Introduction
An inappropriate relationship, sexual text messages during work hours, and termination without severance pay—it sounds like an extraordinary case. Yet the subdistrict court recently ruled that a director was indeed entitled to his bonus despite serious misconduct. How does the court reconcile this with the dysfunction in the workplace? In this blog, we discuss the remarkable ruling by the Zeeland-West-Brabant District Court.
The reason: an affair with a colleague's wife
The director of a company became involved in an affair with the wife of an employee at the same company. When that employee discovered the affair, he filed a complaint with management. Management launched an internal investigation, which revealed that the director had been in frequent contact with the woman via text messages, sending her sexual messages and photos, and even meeting with her during work hours. This behavior did not occur solely in a private setting, but also took place during work hours and even in the presence of clients.
No separation between work and personal life
The director claimed that he was able to keep his work and personal life separate. The small claims judge did not believe him. Text messages showed that even during a sales call, he had texted the woman, saying she was “constantly on his mind.” The judge also found his claim that he had worked enough hours outside of the affair to be implausible.
The court’s conclusion was clear: the director’s conduct was seriously culpable. This justified his termination of the employment contract without a transition payment.
Am I still entitled to a bonus? How does that work?
Despite the serious misconduct, the small claims court judge ruled that the director was indeed entitled to his bonus. The reason? The bonus policy stipulated that the bonus was contingent upon meeting certain targets. The judge found that these targets had been objectively met and that the company itself had not specified that such conduct would constitute grounds for denying the bonus.
So this wasn’t a discretionary bonus contingent on good behavior or performance, but rather a performance-based scheme. And that result—as bitter as it may sound—had been achieved.
Lessons for employers and employees
This ruling demonstrates the importance of clearly specifying in bonus schemes the circumstances under which a bonus may still be forfeited, including in cases of poor performance or misconduct. If such clauses are absent, an employee may still be entitled to financial compensation, even if the employment contract is terminated due to serious misconduct.
For employees, this serves as a reminder that professional success does not shield you from the consequences of inappropriate behavior. The director lost his position and his reputation, despite having met his business goals.
Conclusion
This case underscores the need for employers to carefully consider the terms of their compensation plans. An affair in the workplace and sending sexual messages during work hours constitute grounds for termination without severance pay. However, if the bonus plan is structured purely on a performance-based basis, it may still remain valid under certain circumstances. Integrity is therefore not only a matter of behavior, but also of precise legal wording.
This blog was written by mr. Stijn Blom, employment lawyer at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and supports entrepreneurs and employees on a daily basis with a variety of employment law issues. From dismissal cases to drafting watertight contracts and regulations - 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 have questions about bonuses. Please feel free to contact us .
April 2025
