An employee of an installation company reported sick and then sat at home for almost a year. He told the company doctor and his boss that his symptoms had gotten worse and that he was not even able to drive a car. When his employer saw him working on his own house and had it videotaped, he summarily fired him. The mechanic challenged his dismissal, believing there was a serious invasion of privacy. The judge now rules that the invasion was minimal and the only way to conclusively establish that he was messing around.
This is according to a ruling by the Central Netherlands District Court, recently made public (1).
The employee joined the installation company on April 1, 2020. Almost a year later, on March 23, 2022, he reported sick. The mechanic reported that he was unable to perform work that required walking, pushing, pulling, lifting, carrying, kneeling, crouching, standing or changing positions frequently. Neither was driving a car. His boss looked into the possibility of doing modified work, but this proved impossible.
At one point, another employee of the installation company said he had seen the man in question driving a car. Shortly thereafter, someone went by the sick mechanic's house and saw that he was doing odd jobs.
The owner of the installation company suspected that the man had lied about his limitations. He then decided to hire a detective agency, which investigated the employee. Investigators observed the sick mechanic's home for three days, and captured footage as soon as he started doing jobs. Based on this footage, the employer summarily fired the sick mechanic.
The man did not accept the dismissal and went to court. He said his dismissal was unjustified because he had not lied about his limitations. He was only doing chores that did not interfere with his healing. He was also capable of doing suitable work, but his boss would not have offered it. Finally, his privacy would have been violated because his boss had hired a detective agency that had taken video recordings of him.
The owner of the installation company defended himself by saying that the dismissal was justified because the employee had lied about his limitations. Also, during his illness, he performed burdensome chores and drove around in a car. He further demanded that the mechanic return the company's tools, under penalty of a fine.
The verdict shows that the court does not believe the ailing mechanic's defense. According to the court, the images recorded by the detective agency speak volumes. That there would be a serious violation of his privacy is not shared by the court. The severity of the right to privacy was limited, according to the judge. Moreover, it was a legitimate way to find out the truth.
The defense that the work the mechanic performed on his own house did not interfere with his healing is not believed by the judge. Indeed, photographs clearly show the man making "many pulling and pushing movements" and lifting heavy items. "It is therefore unmistakable from this that the applicant could do more than he stated to the respondent and the company doctor," the court said.
The judge also faulted the mechanic for concealing the fact that he could drive an automatic. Three-quarters of the installation company's cars and buses are equipped with an automatic shifting system. That means he could have simply driven to work to perform alternative work.
Court: dismissal was justified
All in all, the district judge believes that the summary dismissal was justified. This means that the employer does not have to pay any severance pay or compensation for dismissal. Since the man owes the dismissal to himself, he can probably whistle for unemployment benefits as well. The employer is further entitled to "liquidated damages" of 3,255.92 euros.
Finally, the former employee must hand over the installation company's company property. Every day he waits to do so, he can count on a fine of 50 euros, with a maximum of 1,500 euros.
https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBMNE:2022:2960
