In a judgment of 6 February 2023, the Supreme Court ruled that when assessing a serious cause, the court may not as such disregard the harm suffered by the employer when determining the severity of the shortcoming.

According to the law, a serious cause is a severe shortcoming which makes every professional collaboration between the employer and the employee immediately and definitively impossible. Hence, it is considered as a “serious breach” or a “serious failure”. If contested, it will be up to the court to decide whether or not the alleged shortcomings are sufficient to immediately and definitively end the collaboration between the employer and the employee.

It is established case law that the assessment must take all the concrete circumstances of the case into account. Therefore, a case-by-case assessment is required.

The case that led to the judgment of the Supreme Court involved an employee who was dismissed for serious cause because she failed to file a VAT return in time. She further did not inform her supervisor of the fine, had not taken the necessary steps to contest the fine and had not made any accruals in accordance with the internal rules. The employer stressed that he had to pay EUR 70,000 because of these failings and therefore suffered considerable harm.

The labour court ruled that the employer was able to prove the alleged mistakes. However, the court stated that even if the employer could demonstrate that he had suffered considerable harm, such harm is by definition irrelevant in deciding on the severity of the shortcomings.

The labour court decided that the alleged mistakes did not make the professional collaboration immediately and definitively impossible and therefore did not accept the serious cause.

The Supreme Court did not agree with the decision of the labour court. Although the assessment of a serious cause is a factual assessment, the Supreme Court recalled and clarified a number of principles in its judgment of 6 February 2023.

First, the Supreme Court reiterated that the fact that justifies a dismissal for serious cause is the shortcoming considering all the circumstances of the case. Moreover, the Supreme Court explicitly stated that any damage which the shortcoming has caused to the employer may be taken into account when assessing the severity of the shortcoming. Hence, the damage may play a role in determining whether or not the breach is serious enough to justify a dismissal for serious cause.

The Supreme Court emphasises that for the assessment of a serious cause:

  • the law as such does not require that the employer has suffered any damage due to the serious shortcoming of the employee;
  • on the other hand, nothing prevents the court, when assessing the shortcoming, to take the damage to the employer into account.

Key message

The judgment makes it clear that the harm caused to the employer by an employee’s mistake can play a role in determining the severity of the misconduct.

The judgment does not imply that a misconduct that caused severe damage will always justify a dismissal for serious cause. On the other hand, it does not mean that a dismissal for serious cause would necessarily be unjustified merely because the employer did not suffer any disadvantage due to the misconduct of the employee.

The main question remains whether or not the misconduct is so severe that any professional collaboration has become immediately and definitively impossible, taking into account all the concrete circumstances of the case and thus, if necessary, also (the extent of) the damage. A case-by-case assessment remains necessary.

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