A dental hygienist works 24 hours a week as a salaried employee at a dental centre. He is suspected of threatening, stalking and extorting colleagues and their relatives. For this, he is even temporarily remanded in custody. The employer proceeds with immediate dismissal, although the police did not want to share evidence that the dental hygienist was actually involved.
Is the instant dismissal justified?
To assess whether the instant dismissal is valid, the stated reasons as stated in the letter of dismissal are normative. The dispute is therefore delimited by the allegations stated therein. It follows from the letter that the immediate dismissal is based on criminal conduct, which can be summarised as threatening, stalking and extorting employees of the centre and their relatives.
Both parties agree that those acts are so serious as to warrant instant dismissal. According to the employer, the criminal suspicion, combined with the fact that the acts are of an employment nature, is sufficient to assume that those acts were committed by the dental hygienist.
However, the substantiation that was supposed to show why the dental hygienist was considered a suspect by the judiciary was not brought into the case. Despite requests, the police did not want to provide those documents to the employer. Therein lies the sore point in this case. After all, since the dental hygienist disputes that he committed the enumerated offences in the dismissal letter, it is still up to the employer to make it plausible that he is indeed the perpetrator. The court does want to assume that the police and judicial suspicions are based on serious grounds but, without an insight into the criminal file, it must also take into account the possibility that the dental hygienist will not be convicted. The mere circumstance that the dental hygienist is classified as a suspect in a criminal sense is insufficient to assume that he is the perpetrator.
Unable to establish with sufficient certainty that the dental hygienist was guilty of any of the facts contained in the letter of dismissal, the court sees no need for further evidence and finds that the summary dismissal was not legally valid.
The dissolution of the employment contract
The dental hygienist's employment was therefore not terminated by the summary dismissal. The employer asked the court to dissolve the employment contract on the grounds of culpable conduct. In this respect, it was held that culpable conduct cannot be established with regard to the criminal conduct as considered above. The employer did make other general reproaches to the dental hygienist, which can be summarised as bad employee behaviour. However, these are not concrete so the court will ignore them further.
Since early 2025, the dental hygienist has been employed by a new employer for working 29 hours a week. He only told this at the hearing in response to questions from the employer. Quite apart from anything else, the employer is therefore faced with an employee who is no longer fully employable for the working hours they agreed on together, namely 24 hours per week. The employer cannot therefore reasonably be required to continue the employment contract.
Impact
The employment contract is dissolved, subject to one month's notice.
The dental hygienist spent six weeks in detention. For that period, he was not entitled to wages. However, after this period, the employer should have resumed payment of wages. The employer must still pay that amount.
The fact that the dental hygienist has a new job was only brought forward at the hearing at the last minute and, moreover, at the employer's request. In concealing the new employment, the dental hygienist breached his obligation to provide full and truthful evidence of all relevant facts. The circumstances of the case give reason to moderate the wage claim from the commencement of that new employment to nil.
As the employment contract is terminated at the initiative of the employer, the dental hygienist is entitled to transitional compensation.
The amounts still to be paid by the employer will be increased by the statutory increase of 50% and statutory interest.
Tip: In the case of seriously culpable behaviour by an employee, proceed with summary dismissal only if you can prove that behaviour.
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