I recently dealt with an immediate dismissal case in which an employee was dismissed immediately by his employer because he had not turned up for work.

The situation was as follows.

The employee was only employed for two months at his employer, a restaurant in Amsterdam. The employee was employed there as a cook on the basis of a one-year employment contract. During that two-month period, the employee almost always had the same schedule, namely from Wednesday to Sunday.

The schedule was announced by his employer a few days before the start of the week via Whatsapp. Occasionally the employee only received his schedule one day before he had to start working.

The employee had bought tickets for a festival that would last from Friday July 19 2019 until Monday July 22 2019 and had asked his manager leave on those days.

However, on Friday July 19 in the evening his phone was stolen from his tent.

The following Tuesday the employee sent an e-mail to his employer stating that his phone had been stolen and that all communications must now be temporarily sent by e-mail.

Half an hour later his employer sends a reaction in which he fires the employee with immediate effect. The employee was schedules to work on Monday and Tuesday and had not shown up, as a result of which his employer had suffered damages due to a shortage of a cook in a busy period. According to employer, the employee had not requested any leave at all for Monday and Tuesday. According to the employer, the employee should have contacted the employer immediately after his telephone was stolen to ascertain the schedule. The fact that the employee had previously worked almost exclusively from Wednesday until Sunday was no guarantee that he would work on those days every week.

The case went to court and the judge ruled that the immediate dismissal could not hold. What was important in the judge’s opinion was that the employee, except on one Monday, was always scheduled from Wednesday to Sunday. Although the employee had not agreed a fixed working day with his employer, this did raise expectations with the employee.

Even more important is that in art. 3.3. of the Horeca Collective Labor Agreement states that the employer will announce the schedule at least 2 weeks in advance.

By sending the schedule only a few days in advance, the employer acted in breach of the Collective Labor Agreement and took a greater risk that the employee would not see the schedule in time than if he had sent the schedule (in accordance with the Collective Labor Agreement) at least two weeks in advance.

Because the dismissal was overturned, the employee was allowed to return to work for the employer and he also received the overdue salary from the three months in which he had not worked to his account.

Conclusion

In the hospitality industry, it is very common not to announce the weekly schedule two weeks in advance, but only a week (and in some cases even one day), contrary to the Horeca Collective Labor Agreement. As an employee you have the right to hear this two weeks in advance, so that you can lead a normal social life. As an employer, you run a greater risk if you send the schedule late and the employee does not show up.

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