Companies that work with dangerous substances often have a total smoking ban in place, which includes the yard. An employee of Elementis Specialties in Delden was recently dismissed with immediate effect for violating the smoking ban that applies at that company. The employee subsequently applied to the subdistrict court of Almelo to claim continued payment of wages and reinstatement.
On 13 August 2010, the subdistrict court dismissed the claim. The court found – among other things – the following:
The employee had joined the company in May 2001. Since November 2008, smoking has been prohibited on the entire company premises, except within a certain area indicated with a yellow line. At certain times, employees are allowed to smoke behind this yellow line. The relevant employee was caught smoking outside the designated area and designated times, and was dismissed with immediate effect.
The district court found that the employer is free to decide to impose a smoking ban, as it concerns a company that works with dangerous and flammable substances. It is not up to the employee to judge whether an exact location is safe to smoke in or not. According to the applicable collective labour agreement and the associated regulations, violation of the smoking ban was considered a “serious violation”, subject to dismissal with immediate effect. Several newsletters were distributed amongst the employees, which made mention of this. In addition, on 21 January 2009, the employer sent the employees an email with the following text: “as of today, anyone caught smoking behind the yellow line or in between the laboratories will be dismissed with immediate effect. Safety is our highest priority, which means that we cannot afford such risks.”
All things considered, the subdistrict court came to the conclusion that the employee’s dismissal with immediate effect was justified.
The employee appealed this decision of the subdistrict court. On 14 August 2012, the Court of Appeal of Arnhem ruled that violation of the smoking ban must be considered a deliberate failure to comply with orders/instructions (a serious violation). The Court of Appeals considered it important that all the employees had been expressly warned of the consequences of violating the smoking ban, i.e. that this would lead to dismissal with immediate effect. The Court of Appeals also ruled that the dismissal with immediate effect was justified.
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If you require further information in connection with this article, you can contact Mieke Bestebreurtje.
