Cold employee refuses to go home; dismissal possible?

An employee, employed for over 20 years, was coughing severely and was asked by several colleagues to go home and get tested, in accordance with company protocol. He refused to do so. Two days later, he reported by WhatsApp message that he had tested positive for Covid-19. The Rotterdam subdistrict court ruled that the employee had not acted seriously culpable, but that he had betrayed the trust of his colleagues and supervisors. An important factor for the judge was that the employee had not shown any remorse for his conduct, not even during the proceedings. Indeed, the employee continued to maintain that the statements of his colleagues were incorrect and that they had lied. On this basis, the subdistrict court dissolved the employment contract, while awarding the transitional compensation.

Thus, the mere failure to comply with the testing rules does not simply lead to dismissal, but in conjunction with other circumstances/violations, it may.

Clear policy

In the Retail industry, with such actions, an employee endangers not only his colleagues, but also the customers in the store. Therefore, an employee may be acting more culpably in a retail store than in another business due to the more severe circumstances. It is therefore important for companies in the Retail industry to have good protocols in place and to properly monitor compliance with them. After all, as a retailer, you also have responsibility for the safety of your customers. Moreover, as a retailer, you yourself run the risk of having your store closed because you do not comply with corona rules. One of those rules is that people who have complaints should stay at home.

Not always grounds for dismissal

However, the line is thin. A gas station employee appeared at work after scheduling a testing appointment. When she tested positive the following day, she still appeared at work for a pack of cigarettes. The district judge ruled that it could not be established that the employer had given sufficiently clear instructions on how employees should behave around corona (testing). Moreover, footage showed that other co-workers were also not following the rules very closely. Due to a lack of strict corona policy, the request for dissolution of the employment contract did not stand.

Clarity is essential

Clarity about and enforcement of the standard corona rules and the special agreements for Retail are thus of great importance for a retailer in its relationship with the employee. Therefore, it is crucial to establish clear protocols around this and act accordingly. If the policy is clear and employees do not abide by it, under circumstances this can be grounds for dismissal. Always consult legal counsel before making such decisions.