrevocably convicted, because the appeal in the criminal case was still pending. Accordingly, Medrepair was unable to claim that the employee committed a serious crime.
In the judgment of 12 September 2018, the Subdistrict Court makes short work of this defense. In the period prior to the proceedings, the employee had, without reasonable grounds, consistently refused to provide information or documents regarding his criminal case and the procedural progress of the criminal justice process. As a consequence of the employee not being transparent, Medrepair was unable to assess whether it wanted to attach legal consequences to the conduct and, if so, which ones this should be. This failure to provide information could, according to the subdistrict court, in itself be qualified as culpable action. The contract is therefore dissolved.
So far things are going well for Medrepair. But culpable action is not yet serious culpable action. And that is necessary to be released from the obligation to pay the transition payment. Medrepair is therefore still ordered to pay the employee the transition payment of € 12,354.84 gross. The second case discussed therefore shows that dismissal for criminal offenses and detention remains a difficult subject.
Further information on dismissal for criminal conviction
If you are confronted with an employee in the Netherlands, who is suspected of criminal offenses, you can of course submit your question to us without obligation. Contact us for an appointment. We are happy to help you find the right strategy. It is not without reason that our motto is: "Your problem, our concern."
More information?
Hein Kernkamp will gladly help you further.
