Employment Contract not Dissolved in Spite of Failure to Cooperate in Reintegration

The Sub-district Court could not dissolve the employment contract of an incapacitated employee who did not cooperate in his reintegration, since the failure to cooperate was a result of his illness.
An employee had been employed by a building materials supply company since 2007. He had reported sick in July 2023 for pains in his hand. In 2019 and 2020, the employee had also been labour incapacitated for a long period due to psychological complaints.
On 17 April 2024, the employee did not show at the occupational physician. The employee could not be contacted either. Therefore he received a written warning.
The employee was warned that payment of his wages would be discontinued if he did not contact the employer. When the employee contacted the employer by telephone, end of April 2024, he explained in an incoherent way, while taking an aggressive tone.
On 7 May 2024, the employee did not show at the occupational physician's office. And once again, he was unreachable. One day later, however, the employee, unannounced, appeared at the occupational health and safety service, where he stormed out angrily, slamming the door, when it turned out that the case manager was not available. Then the employee received a second written warning, in which the employer announced that the employee's wage payment would be suspended with effect from 14 May 2024 until the employee would be available again and would have seen the occupational physician.
On 21 May 2024, the employee failed to be present at an appointment with his employer and, on 28 May 2024, he missed the consultation with the occupational physician. And once again, the employee could not be reached. These failures resulted in a third official warning.
On 10 June 2024, the employee contacted the employer about the non-payment of his wages. On 11 June 2024, the occupational health and safety service's case manager, again, did, not succeed in trying to contact the employee by telephone. Then the employee received a fourth and final official warning, in which he was informed that the employment contract would be terminated if he did not report at the occupational physician's office on 21 June 2024. The employee failed to appear at the office.
Subsequently, the employer applied for a UWV expert opinion on the question of whether the employee actually met his reintegration obligations. The UWV could not provide an expert opinion, however, because the employee failed to appear at the UWV doctor's office after having being summoned to do so. The employee also did not respond to an invitation to sign the first-year evaluation at the employer's office on 17 July 2024.
Then the employer requested the Sub-district Court to dissolve the employment contract.
During the Sub-district Court’s hearing, the employee showed up, though without a lawyer.
He argued that he had not been able to appear at the occupational physician's office for security reasons. His telephone had allegedly been hacked several times and he no longer had a telephone. Something had allegedly been done against him, which there was evidence of, but which he could not talk about for security reasons. An X-ray scan or total-body scan would clarify why he had not met the appointments. Since the employee indicated that he had a lawyer, that he wanted to discuss the case with this lawyer and that he would bring his lawyer at a new hearing, the Sub-district Court decided to set a new hearing date for dealing with the request to dissolve the employment contract.
Again, the employee was the absentee, however. The employer had requested the second hearing to be cancelled, because he had been informed that the employee had been involuntarily admitted to a psychiatric institution on September 9, 2024. The Sub-district Court, however, had decided to continue the hearing nevertheless.
The Sub-district Court then concluded that the employee had not fulfilled his reintegration obligations. Yet, the Sub-district Court did not dissolve the employment contract, because it was prevented by the prohibition on termination during illness. This prohibition on termination would not apply if the employee had not fulfilled his reintegration obligations without a good reason and if the employer had given the employee written notice to do so and then had stopped paying the salary. According to the Sub-district Court, this exception did not apply, however. The Sub-district Court considered that the employee had good reason to not fulfil his reintegration obligations. The Sub-district Court deduced this from the following circumstances:
• The employee had already experienced psychological problems in 2019/2020.
• The employee had been incapacitated for work since July 2023, and in April 2024 a sudden change in the fulfilment of the reintegration obligations took place.
• The employer himself suspected that psychological problems played a role in the failure to fulfil the reintegration obligations.
• The behaviour at the hearing and the mandatory admission also suggest that there were psychological problems.
According to the Sub-district Court, this made it sufficiently plausible that the failure to comply with the reintegration obligations was wholly or partly caused by the employee's illness.

In the above case, the employee failed to comply with his reintegration obligations, the employer duly took all necessary steps, including filing a request to dissolve the employment contract. Yet, the employment contract was not dissolved.
The Sub-district Court assumed that the failure to comply with the reintegration obligations was wholly or partly due to the employee's illness. If this was really the case, the decision taken is, of course, correct. For the employer, however, it is quite unsatisfactory that it could not be established with certainty. Had the employee been present during the proceedings, the Sub-district Court could have insisted on submission of a statement from a practitioner, which might have provided more clarity. Due to the employee's absence at the hearing, the Sub-district Court was left with no alternative but to establish what was plausible on the basis of the known facts.
Where the employment contract may not have been dissolved, the wage payment suspension is still on the table. After all, the employee had not filed a claim for payment of his wages.
If the employer wants to be certain that the failure to comply with the reintegration obligations was the result of the employee's illness, he could insist on suspension of the wage payments. In that case, the employee would be forced to file a claim. It would be an occasion for the employer to request provision of absolute clarity from the employee on the question of whether or not the failure to comply with the reintegration obligations had been the result of the employee's illness.
It is quite questionable, however, whether this would result in a better outcome for the employer.