Refusing to Work in Conflict with Company Doctor’s Opinion. Reason for Summary Dismissal?
A discussion of the judgment of the Dutch Supreme Court
08/04609, LJN BL 4086
The Facts
In the period from 13 April 2007 up to 11 June 2007 an employee
was unfit for work for a couple of times and on 11 June 2007 she
once again reported sick because of burn-out complaints. The
company doctor deemed that as of 18 June 2007 the employee was able
to work 50% and as of 2 July 2007, 100%. On 18 June 2007 the
employee did not show at work. The employer pointed out to her the
possibility to obtain an expert's opinion in order to determine
the extent of the ability to work or incapacity for work. The
employee, however, did not seek this expert's help. Next, the
employer summoned the employee on 21, 22 and 28 June 2007 to come
to work. The employer also pointed out that if the employee
continued to refuse to work, she would be summarily dismissed. The
employee's family doctor declared on 26 June 2007 that the
employee was not able to work and he discussed this with the
company doctor by telephone. The employee's attorney informed
the employer on 29 June 2007 that the employee was still not able
to work. The employer's patience, however, was exhausted and on
2 July 2007 the employer proceeded to summarily dismiss the
employee.
An expert of the UWV (Employee Insurance Implementing Body)
ruled after 2 July 2007 that the medical situation had deteriorated
with respect to the earlier expert opinion. The employee was of the
view that the summary dismissal had been wrongly given and she
therefore initiated a legal action in which she claimed wages and
employment. The action to recover back salary was allowed because
in the Subdistrict Court's opinion it cannot be assumed just
like that that there was unpermitted sick leave. The employer
lodged an appeal and particularly relied on the three demand
letters in which the application for an expert opinion was pointed
out. In addition, the employer argued that the employee had acted
in conflict with the code of conduct which also states that the
employee must apply for an expert opinion. The Court of Appeal
upheld the Subdistrict Court's judgment and considered that the
summary dismissal was based on the repeated refusal to work. There
is no question of refusal to work if the employee could reasonably
have assumed to be unfit for work. In the present case, because of
the declarations of the family doctor, the doctor of the UWV and
the attorney, the employee could assume this.
The
Supreme Court
The employer disagreed with the Court of Appeal and appealed to
the Supreme Court. In this appeal the employer did not dispute the
general starting point that there is no question of refusal to work
if the employee could have reasonably assumed to be unfit for work.
The employer did argue, however, that the circumstances that the
employee was summoned three times to come to work and that the
employee has acted in conflict with the code of conduct, are
relevant for the question of whether there is a legally valid
summary dismissal.
The Supreme Court ruled that the justification for not going to
work constituted by the incapacity for work due to sickness does
not lapse in the event that three demand letters to resume work
have been sent. All the more because the family doctor had had
contact with the company doctor and the employee's attorney had
informed the employer that the employee had not responded to the
demand letters to resume work due to her incapacity to work. The
Supreme Court furthermore ruled that the mere fact that the
employee did not comply with the code of conduct, i.e. the
regulations for checks, did not constitute a serious reason for
summary dismissal. This could only be the case if there were
additional facts and circumstances. In such a case, the first
possibility to fall back on will be a suspension of the payment of
the salary. In the present case no additional circumstances have
been brought forward and there was no suspension of payment of the
salary. As a result, the complaints brought forward by the employer
did not succeed and the appeal to the Supreme Court was
rejected.
Conclusion
Dutch employment law imposes a large standard of due care on
employers if they are confronted with a sick employee. In
principle, the opinion of the company doctor is leading when
answering the question how the employer must act. However, it
follows from the above-mentioned judgment that if there are other
facts or circumstances on the basis of which the employee may
reasonably assume that he is unfit for work, it is required to act
with care, even if there is a clear opinion of the company doctor.
Moreover, an employer must first take less far-reaching measures,
such as a warning, as occurred in this case, and the suspension of
the continued payment of salary. Only when it is clear that the
employee cannot reasonably think that he is unfit for work or when
the employee repeatedly does not comply with the regulations for
checks and there are additional circumstances, there is a reason
for summary dismissal. Therefore, be careful with sick
employees.