Hearing Both Sides of the Argument In the Event of a Summary Dismissal
A discussion of the judgment of the Court of Appeal of The
Hague dated 31 July 2008, JAR 2008/241
Summary Dismissal
A summary dismissal is a notice of termination for an urgent
reason as a result of which the employment agreement ends
immediately. There are various formalities. One of these is that
the reason for dismissal must be communicated simultaneously with
the dismissal and must be clear to the employee. The dismissal must
furthermore be immediate. It is therefore not wise to let the
employee finish his work before summarily dismissing him. However,
it appears from case law that the employer may - or even
must - actually take some time to conduct an
investigation, to hear the employee, to have internal consultations
and/or to ask for legal advice. The employer must act expeditiously
in this respect, and it will depend on the circumstances of the
case whether this procedure may take some hours or some days. The
importance of the above-mentioned efforts of the employer for the
validity of a summary dismissal has appeared (once again) from a
recent judgment of the Court of Appeal of The Hague.
The
Facts in the Judgment
An employee was employed as practice counselor at a university
of applied sciences. In 2004 the father of a female student
submitted a written complaint for sexual harassment of his daughter
by the employee. Some days after the complaint was filed, the
employee was heard and summarily suspended. Next, the employer
informed all employees that the employee had been suspended in
connection with a serious incident. One week later the employer
called the employee twice to invite him to a meeting, but the
employee did not comply for medical/psychological reasons.
Subsequently, the employee was summarily dismissed. Next, the
student also reported the sexual harassment to the police. In the
end, the employee was acquitted of the charge. The employee claimed
a declaratory judgment stating that the summary dismissal was
invalid. The Court has awarded all claims.
The Court of
Appeal of the Hague on Hearing Both Sides of the Argument
The Court of Appeal ruled in the appeal that the 'principles
of being a good employer' imply that an employer will have to
investigate the correctness of the facts and circumstances that may
constitute an urgent reason for a summary dismissal. According to
the Court of Appeal, an important part of the investigation is to
hear the employee. In this respect, the employer must fully
disclose the state of affairs with regard to the suspicions arisen
against the employee, so that the employee can defend himself
against the objections. The Court of Appeal ruled that in this case
the employer should have informed the employee about the complaint
before the start of the first meeting and should have let him
inspect the statement of the student. Furthermore, in the view of
the Court of Appeal, the announcement of the employee that he was
not able to have a discussion was no reason to decide not to hear
the employee once again. The university of applied sciences should
have conducted further investigations, should have asked the
employee when a meeting could actually take place and should have
pointed out the consequences of refusing a follow-up meeting to
him. The Court of Appeal concluded that the employee has had
insufficient opportunity to defend himself against the accusations,
as a result of which the investigation has not been conducted
properly. The Court of Appeal upheld the earlier judgment of the
Court that the summary dismissal is
invalid.
Tips
- An employer will have to hear the employee (at any rate,
give him the opportunity to be heard) and conduct a thorough
investigation into the correctness of the facts and
circumstances before proceeding to a summary dismissal.
Although there is no statutory obligation to hear or to
investigate in the event of a summary dismissal, it appears
from case law that the principles of being a good employer -
especially in the event of sexual harassment - entail the
above-mentioned obligations.
- A thorough and expeditious investigation is not an obstacle
for the promptness with which the summary dismissal must be
given.
- In many cases the hearing of the employee will have to
consist of two parts, namely a meeting at the start of the
investigation in which the employee involved is informed of the
objections raised, and a meeting at the end of the
investigation in which the employee is informed of the findings
of the investigation.
- The employer has an interest in forming a thorough opinion
about the situation through the hearing of the employee and the
conducting of an investigation. After all, if the summary
dismissal appears not to be legally valid, the employee may set
aside the dismissal and may claim reinstatement and continued
payment of wages in preliminary relief proceedings.