What shall we do with the drunken employee? Sack him? That isn’t always allowed. What do you have to take into account when dismissing an employee due to alcohol consumption?
An employee who turns up for work drunk or who regularly does not appear at work due to an addiction to alcohol may not be dismissed like that. In an explanatory note in the legal journal JAR, lawyer Jan Dop explains what employers have to consider in the event of a dismissal because of alcohol consumption. In the following, the most important aspects of this note will be outlined.
In the event of an incident at work involving alcohol consumption, the employer can either choose to (1) request the subdistrict court to terminate the employment contract, for instance, on the basis of imputable acts of the employee, or (2) dismiss the employee with immediate effect. In that case there must be an urgent cause for dismissal. When is that the case? How does the court assess this and what facts and circumstances will be weighed against each other?
In dismissal cases involving alcohol consumption of an employee, the following circumstances are relevant for the assessment of whether or not there is an urgent cause:
Another question that has to be raised is whether it concerns an incident at work involving alcohol consumption or alcoholism. Alcoholism is considered to be an illness, and in the case of illness a prohibition of termination applies. Only if an employee has been ill for two consecutive years this prohibition of termination does not apply any more. In case of repeated relapsing, which occurs a lot, the employer may be confronted with an employee who is ill for more than two years but not consecutively and, as a consequence, cannot be dismissed.
The Employee Insurance Agency requested the subdistrict court to terminate the employment contract of one of its medical advisers addicted to alcohol as it considered the working relationship to be impaired. The subdistrict court dismissed this request as the request was related to his illness and would therefore be subject to prohibition of termination. Though the medical adviser had been ill for more than three years, he had not been unfit for work for two consecutive years so that the prohibition of termination was still effective. Another important factor was that the medical adviser cooperated in the treatment.
A cleaner with a longstanding alcohol problem was not that lucky because her alcoholism led to incidents at work. Therefore, her dismissal with immediate effect was regarded as fair. Even after a warning she had turned up intoxicated at work. Prior to her first appointment at addiction care she had drunk to steady her nerves though she still had to work a few hours before the appointment. In addition, she had failed to follow adequate treatment for her addiction in time for which her employer had given her sufficient opportunity. However, the court ruled that she had not committed an imputable act and therefore she was entitled to transition compensation. This is an option since the introduction of the changes in dismissal law. An employee who is rightly dismissed with immediate effect may be entitled to transition compensation after all.
Would you like to know more about dismissal because of alcohol consumption and what you, as an employer, must take care of? Or do you have any other questions concerning employment law? Please contact Russell Advocaten:
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