A manager has an employment contract containing a confidentiality clause with penalty clause. He terminates his employment contract to join a potential competitor. His former manager already works there. He sends her a file with the monthly sales for each shop. This comes to light by accident and immediate dismissal follows.
How does the mail come to light?
During a pre-employment conversation with the prospective employer, there was talk of stealing information. Accidentally, this conversation became a pocket call and was recorded on the voicemail of a colleague at the old employer. That colleague forwarded this internally. An investigation checked the manager's business mailbox and revealed the email sent with the turnover file.
Subdistrict court considerations
The subdistrict court found that by sending the e-mail, the manager had breached the confidentiality clause. The e-mail contained confidential and business-sensitive information that became known to him in the performance of his duties. By sending the e-mail, that data came into the hands of a third party. Emailing such data to a third party provides an urgent reason for dismissal.
It is evident that such information should have remained within the employer's business and familiar business environment. It is also a factor here that the employer has a clear policy when it comes to protecting its confidential and trade secret information, as described in a Code of Ethics.
That the manager might have e-mailed these details by mistake, as he argued, is not considered by the subdistrict court to be significant for the existence of an urgent reason. After all, a summary dismissal does not require intent or culpability. A carelessness error can therefore also constitute an urgent reason. Moreover, the subdistrict court did not consider it plausible that the manager in this case sent the data by mistake.
The fact that the former manager promptly deleted the data received and it was not further disseminated within the other company does not alter the fact that this data was taken outside the employer's business environment and this action by the manager may be extremely severely blamed by the employer.
Moreover, for the subdistrict court, answering the question of whether or not the other company should be seen as a competitor is irrelevant. What matters is that, by sending his e-mail, the manager disclosed company-sensitive, confidential information, and that fact alone makes it an urgent reason.
Conclusion subdistrict court
The subdistrict court held that the instant dismissal was legally valid. The manager's conduct not only constitutes an urgent reason, but is also seriously culpable. No transitional compensation is therefore due. The manager breached the confidentiality clause and therefore owes the agreed fine of €4,500.
Note: In addition to the agreed confidentiality clause, the court also considers in its judgment the existence of policy on this point in the form of the employer's Code of Ethics.
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