An employee’s working hours are often defined within the employment contract – however in practice, employees may arrive at work late. If it becomes a regular occurrence then the employer may use this lack of punctuality as grounds to request termination of the employment contract – however judges will only approve such a request in specific cases.
A case was recently brought before the District Court of Amsterdam in which a tram conductor repeatedly arrived late at work. The business rules and employee handbook of the organisation explicitly stated that employees should arrive on time. The employee handbook further explained that the late arrival of a tram conductor has major consequences: the tram cannot run on time, so passengers have to wait unnecessarily. The employer can even face fines if the tram leaves too late.
Over a period of almost one year, on seven occasions a tram conductor was either late or did not show up for work. The tram conductor indicated that she was in transition and for that reason had trouble sleeping. She did her very best to arrive on time, but due to medical and psychological problems she was unable to do so.
After the second time that the tram conductor was late for work, she was approached both verbally and in writing by the employer. In the period that followed, the employer issued written warnings on several occasions. The employer also interviewed the tram conductor at several occasions and even offered to provide her with a sleep coach. When all of the measures taken by the employer did not help and the services of the sleep coach were rejected, the employer decided to seek termination of the employment contract through the courts.
The court found that the tram conductor did not take her responsibility to arrive on time seriously, even though she was aware of how important this was in her job. On this basis, the court terminated the employment contract. The court added that their finding may have been different if the tram conductor had dealt with the sleep problem more responsibly and/or if it had been established by a doctor that it was a medical problem.
The employee was employed as a tram conductor from 6 May 2017 until the employment contract was terminated on 22 June 2018. Because the duration of employment was shorter than two years, she did not qualify for a transition payment. However, the tram conductor had been previously employed by an employment agency since 14 September 2015, doing the same work that she continued to perform as an employee thereafter. On the basis of the law, the years working through the employment agency counted towards the calculation of the transition allowance. As a result of this, the tram conductor was entitled to a transition allowance. The court stated that the right to such compensation would only lapse if the employee had acted with serious blame. According to the court, this was not the case here.
If you are experiencing conflict at work and you need legal advice on your options, please contact us. We’ll be glad to help you work it out.
District Court of Amsterdam, May 22, 2018, ECLI:NL:RBAMS:2018:3573
This article was previously published in Rendement.
Daniëlle van den Heuvel works in property law and employment law at GMW lawyers. Within property law, Daniëlle is mainly involved in rental disputes and procedures concerning real estate transactions. She represents real estate entrepreneurs, project developers, housing corporations and private individuals. Within her employment law practice, Daniëlle is often called in to draw up or advise about settlement agreements between employers and employees. She represents both parties.