Employer could not dismiss with retroactive effect

The Supreme Court has ruled that it was not justified to apply a retroactive dismissal to the date on which an employee received notice of an intended dismissal. The Supreme Court held that dismissal could only take effect from the actual dismissal date.

Facts of the case

On 24 March 2021 a municipality employee employed as a care assistant at a residential facility was summoned to an official meeting, to deal with allegations that he had forcefully grabbed a female colleague by the neck and held the grip for approximately 30 seconds. The summons to the official meeting indicated that the municipality intended to initiate a dismissal case based on the incident. The employee was simultaneously sent home and relieved from duty.

The official meeting took place on 25 March 2021, during which the employee stated that he did not accept  the version of events, and his lawyer requested access to the case documents.

On 26 March 2021, the employee received a letter informing him that the municipality intended to dismiss him with effect from that date. The employee was given a deadline to submit any comments on the proposed dismissal on 31 March 2021.

The employee’s lawyer then requested an extension of the response deadline, citing that the municipality had not responded to the previous request for access to documents. The municipality granted the document access request on 29 March 2021 and extended the deadline for comments to 8 April 2021.

The employee submitted his comments on the proposed dismissal on 30 March 2021.

Based on the employee’s comments, the municipality conducted further investigations, including summoning the employee to a meeting on 13 April 2021, to discuss the incident in further detail.

On 15 April 2021, the municipality made the decision to dismiss the employee, stating that they considered the employment to have ended on 26 March 2021, when the employee received the notice of the intended dismissal.

The High Court’s decision

The question before the High Court was whether the dismissal was justified and, if so, when the dismissal should take effect with regards to the financial consequences i.e. payment of salary etc.

The High Court found that the male care assistant’s behavior constituted such a significant breach of the employment relationship that the dismissal was justified.

The High Court also found that the dismissal should take effect from the day the notice of intended dismissal was received meaning that the municipality was only liable to pay the employee until 26 March 2021.

The Supreme Court’s decision

The employee appealed the decision on the basis that the High Court’s decision on the termination date and financial consequences was wrong.

The Supreme Court only had to decide whether the municipality was entitled to let the dismissal take effect from the day the notice of intended dismissal was received, or whether the employee was entitled to salary until the actual dismissal on 15 April 2021.

Despite the municipality’s reservation in the notice to dismiss the employee from the date of the notice, the Supreme Court found that the employment relationship remained in effect until 15 April 2021. The Supreme Court did not find any other circumstances that could justify the male care assistant’s claim to salary ceasing before the dismissal date on 15 April 2021.

The municipality was therefore obliged to pay salary until the actual dismissal date.

Mette Klingsten Law Firm LLP notes

There has been some doubt about whether, in certain situations, it is possible to dismiss with retroactive effect. The Supreme Court’s decision likely does not entirely rule out this possibility, but the ruling confirms that as a general principle, a dismissal cannot take effect from an earlier date than the actual time of dismissal.

The decision can be read in its entirety via this link