Summary Dismissal for Working for a Third Party

An employee was rightfully summarily dismissed for concealing a second employment relationship, for not being open about it when asked for it, and for performing work in this second employment relationship after having reported sick.
Since 1990, an employee of a ministry had worked 28 hours per week in the position of a management assistant. From December 6, 2023 to February 7, 2024, the employee had been fully incapacitated for work and had not performed work. On February 8, 2024, the ministry was informed that the employee was asserted to also work at an institute in Brussels. When, subsequently, a member of the ministry's HR department followed up on the rumour and called the institute, it was the employee who answered the phone there.
The next day, the employee was suspended and invited for a talk.
During that conversation, the employee explained that she had temporarily worked at the institute for eight hours a week as of July 2023, because of her experience with events.
The ministry then apologized for the current situation.
One day later, however, the ministry found out that the employee had not worked at the institute since July 2023 but since 2019, that the job was not a temporary one, but permanent and that the employee did not work 8 hours, but 32 hours per week.
Then, the employee was summarily dismissed for carrying out work for third parties without having reported it to the ministry, for failure to provide openness about that work when requested, and for carrying out the work for third parties during illness.
The employee requested the Sub-district Court annulment of the summary dismissal.
She did not deny the grounds for the dismissal, but considered the summary dismissal a disproportionate measure. She pointed out that her work at the ministry would be discontinued, that she had a long and impeccable record of service and that the summary dismissal would result in being expelled from her debt restructuring program.
The Sub-district Court, however, held the opinion that the employee's conduct was so serious that it justified a summary dismissal, even in the light of the employee's personal circumstances. The fact that her work at the ministry would be discontinued did not imply that she would be dismissed, but only that she would end up in a transitional period to other work at the ministry without loss of wages. According to the Sub-district Court, the long employment relationship was offset by the fact that, for four years, the employee had also worked for another employer in violation of her obligations.
According to the Sub-district Court, there was no reason for the employee to complain about expulsion from the debt restructuring program since she had failed to declare the income from the second employment relationship in the context of the debt restructuring program.
Since the employee had behaved in a seriously culpable way, she was not entitled to the transitional allowance either. According to the Sub-district Court, the exception to this rule, applicable if the decision to refuse the transitional allowance would be unacceptable according to standards of reasonableness and fairness, did not apply here, because the employee had withheld the truth for years and had worked for another employer during illness.

Of course, the employee in the above case may be blamed for not reporting the work for third parties and for lying when the employer asked about it. The employee should at least have reported her second employment relationship to the occupational physician when she reported sick, so as to enable the occupational physician to take it into account in his advice to the employer regarding reintegration. Thus, the occupational physician could have assessed whether the incapacity for work at the ministry, claimed by the employee, meant that the employee was suitable or unsuitable for work at the ministry. After all, the burden of work at the ministry may be different from the burden of work at the institute.
It is notable that, in the decision of the Sub-district Court, no attention whatsoever is paid to the provision in the law which, as of August 1, 2022, prescribes that an objective justification is required for a prohibition on work for third parties. Carrying out work for third parties is, for that reason, in principle permitted, and this is only different if there is an objective justification for prohibiting these ancillary activities.
This may raise the question whether the employee was obliged to report her work for third parties. The Sub-district Court’s decision does not suggest that the employee had a reporting obligation on this point under the employment contract, the CLA or under any other arrangement.
In this case, however, there happened to be an objective justification, because the employee had acted in violation of the Working Hours Act by working 28 hours per week for one employer and 32 hours per week for the other.