Vomiting during a presentation causes a reasonable ground for termination?

Thursday, April 28, 2016 | Published by

Giving a presentation brings so much tension to an employee, that it causes a physical reaction (vomiting) as a result of which the presentation must be stopped. As a result of this incident, the employer (Grolsch, a Dutch beer brewery) requested termination of the employment agreement based on a disturbed working relationship. The court ruled that the employer acted seriously culpable, but ordered the termination of the employment agreement, awarding the employee a transitional payment of EUR 10,938.92 gross and a fair compensation of EUR 20,000 gross.

Background

The employee was hired on August 1, 2009 at Grolsch, in the position of Technical Brewer with a salary of EUR 4,400.45 per month. On July 14, 2015, the European Brewing Lead, Mrs. Z, visited Grolsch. The employee had to give a presentation to Mrs. Z during her visit and had to be available to answer any questions. During the presentation, the employee ran away because of imminent vomiting and vomited on the hallway due to extreme stress.

The Subdistrict Court ruled that there was an impaired working relationship, because of which, Grolsch was no longer required to continue the employment. Therefore, the court terminated the employment contract. The employee was entitled to a transition payment of EUR 10,938.92 gross.

Furthermore, the court ruled that the incident on July 14, 2015 caused an impaired working relationship and that Grolsch could be seriously blamed for that, because Grolsch was aware of the fact that the employee was very nervous in anticipation of the ‘confrontation’ with Mrs. Z, with whom the employee had a prior difference of opinion. The court stated that the employee could have expected Grolsch to ensure that the presentation was well prepared beforehand, together with the employee, in order to reduce the stress for the arrival of Mrs. Z. Furthermore, the employee could have expected Grolsch to protect the employee after the incident. If Grolsch had acted as a ‘good employer’, the employee would have been able to proceed with his current occupation. Instead, Grolsch aimed to terminate the employment. The court determined that such action was seriously culpable, as a result of which, the employee was entitled to a fair compensation.

As the system of fair compensation is new since 1 July 2015, the courts – until now – find it difficult to determine the amount of the compensation. This Subdistrict Court stated that the fair compensation must relate to the seriously culpable actions of the employer, whereby the consequences to the employee related to the termination of employment and the age and years of service of the employee are irrelevant. However, the fair compensation must prevent the employer from repeating such an act in the future and is therefore a form of punitive compensation. Therefore, the court awarded a fair compensation of EUR 20,000 gross. This means a total compensation of approximately 7 months after 6 years of service.1

Amendments Dutch Labour Law per 1 July 2015

Per 1 January, resp. 1 July 2015, the Work and Security Act (in Dutch: “Wet Werk en Zekerheid“) came into force, which dramatically changed Dutch mandatory employment law.

Now, the law provides eight reasonable grounds for termination:

  1. business/economic/organizational reasons;
  2. incapacity for work for over two years;
  3. frequent absence due to illness which has unacceptable consequences for the business operations;
  4. poor performance;
  5. culpable acts or omissions by the employee;
  6. refusal to perform responsibilities due to serious conscientious objections (in Dutch: “gewetensbezwaren”);
  7. impaired working relationship, or
  8. other circumstances as a result of which the employment agreement cannot be continued.

Furthermore, per 1 July 2015, there are two mandatory routes for termination: (1) permission from the Dutch Labour Office (in Dutch “UWV”) must be sought for the reasonable grounds as described above under (a) and (b); and (2) for all other grounds for termination, as described above under (c) up to and including (h), the employer must petition the court. Therefore, the employer can no longer choose, as was the case before 1 July 2015.

However, irrespective of the manner of termination (by the Dutch Labour Office or the court), the employer is obliged to pay a so-called “transition payment” (in Dutch: “transitievergoeding”) when terminating an employment agreement which has lasted for 24 months or more. The transition payment is 1/6th of a monthly salary for every half year for the first 10 years of service and 1/4th of a monthly salary for all years of service above 10 years. The transition payment is capped at EUR 76,000 or – if the employee is entitled to a higher annual salary – one annual salary.

In case of gross negligence of the employer, such as in the Grolsch case, a court may grant the employee an additional ‘reasonable compensation’. No clear criteria have been formulated (yet) to determine the amount of such compensation. Until now, only a few cases have been published, so case law is scarce. From the published cases, it may be concluded that the grounds for determining a compensation vary: one court included the consequences for the employee of the termination of employment, but the other only included the degree to which blame can be attributed. Furthermore, the amount (maximum) of the rewarded compensation varies, from EUR 2,000 to EUR 90,000 gross. It is unclear how this will develop in the near future.

Lessons for Dutch employers

In the Netherlands, an employer has a statutory obligation to act as a ‘good employer’. However, this is a broad definition that varies and is explained on a case-by-case basis, as it is subject to the specific facts and circumstances of the case. In this Grolsch case, the court ruled that the employer had to spend more time and effort towards the employee’s interest. Unfortunately, it is unclear where to draw the line.


1 Subdistrict Court Overijssel, hearing location Enschede, 21 January 2016, ECLI:NL:RBOVE:2016:212.


Image Credit: Vector image created with Inkscape by Maxxl2, and then manually edited by AnonMoos [Public domain], via Wikimedia Commons.