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Dismissal on ground e (reprehensible conduct) or ground g (strained relationship) is only successful if you have first sufficiently addressed the employee and given them opportunities. An employer who wanted to dismiss a captain for years of inappropriate behavior was unsuccessful: he had never raised the issue of the behavior before and held only two conversations. Ground i (cumulation) did not help either. Therefore, warn and document in a timely manner.
Terminating an employment contract is not easy. Under ground e, the employee must have been addressed regarding their behavior often enough—meaning a written warning and periodic discussion of the behavior. Under ground g, there must have been opportunities to repair the relationship. A notable case illustrates this beautifully.
The case: a captain with unusual habits
A captain of a gas tanker (ECLI:NL:RBROT:2021:9060) exhibited behavior that the employer did not approve of: a communication style perceived as unpleasant, sunbathing naked on deck, and receiving massages from sailors for a small fee. The captain admitted the facts — they had been ongoing for years — but emphasized that he communicated openly about them and made his massage requests through intermediaries to avoid pressure from the hierarchical relationship; an employee confirmed that he never exerted any pressure.
Employer wishes to terminate — on three grounds
The employer found the behavior inconsistent with company values and concluded after two meetings that there was insufficient self-reflection and that trust had been lost. He asked the subdistrict court judge to dissolve the employment contract on the grounds of e (culpable conduct), g (strained relationship), and i (cumulation). Read more about the grounds for dismissal.
All grounds rejected
Ground E: the judge found the behavior undesirable and outdated, but took into account that the captain had been exhibiting it for a long time without the employer ever intervening or addressing him about it, that there was no question of sexually inappropriate behavior, and that he had promised to stop. Insufficient grounds for dismissal.
G-ground: with only two conversations, the captain never really had the chance to repair the relationship and regain trust. Not a lasting and irreparably damaged relationship.
Ground I: the accumulation of nearly substantiated grounds also did not apply. The employment contract was not dissolved.
Frequently Asked Questions
Can I fire an employee for inappropriate behavior?
Only if you have first spoken to him sufficiently and warned him, so that it is clear that the behavior will not be tolerated. Ignoring behavior for years and then suddenly dismissing him rarely holds up.
What do I need to do before a dismissal on the grounds of serious misconduct?
Giving the employee realistic opportunities to repair the employment relationship. Two conversations are often insufficient to speak of a permanently disrupted relationship.
Does the i-ground save an incomplete dismissal?
Not automatically. The cumulative grounds only work if the individual grounds are nearly fully developed; if there is a lack of warnings and opportunities for remediation, the i-ground will not help either.
Carefully working towards a dismissal
Document and give timely notice. The employment lawyers at MKB Juristen help you build the case file and ensure the dismissal stands up. View our expertise in employment law or schedule an intake interview .
