Summary Dismissal for Failure to Comply with the Reintegration Obligations

A labour incapacitated employee who, for a month and a half, had failed to respond to calls from his employer, asking to comply with his reintegration obligations, and who had been inaccessible all the while, was rightly dismissed by his employer.

A warehouse employee who worked at a large company, offering logistics and courier services, fell ill on 16 January 2023. On 17 March 2023, the employee applied for a holiday for the period from 1 January 2024 to 8 March 2024. It was the employee’s intention to visit his family in Eritrea then. The request was approved.
As of 4 August 2023, the employee was allowed to make a gentle start with his reintegration.
On 2 September 2023, the employee bought an outbound flight ticket for the trip to Eritrea on 2 January 2024 and a return ticket for 8 March 2024.
On 19 December 2023, however, the employer largely withdrew the approved holiday because it would hindered the employee's reintegration. The employee then had permission to take no more than three weeks of leave. When they discussed the change, two days later, the employee agreed. The agreement made was confirmed in writing.

During a visit to the occupational physician, however, the employee claimed three months of holiday again for the visit to his family in Africa. The occupational physician, however, only allowed him three weeks, until 22 January 2024.

After expiry of these three weeks, the employee did not show up for work, without giving notice. On 24 January 2024, the employer sent the employee a letter requesting the employee to contact his manager on 26 January 2024 at the latest. In this letter, the employee was warned that his salary would be discontinued if he failed to comply with the request. The letter was sent by post, by e-mail and via WhatsApp. Yet, the employee failed to contact his manager.
An acquaintance of the employee's parents, however, informed the employer that the employee was ill.
Then, by letter of 29 January 2024, the employer informed him that the salary payment would be discontinued. At an appointment at the occupational physician’s consultation hour on 5 February 2024 the employee did not show up. When the employer asked the UWV for an expert opinion, the UWV replied that no such expert opinion could be given since the employee had been inaccessible. By letter of 20 February 2024, the employer therefore informed the employee that he had to report to his manager on 12 March 2024 at 9:00 am and that it could have consequences for the employee if he failed to do so.

On 8 March 2024, the employee started his trip back home from Eritrea to Amsterdam, with an intermediate stop in Cairo. A medical certificate showed that the employee had been hospitalised in Cairo for three days due to an epileptic seizure. On 11 March 2024, the employee arrived in the Netherlands. By letter of 13 March 2024, the employer informed the employee that he had been summarily dismissed for unjustified absence, inaccessibility, failure to respond to the employer’s requests, failure to visit the occupational physician and obstruction of his reintegration.
The employer contested the summary dismissal before the Sub-district Court.

The Sub-district Court first assessed whether the employee’s absences from 22 January 2024 to 8 March 2024 had been unlawful. The employee had argued that he had been granted permission for a holiday from 1 January 2024 to 8 March 2024 and that, according to the law, the employer could only come back to it for compelling reasons and if the employee's damage would be compensated. According to the Court, the employee's illness could not constitute a compelling reason, because the employee had already been ill when the employer gave him permission for the holiday. But the Sub-district Court judge did not agree with this argument either, since the employee had agreed to the partial withdrawal of the previously permitted holiday period. Since the employer had also granted the employee two days' reflection time, the employee could be held to that permission.

The employee had also argued that he had not unjustified been absent, because he had become seriously ill during his holiday. The Sub-district Court, however, found it quite coincidental that the employee would have been prevented from returning for precisely that reason during the time he originally wanted to take as a holiday and that it was only possible for him to return with the flight he had originally booked a ticket for.
Furthermore, the employee had remained inaccessible from 22 January 2024 to 12 March 2024. The Sub-district Court assumed that it is well known that accessibility in Eritrea is worse than it is in the Netherlands, but the Sub-district Court did not agree with the employee's argument that there had been no way of contacting the employer all that time. The Sub-district Court pointed out that, apparently, the employee had had a chance to contact his parents' acquaintance in the Netherlands and that there at least would have been opportunities at Eritrea airport to contact the employer, during his stay in Cairo and after arrival in the Netherlands. The fact that the employee was tired after he arrival in the Netherlands was no excuse, according to the Sub-district Court. And the argument that, from medical point of view, the employee would not have been able to maintain contact with his employer or the occupational physician and/or to travel to an area where it would have been be possible to contact them had in no way been substantiated.

The Sub-district Court judge considered the attitude of the employee, who managed to almost completely disappear from the radar screens for two months, to be manifestly incorrect and that he had not shown that he had taken his reintegration obligations seriously.
For these reasons, the Sub-district Court judge decided that the summary dismissal was legally valid.

The legal system concerning the failure to comply with the reintegration obligations by an employee provides that the employer:

• Shall first announce, in writing, that the wage payment will be suspended,
(if the employee fails to show up on the occupational physicians’ consultation hour and if, therefore, it cannot be determined whether the employee is sick or still sick),
or that the wage payment will be discontinued
(if the employee does not comply with other reintegration obligations);

• Next, shall suspend or discontinue the wage payment if the employee still does not show up at the occupational physicians’ consultation hour or still does not comply with his reintegration obligations;

• Can ultimately request the Sub-district Court to terminate the employment contract if, even after the suspension or termination of the wage payment, the employee still fails to show up on the occupational physicians’ consultation hour or still fails to comply with his reintegration obligations.

The legal system does not contain the summary dismissal.

In 2004, the Supreme Court ruled that a failure to comply with the reintegration obligations can nevertheless justify a summary dismissal if it is accompanied by other facts and circumstances.
In the above case, being inaccessible for the employer for a month and a half and failing to respond to his calls provided sufficient additional facts and circumstances for a summary dismissal.