A notice of illness may not be quickly questioned by the employer, at least: not without the intervention of a company doctor. In the week's ruling, according to the subdistrict court, there was nevertheless a legally valid dismissal.
Denied leave request
The employee, working as a purser for Transavia, had requested leave for a special day: her uncle's wedding. The employer rejected the leave request, as the employee was urgently needed on the shop floor that day. Thus, her absence could cause serious financial and reputational damage to Transavia. After all, there would then not be enough employees to carry out the flights as scheduled. Transavia therefore warned the employee for the sake of completeness that unjustified sick leave could have consequences.
Sick notice
However, the employee wanted to attend the wedding at all costs. Therefore, she reported sick for the day anyway and attended her uncle's wedding. When the employer confronted her about this, she honestly acknowledged having wrongfully called in sick. Her requests for leave for that day had been denied and she saw no alternative but to call in sick to be able to attend the wedding. The employer therefore filed a rescission petition requesting that the employment contract be terminated for grossly culpable conduct.
Ban on notice during illness and the consequences
Although the prohibition against giving notice during illness was involved, the subdistrict court held that wrongful sick leave to attend a wedding was not related to the employee's disability. Reports from the company doctor were also reviewed. These showed that the employee was now unfit for work, but had not been so at the time of reporting sick.
Judgment of the Rotterdam subdistrict court
The subdistrict court ruled in favor of the employer. A reasonable ground for dissolution of the employment contract can be assumed, in the opinion of the sub-district court, if an employee who is not unfit for work wrongfully calls in sick after requests for leave have been refused and despite warnings. Moreover, it was clear to the Subdistrict Court that that the purser had made a deliberate choice; after all, Transavia had warned her that an unjustified sick report could have consequences. The purser's employment contract was therefore dissolved because of culpable action, but there was no serious culpable action. The employee had to pay Transavia's legal costs of EUR 921,00, but received a severance payment of EUR 9,000 because of culpable actions, but not serious misconduct.
This blog was written by Mr. Stijn Blom, employment lawyer at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and assists entrepreneurs daily with a wide range of employment-related matters. From dismissal cases to drafting watertight contracts and policies – with his practical and personal approach, he helps employers and employees move forward. Want to know more?Visit Stijn's page.
Arbeidsadvocaat.nl is happy to think with you if you are facing a dispute about a (wrongful) sick report or leave request. Please feel free to contact us.
May 2024
