Use of testers and samples: now or not grounds for summary dismissal?
Date: February 01, 2018
Modified November 14, 2023
Written by: Antoinette Niebeek
Reading time: +/- 2 minutes
Date: February 01, 2018
Modified November 14, 2023
Written by: Antoinette Niebeek
Reading time: +/- 2 minutes
Instant dismissal is and always has been a thorny issue. It is difficult to predict when the judge will uphold the dismissal and when he will not, if the employee opposes it. Shortly after each other, the courts recently ruled in two similar cases involving a so-called "trivial offense," with different outcomes.
In the first Rotterdam District Court case of December 27, 2017, a Kruidvat employee had smeared herself with a free Nivea body lotion tester during working hours behind the cash register, intended to be given away to customers who had spent at least €10 in the store. Her branch manager caught her doing this after which the employee was summarily dismissed. The employee objected to the dismissal. She argued that the product had no sales value, that Kruidvat more or less tolerated the use of testers, and that she could advise customers better if she had tested the product herself. The subdistrict court upheld the summary dismissal. Kruidvat had a clear policy and a sufficient interest in strict compliance.
In a North Holland court ruling published last Monday, January 29, 2018, an employee of the Ici Paris XL gave samples and gifts intended for customers to her brother free of charge. This instant dismissal, despite violating the applicable regulations, did not hold up. The policy had apparently not been properly communicated nor consistently adhered to. This could not be held against the employee, the judge said.
Bagging offenses, in which the employee is guilty of stealing items of small value or significance, are more common in case law regarding summary dismissal. For example, an Action employee was summarily dismissed for eating a bag of chips (a "break item") torn open while at work, instead of emptying it into the trash according to protocol. Action had a clear zero tolerance policy on theft and fraud and enforcement of its house rules, which the employee was familiar with. Nevertheless, the Limburg District Court annulled the immediate dismissal because the employee's personal circumstances warranted it. The employee in question was a single mother struggling to make ends meet.
That ended differently for a butcher's employee. She took home a carton of Optimel that was past its date and a few spoonfuls of the salmon salad made available for lunch and was summarily dismissed as a result. The Amsterdam court showed no mercy and upheld this dismissal. The judge considered that the employer had a zero tolerance policy, that the consequences of acting in violation of the policy were sufficiently clear to the employee, and that, moreover, the employee had been warned earlier.
Case law is capricious and the outcome depends on the specific circumstances of the case, but at least the following aspects play an important role:
The question of the extent to which the stolen property represents actual economic value is not so important. In particular, the court tests whether the employer has a zero tolerance policy so that the employee may be aware that he runs the risk of summary dismissal. If that is the case, the judge may still set aside the instant dismissal because the personal circumstances of the employee in question require it.
In short: a summary dismissal for a trivial offense may hold up in court, but caution is and always has to be exercised!
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