Abuse of alcohol or drugs can lead to major problems in the workplace. Think of unsafe situations, dysfunction and regular and/or long-term disability. The employer sometimes wants to unilaterally terminate the employment contract in such a situation. What are the possibilities.
Dissolution by the subdistrict court?
Of course, whether dissolution is possible depends on the circumstances of the case.
If addiction is an issue, it is often assumed on medical evidence that the employee is incapacitated. The employer then runs up against the ban on notice (during illness). Since the introduction of the WWZ, the subdistrict court tests whether the reasons for termination are related to the ban on notice. If there is the slightest connection to this prohibition on notice, a request for dissolution (for example, on the grounds of primarily culpable conduct and, in the alternative, a disrupted working relationship) will fail.
However, when an employee fails to fulfill his reintegration obligations without good reason, the prohibition on notice can be set aside. This can of course consist of not cooperating with a plan of action or not following the instructions of the occupational health physician. If the employee seeks treatment for his addiction or terminates his treatment (without good reason) prematurely, this also qualifies as a violation of these reintegration obligations.
If, for example, the (rehab) clinic would argue that the treatment is no longer of any use because the employee keeps relapsing into his addiction, then dissolution could also be considered.
Instant dismissal as an alternative?
Drunkenness or other debauched behavior (drug use) can also be an urgent reason for summary dismissal. If the behavior is serious enough, weighed against the personal circumstances of employer and employee, in the majority of cases the summary dismissal will stand. The employer does not face a notice prohibition when summary dismissal occurs.
However, often the transitional compensation must still be paid.
On the one hand, it is established case law of the Supreme Court that no culpability is required for the acceptance of a summary dismissal. In case of addiction, often no culpability will be assumed, but this therefore does not affect the urgent reason. On the other hand, there is always a silver lining. If there is no serious culpability (i.e. in the case of addiction), the employee retains his entitlement to the transitional compensation.
Thus, a summary dismissal followed by the offer of a settlement agreement containing the transitional compensation can be a good alternative to a complex and unlikely dissolution procedure (with appeal).
More information?
Are you dealing with an addicted employee and would you like to know more about reintegration, dismissal or a legally valid ADM policy? Then take part in LVH Advocaten’s latest labor law meeting on October 26. Other current labor law developments will also be discussed.
