A team leader at an IT company has not been at work for several months due to disability. The employer learns that in the meantime she does work elsewhere for 16 a week as a masseuse. She was summarily dismissed. The employee put up a defence.
Party positions
The IT company gives as urgent reasons for the immediate dismissal that the team leader entered into a second employment contract elsewhere for up to 16 hours a week without the required permission, that she performed these ancillary activities while unfit for work, and that this hampered her recovery.
The team leader disputes the existence of an urgent reason and also takes the view that the dismissal was not immediate. She acknowledges that she entered into a second employment contract. According to her, the IT company was already aware of the ancillary work and did not need permission to enter into a second employment contract.
Was the employer already informed?
The view that the IT company was already aware of her ancillary activities is not followed by the court. It can only be concluded from e-mail traffic and an interview report that the IT company was aware that she occasionally gave massages, but that is irrelevant. After all, the IT company gives entering into a second employment contract as the reason for the immediate dismissal.
Was employer consent required?
The next question is whether the IT company was entitled to require the team leader to report this. The law states that a clause whereby the employer prohibits or restricts the employee from performing work for others outside the times when the work is to be performed at that employer is null and void, unless the clause can be justified on the basis of an objective reason. The team leader argues that there is no such objective reason and therefore she was allowed to perform outside work without permission.
In this, too, the court did not follow her. The team leader performed the ancillary work on Monday and Tuesday evenings and all day Saturday. This involved work performed outside the times when she was required to work for the IT company. However, the IT company sufficiently substantiated and demonstrated that there was an objective justification for denying the team leader permission to enter into a second employment contract. Indeed, by entering into the second employment contract while she had a contract with the IT company for 40 hours a week, there was a risk of a breach of the Working Hours Act. It follows that the team leader should have sought permission.
Occupational disability and impeding recovery
The IT company argues that the ancillary work hampered the team leader's recovery. She herself argues that her recovery actually benefited from being physically engaged in massaging. The court cannot determine who is right in this.
However, it is established that the team leader should have informed the company doctor about her ancillary activities and failed to do so. It is evident that having a second employment contract for up to 16 hours a week is relevant information for drawing up a reintegration plan. This is all the more true as the team leader indicated during the reintegration that she wanted to pause scaling up because she found the extra hours tiring. Although the team leader argued that she actually gets energy from being physically involved in massaging, she also stated that only a small part of her work consisted of giving massages and that she also dealt with administration and speaking to clients. By not informing the company doctor about her ancillary activities, the team leader violated her reintegration obligations.
Judge's ruling on urgent reason for dismissal
There was an urgent reason for immediate dismissal. The team leader deliberately chose not to inform the IT company about her ancillary activities. She can be seriously blamed as she also did not inform the company doctor about her ancillary activities while she was unfit for work at the time of performing her ancillary activities. By her actions, the team leader damaged the IT company's trust to such an extent that the company could not reasonably be required to continue the employment contract.
Judge's ruling on immediate termination
The team leader also disputes the promptness of the termination. In support of this, she argues that the employer knew about her ancillary activities much earlier, but did not draw any consequences for months. Having already established that the IT company was not aware of the team leader's ancillary activities, the company has sufficiently substantiated that the dismissal was given without delay.
Judge's ruling on transitional compensation
The team leader, in case the employment contract did end due to the summary dismissal, requested that the IT company be ordered to pay a transition fee. The transition compensation is not due if the termination of the employment contract is the result of seriously culpable acts or omissions by the employee.
The instant dismissal was rightly given because it was based on an urgent reason. Although an urgent reason does not automatically coincide with seriously culpable acts or omissions by the employee, the facts and circumstances constituting the urgent reason in this case also constitute such serious culpability. This means that the request to order the IT company to pay transitional compensation will be rejected.
Judge's ruling on liquidated damages
Under the law, if the other party has exercised that power, the party that has given the other party an urgent reason to terminate the employment contract without delay, through intention or fault, owes the other party compensation.
It was established that the team leader knowingly gave the IT company an urgent reason for terminating the employment contract without delay. This means that she owes the IT company a compensation equal to the amount of the monetary salary for the period that the employment contract should have continued in the event of regular termination. The amount of liquidated damages is calculated at €8,100. The team leader is ordered to pay €8,100 to the IT company.
Note: A full-time employee may have good reasons for a side job. But doing it secretly could cost the full-time job plus liquidated damages.
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