The employee works as an aircraft cleaner. At Schiphol and at the employer’s clients a strict face mask requirement applies in (virtually) all areas of the airport and on board aircraft. The employer has informed all employees of this by letter.
The employee has refused several times to wear a face mask. The employer has held several conversations with him about this and warned him that a refusal could have consequences for his employment. Subsequently, the employee was suspended and salary payments were stopped. The District Court of North Holland is then asked to terminate the employment contract with the employee due to (serious) culpable conduct.
The court rules that the employer was permitted to require its employees to wear a face mask during work, in line with the guidelines applicable at that time from Schiphol Airport and the RIVM.
Now that it is established that the employee repeatedly refused to wear a face mask, thereby being unable to perform his work, that this was repeatedly discussed with him and he was warned of the consequences of his refusal, the employee has acted culpably.
Therefore the employer does not have to reinstate him and the employment contract is terminated due to seriously culpable conduct.
An employee can lose his right to a transition payment only in exceptional cases, in which it is evident that the conduct or omission of the employee leading to the termination of the employment contract must be regarded not merely as culpable, but as seriously culpable.
The court is of the opinion that refusing to wear a face mask in itself is not sufficient for ‘serious‘ culpability. In this case there is repeated refusal. As a result, the employee could not do his work, but by doing so he also impeded the work of his colleagues, causing the employer to have problems, or at least ran risks while performing her work. Employer has still tried to give the employee other work, but the employee did not want that.
As a result, in the opinion of the judge there is serious culpable conduct by the employee and the employee is not entitled to a transition payment. The employment contract is terminated as of the day of the judgment.
Because the employee did not attend the hearing, the judge was unable to determine whether there (personal) circumstances existed that had an influence on the employee’s seriously culpable conduct.
