Rb. Den Haag - EJ VERZ 21-85504
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| Rb. Den Haag - EJ VERZ 21-85504 | |
|---|---|
 | |
| Court: | Rb. Den Haag (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 5(1)(a) GDPR Article 5(1)(b) GDPR Article 6(1)(a) GDPR Article 6(1)(f) GDPR Article 7 GDPR |
| Decided: | 11.01.2022 |
| Published: | 14.02.2022 |
| Parties: | Holland Car Company B.V. |
| National Case Number/Name: | EJ VERZ 21-85504 |
| European Case Law Identifier: | ECLI:NL:RBDHA:2022:257 |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | Dutch |
| Original Source: | Rechtspraak.nl (in Dutch) |
| Initial Contributor: | Enzo Marquet |
The District Court of Den Haag held that a controller unlawfully processed the personal data of its employee and a client by recording a phone call, and stated that the mere suspicion that an employee is calling clients to set up their own business did not justify secretly recording their calls.
English Summary
Facts
The controller is Holland Car Company, a company which deals in exclusive cars. It fired one of their employees (data subject) for urgent reasons. It had recorded a telephone call of the data subject with a client. In this call, the data subject discussed selling one of their own cars to the client, which their employment contract does not allow. The data subject had no knowledge of their calls being (potentially) recorded, nor did the client.
The data subject felt that this was a breach of their privacy because it had not consented to the recording of their calls. The controller, however, stated that this recording was allowed as it suspected the data subject of breaking its employment contract and using the Company contacts to plan its own business. On top of that, it had informed their employees that calls could possibly be recorded.
The data subject brought the action before court.
Holding
First, the District Court considered that the controller could only record the employees conversations if it had a legitimate interest pursuant to and if this is necessary and proportional. Hence, it appeared the Court referred to Article 6(1)(f) GDPR. Moreover, it must also be clear, for both the employee and the client, that the conversation is recorded (including start and end moment), as well as the reason for the recording, retention period and that the recording is adequately secured.
Moreover, the Court noted that secret recordings can only be done in exceptional circumstances, such as the suspicion of criminal facts or abuses within the organisation. If there are no such circumstances, the controller must obtain consent for these recordings. Hence, it appears the Court referred to Article 6(1)(a) GDPR. The Court stipulated that the fact that employees were informed that calls could be recorded, does not constitute as consent.
After considering the controller's arguments, the Court assessed that the controller's arguments did not justify the exceptional circumstances, and thus needed to obtain the consent of the employee and client. Hence, the Court concluded that the controller unlawfully processed data subject's personal data. As there were no additional circumstances present, the controller could not rely on the recorded call for the immediate termination of the employment contract.
Comment
The District Court did not explicitly refer to provisions of the GDPR. However, based on the Court's reasoning, it must be assumed that the Court referred to the listed provisions.
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English Machine Translation of the Decision
The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.
Court of The Hague Seating place Gouda Case number: 9549952 EJ VERZ 21-85504 Order of the Subdistrict Court dated January 11, 2022 in the case of: [applicant also defendant] , residing at [residence] , the applicant, also the defendant, hereinafter referred to as: [applicant also defendant] , authorized representative: mr. M. Bruins, against the private limited company Holland Car Company B.V., with its registered office in Rotterdam and its principal place of business in Moordrecht, defendant, also applicant, hereinafter referred to as: Holland Car, authorized representative: mr. N. Vis. 1 The course of the procedure The Subdistrict Court has taken cognizance of the following documents, from which documents also show the course of the proceedings: - the application, received at the registry of the court on 19 November 2021; - the statement of defence, also conditionally independent counter-application to dissolve the employment contract pursuant to Section 7:671b of the Dutch Civil Code; - the statement of defense in the conditionally independent counter-application to dissolve the employment contract pursuant to Section 7:671b of the Dutch Civil Code; - the letter with appendix dated November 25, 2021 from mr. Bruins; - the letter with appendices dated 21 December 2021 from mr. Vis; - the notes made by the Registrar during the oral hearing of this case on December 23, 2021. 2 The assessment 2.1 [applicant also defendant] requests by order, provisionally enforceable: A. by way of interim injunction for the duration of the proceedings: 1. Order Holland Car to pay [applicant also defendant] his salary of €3,030 gross per month, plus the holiday allowance and other emoluments from September 24, 2021 until the date on which the employment contract between the parties has been legally terminated and [ to enable the applicant also the defendant] to perform the stipulated work, subject to forfeiture of a penalty of €500 per day that Holland Car fails to comply with this; B. In the main: Primary: 2. annul the instant dismissal; 3. To oblige Holland Car to admit [applicant also defendant] to the agreed work within 24 hours after notification of this decision, until the employment contract between the parties has been legally terminated, subject to forfeiture of a penalty of € 500 per day that it fails to do so; 4. Order Holland Car to pay the salary of [applicant also defendant] of €3,030 gross per month from September 24, 2021 until the moment that the employment contract between the parties has been legally terminated, plus the statutory increase pursuant to Article 7 :625 BW; alternatively: 5. order Holland Car to pay the fair compensation to [applicant also defendant], as stated under point 8.4 of the application; 6. Order Holland Car to pay [applicant also defendant] compensation for irregular termination as stated under point 8.5 of the application; 7. Order Holland Car to pay [applicant also defendant] the transition payment as stated under point 8.6 of the application; More subsidiary: 8. in the event that the employment contract is terminated by summary dismissal, order Holland Car to pay the transition payment as stated under point 9 of the petition; Primary, subsidiary and more subsidiary: 10. Order Holland Car to pay [applicant also defendant] the statutory interest from the time when the aforementioned amounts become due and payable until the date of full payment; ordering Holland Car to pay the costs of the proceedings. 2.2 [applicant also defendant] bases his requests on the following. He was born on [date of birth] 1994 and joined Holland Car on 1 October 2019, initially for a definite period and from 1 January 2021 for an indefinite period of time in the position of Sales Advisor, at a salary of € 3,030 gross per month. , plus 8% holiday allowance and an average commission ad € 976.14 gross per month. The Collective Labor Agreement for Motor Vehicles and Bicycles Company applies to this agreement. Holland Car's activities include the import of passenger cars and light commercial vehicles, repair and the import and export of automobiles. It employs 9 people. From the beginning of September 2021, the relationship between [applicant also defendant] and Holland Car has cooled down. This was related to the private circumstances of [applicant also defendant], with which Holland Car was known. This resulted in two official warnings in a short period of time for not offering a car from a Holland Car customer to Holland Car itself, for damaging Holland Car's reputation and for being late several times. Holland Car subsequently fired him on September 24, 2021, because on September 16, 2021 he allegedly offered his own Audi RS6/cars outside of Holland Car from his own trade to a customer of Holland Car, Mr [customer]. This would appear from the telephone conversation recorded by Holland Car that this customer had with [applicant also defendant] on 16 September 2021. Holland Car did not make the recording of this conversation available to [applicant also defendant] until 19 October 2021. There was no question of proper hearing and rebuttal. In her decision to immediately dismiss [applicant also defendant], she did not take into account the personal circumstances in which he found himself at the time. [Applicant also defendant] was not aware of the fact that Holland Car recorded telephone conversations conducted by [applicant also defendant]. He was not informed about this in advance and has not given permission for this. By making the recordings, Holland Car acted seriously culpably and grossly violated the privacy rights of [applicant also defendant]. The telephone call made on September 16, 2021 lasted 12 minutes and 22 seconds. For 72 seconds there was talk of an RS6. [customer] then said: I almost bought such an RS6 from someone. But it was gray. I doubted that. I only want black cars to which [applicant also defendant] said back: I have a uhm. I have a um. You should know that. Because I can tell you that. In the background I am doing this for myself with an investor. I myself have, bought that myself, a black one, but that is a seventeen. And I don't know, that's an older model. But that is such a performance, a black with black-brown interior. I don't know if you like that. Is that something for you? It cannot be inferred from this that [applicant also defendant] offered the car to [customer]. It only appears from this that [applicant also defendant] has asked him whether the car mentioned by him is the type of car that interests him. A sales agreement has not been concluded. Holland Car has suffered no damage. [applicant also defendant] did not compete with Holland Car. The employment contract between the parties does not contain a non-compete clause, nor a prohibition on performing ancillary activities. Insofar as [applicant also defendant] had wanted to sell the car to [customer], there is no question of unlawful competition. This only occurs if the former employee systematically and structurally approaches clients and relations of the former employer. It can be concluded that Holland Car had no urgent reason for the instant dismissal. The dismissal is disproportionate in the circumstances. The consequences of the dismissal are serious. [applicant also defendant] is dependent on his wages for his livelihood. He therefore has an interest in the requested provisional relief. Since the dismissal has not been validly given, it must be annulled. [applicant also defendant] acquiesces alternatively in the termination and is entitled to the fair compensation, the transition compensation and the compensation for irregular dismissal. The fair compensation can be set at an amount of € 27,296.70 (6 times the salary, plus all emoluments). The transition payment in this case is € 2,950.38 gross and the compensation for irregular dismissal is € 5,307.69 gross. Insofar as the instant dismissal would stand, [applicant also defendant] is entitled to the transition payment as of 24 September 2021 of €2,807.46 gross. 2.3 Holland Car requests that [applicant also defendant] be declared inadmissible in his requests, or at least to reject his requests, with an order against him, by order, provisionally enforceable, to pay the costs of the proceedings, plus the statutory interest thereon from the 14th day after the day on which this decision is made until the day of full payment. To that end, she submits the following. It imports, sells, repairs and maintains exclusive cars. [applicant also defendant] was employed by her from 1 October 2019 in the position of Sales Advisor and most recently earned a salary of € 3,030 gross per month, excluding 8% holiday allowance. The Collective Labor Agreement for Motor Vehicles and Two-wheeler Companies applies to this employment contract. [applicant also defendant] had a lot of (telephone) contact with Holland Car's customers in the performance of his position. On September 7, 2021, Holland Car spoke to [applicant also defendant] because he repeatedly showed up late for work without stating reasons and because he had said to a customer of Holland Car contrary to reality, without any reason, that the car to be delivered to him could not be delivered on time. Furthermore, without consulting the management of Holland Car, he twice sold a car to competitors of Holland Car, while he was expressly prohibited from doing so. Holland Car has given him an official warning in this regard. During the conversation held on 7 September 2021, [applicant also defendant] informed Holland Car that he was considering working elsewhere. On September 9, 2021, [applicant also defendant] informed the director of Holland Car around midnight that he would not appear at work on September 10, 2021 due to private circumstances. The director of Holland Car rightly did not accept this and informed him the next morning that [applicant also defendant] had to arrive at work on time. [applicant also defendant] had an appointment with a customer on September 10, 2021 at 09:00. He missed that appointment because he didn't show up for work until about 11 a.m. that day. This was discussed with [applicant also defendant] on 14 September 2021. He has received a second official warning in connection with this. It appears from the facts that led to the official warnings that [applicant also defendant] did not take his duties seriously, was not prepared to take responsibility for his duties and was also not prepared to commit himself to Holland Car. In September 2021, Holland Car noticed that [applicant also defendant] increasingly conducted business telephone conversations with its customers outside the office. It was as if he didn't want colleagues to listen in on his conversations. Holland Car instructed him to conduct business conversations at the office. [Applicant also Defendant] nevertheless failed to do so. Because [applicant also defendant] had indicated that he wished to start working independently, which, according to his registration in the Trade Register, he has now done so, the suspicion arose that he made use of Holland Car's customer base during working hours to compete with it. On 16 September 2021, [applicant also defendant] spoke by telephone with [customer], a customer of Holland Car, during working hours, in the performance of his position. During this conversation, he offered him an Audi RS6 through his company [company name]. This telephone conversation was recorded by Holland Car and listened to on September 23, 2021, at the end of the day. Holland Car subsequently dismissed [applicant also defendant] on 24 September 2021, because he had offered his own Audi RS6/cars outside Holland Car from his own trade to customers of Holland Car. This was confirmed to him by email the same day. Now that it is clear from the telephone conversation held on 16 September 2021 that [applicant also defendant] wanted to sell his car to [customer], contrary to the provisions of Article 40 of the applicable collective labor agreement, there is an urgent reason. In the given circumstances, [applicant also defendant] cannot claim the fair compensation and the transition compensation. Article 8 of the employment contract that the parties have concluded includes a commission scheme. Under that scheme, [applicant also defendant] is entitled to commission if he sells at least 4 cars per month with a minimum sales value of € 4,500 net per car. Up to and including July 2021, [applicant also defendant] was paid a cumulative amount of €6,833 gross in commission. In August and September 2021, [applicant also defendant] did not meet the commission conditions, so that no commission was paid to him in respect of those months. Insofar as the compensation due to irregular termination would arise, this can be set at € 3,867.38 gross. Insofar as [applicant also defendant] is entitled to the transition payment, this amounts to € 2,799.74 gross. The fair compensation requested by [applicant also defendant] cannot be granted because Holland Car did not act seriously culpably. The statement of [applicant also defendant] that Holland Car violated his privacy by recording telephone conversations he conducted is not correct. All Holland Car employees are aware that conversations with customers can be recorded. Holland Car also has a legitimate interest in doing so, because it must be able to monitor the work and productivity of its employees. In the given circumstances, the granting of the requested provisional facility is also not at issue. 2.4 In the event that the instant dismissal should be annulled, Holland Car requests the dissolution of the employment contract between the parties, with the judgment of [applicant also defendant], by order, provisionally enforceable, to pay the costs of the proceedings, to be increased by the statutory interest on this from the 14th day after the day on which this decision is made until the day of full payment. 2.5 Holland Car bases its request on what it has argued in response to the requests submitted by [applicant also defendant] and also the following. It follows from the facts that [applicant also defendant] acted culpably (Article 7:669 paragraph 3 sub e of the Dutch Civil Code), or at least that the employment relationship between the parties has become disrupted (Article 7:669 paragraph 3 sub g of the Dutch Civil Code). Holland Car had to give him an official warning twice. He started his own business in violation of the Collective Labor Agreement and started to compete with it during working hours, using the facilities made available by Holland Car. The confidence that Holland Car had in [applicant also defendant] was seriously damaged. Now that [applicant also defendant] has set up his own company, it is not clear how he can continue to work for Holland Car in a reasonable proportion. Holland Car cannot be expected to share all kinds of business-sensitive information with him again. Reassignment of [applicant also defendant] cannot be considered for that reason alone. Since [applicant also defendant] has acted seriously culpably, he cannot claim any compensation. 2.6 [applicant also defendant] request, by decision, provisionally enforceable to reject Holland Car's request. Insofar as the request can be granted, Holland Car must pay him the transition payment and a fair compensation of € 27,296.70 gross. In both cases, Holland Car must be ordered to pay the costs of the proceedings. [applicant also defendant] bases this on the facts and circumstances on which he based his requests. What he furthermore has argued will, insofar as necessary, be discussed below. 2.7 The district court considers the following. 2.8 On the basis of what the parties have argued and in the exhibits in question, the following is established in this case. [applicant also defendant] , born on [date of birth] 1994, joined Holland Car on 1 October 2019, initially for a definite period and from 1 January 2021 for an indefinite period, in the position of Sales Advisor, for a salary of €3,030 = gross per month, plus 8% holiday allowance and the commission referred to in Article 8 of the employment contract. The Collective Labor Agreement for Motor Vehicles and Bicycles Company applies to this agreement. Article 40 of the Collective Labor Agreement provides (among other things): The employee may only start his own business with written permission from his employer (…) if it concerns activities in the subsector(s) that are competitive for the current employer. Holland Car imports, sells, repairs and maintains exclusive cars. It employs 9 people. In or around September 2021, [applicant also defendant] had to contend with problems in the relationship with his partner. On September 7, 2021, following the conversation that Holland Car had with him on that date, he received an official warning because of: - Confirm a trade offer to two other car companies (competitors) without consultation with the management, without Holland Car Company being given the opportunity to buy this car; - Telling a "story" to the customer that a car can only be delivered later, and not reporting this to your colleagues. As a result, your colleague speaks to the customer and tells the real story. This does not benefit the name of Holland Car Company; - Arriving late several times without giving a reason. During the conversation on 7 September 2021, [applicant also defendant] told Holland Car that he was toying with the idea of starting work elsewhere. Subsequently, [applicant also defendant] received a second official warning for unauthorized absence. On 16 September 2021, [applicant also defendant] spoke by telephone with a customer of Holland Car, [customer] during working hours. This conversation, which lasted 12 minutes and 22 seconds, was recorded by Holland Car. During this conversation, an RS6 was discussed for 72 seconds. [customer] said: I almost bought an RS6 like that from someone. But it was gray. I doubted that. I only want black cars, to which [applicant also defendant] replied: I have a uhm. I have a um. You should know that. Because I can tell you that. In the background I am doing this for myself with an investor. I myself have, bought that myself, a black one, but that is a seventeen. And I don't know, that's an older model. But that is such a performance, a black with black-brown interior. I don't know if you like that. Is that something for you? On the basis of this conversation, no sale was concluded between [applicant also defendant] and [customer]. Holland Car listened to this conversation on September 23, 2021. On September 24, 2021, she wrote him the following: I have just informed you by telephone that you have been fired on the spot. The reason is that you offer your own AudiRs6/cars outside of HCC from your own trade to HCC customers. Please hand in your tesla with card/telephone/tooth card and key this Monday at the end of the afternoon or this Tuesday before 9.00 in the morning. [applicant also defendant] has registered with the Chamber of Commerce as a sole proprietorship with effect from 22 November 2021 under the name [company name], whose activities are the trade in and repair of passenger cars and light commercial vehicles (no import of new ones). 2.9 [applicant also defendant] argues that Holland Car did not inform him in advance about the fact that it made audio recordings of the telephone conversations he had, and that he did not grant permission for this, so that now that they have these conversations, including the telephone conversation of September 16, 2021, acted seriously culpably towards him and grossly violated his privacy rights. In assessing this statement, the following is assumed. An employer only has the right to make recordings of telephone conversations made by his employees, insofar as he meets all the conditions set by the GDPR. According to those conditions, the basic principle is that making sound recordings must be necessary and proportional. A further condition is that the employer must have a legitimate interest in making the sound recordings, which interest cannot be safeguarded in a less drastic way. It is also a condition that the employee – and the customer – whose telephone conversations are recorded, agree in advance with the recording of the audio and that it must be clear to the employee at what time the recording will start and end. It is also required that the employer informs his employees – and the customer – in advance about making sound recordings and the intended purpose, that he adequately protects the sound recordings made and that he may not keep the recordings for longer than is necessary for the purpose for which they were made. . Secretly making sound recordings is only permitted in exceptional situations (such as, for example, the employee's suspicion of criminal offenses or abuses within the company). 2.10 On 7 September 2021, Holland Car was told by [applicant also defendant] that he was considering working elsewhere. [applicant also defendant] has not disputed that during the month of September 2021 he regularly had telephone conversations outside Holland Car's office space, so that this can be assumed as established on that ground. Based on these facts, Holland Car apparently suspected that [applicant also defendant] was engaged in (starting up) competing activities (car sales for its own account) during working hours. That suspicion is so sparsely substantiated with the facts just mentioned that it did not justify making secret audio recordings of the telephone conversations conducted by [applicant also defendant], including the conversation of 16 September 2021, not even if this involves the fact that he December 7, 2021, well after his resignation, has registered as a car salesman with the Chamber of Commerce with effect from November 22, 2021. The suspicion that arose in September 2021 should at most have led Holland Car to the decision to ask [applicant also defendant] what it said about its possibly competing activities. It is therefore concluded that Holland Car was not allowed to secretly record the telephone conversation of 16 September 2021. 2.11 This means that Holland Car was only allowed to record the conversation of 16 September 2021 if it at least met the requirement that it had a legitimate interest and [applicant also defendant] - and [customer] - have agreed to this. It is not clear what interest Holland Car had in making the recording. It argues on the one hand that it made the recording with a view to improving business services and, on the other hand, it argues that it needs the recordings to monitor the work and productivity of its employees. In so far as it alleges that it made the recording with a view to improving the service, it has not sufficiently substantiated this allegation, because it has not been shown that it arranges the sound recordings it has made with its employees/sellers with a view to the improvement of their services. Furthermore, insofar as Holland Car has made the sound recordings with a view to improving the service, it may only use those recordings for that purpose, which it clearly does not do in the context of this case. It is not necessary to make sound recordings to monitor the work and productivity of its employees, now that this can also be done in other ways (on the basis of its administration it will be easy to determine how many cars its sellers sell per month ). It has thus not been established that Holland Car had a legitimate interest in making the audio recording of the telephone conversation of 16 September 2021. It has also not been established that the audio recording of this conversation had the consent of [applicant also defendant] (and [customer]). From the written statements of two of its employees submitted by Holland Car as exhibit 8, it can at most be deduced that these employees were aware of the fact that our telephone conversations have been recorded since March 2021, or at least that the possibilities of recording telephone conversations at HCC/Mr Import, but not that [applicant also defendant] has consented to this. With the mere fact that the employees have been informed about (the possibility of) making sound recordings, the GDPR is not complied with when it comes to whether they agree to this. Holland Car's offer to prove its assertion, contested by Van de Bos, that [applicant also defendant] knew that telephone conversations were being recorded, is therefore ignored. 2.11 It follows from what has just been considered that Holland Car acted in violation of the GDPR and thereby unlawfully violated the privacy of [applicant also defendant]. The evidence that Holland Car claims to derive from the sound recording dated September 16, 2021 has therefore been obtained illegally. When answering the question whether this evidence should be taken into account in the assessment of this case, it is paramount that illegally obtained evidence does not automatically mean that this evidence must be excluded. In principle, the general social interest that the truth comes to light in court, as well as the interest that the parties have in being able to demonstrate their arguments in court, outweigh the interest in excluding the illegally obtained evidence. It is only in the case of additional circumstances that setting aside that evidence is justified (HR 18 April 2014, ECLI:NL:HR:2014:942). 2.12 An additional circumstance in this regard is that Holland Car based its suspicion that [applicant also defendant] was engaged in (starting up) competing activities, on facts which, as has just been considered, at most justify the suspicion that there could possibly be of (starting up) competitive activities. An additional circumstance is furthermore that it has not been shown that [applicant also defendant], if Holland Car had addressed him about this, would have been reluctant to discuss this with her and to lay his cards on the table, so that an investigation based on secretly recorded telephone conversations ( for the time being) was not addressed. An additional circumstance is that although it cannot be ruled out that [applicant also defendant] had the intention from in or about September 2021 to set up a competing company in his own name, it has not been shown to date that he (apart from has actually implemented his registration with the Chamber of Commerce). It is important in this regard that [applicant also defendant] explicitly stated during the oral hearing of this case that he had not yet been active in the car trade up to that point, and that the director of Holland Car stated during that hearing that he was not aware of it. to be that this is different. These circumstances lead to the conclusion that the recording of the telephone conversation of 16 September 2021 cannot be taken into account in the assessment of this case. 2.12 It follows from this that it has not been established that Holland Car was right to immediately dismiss [applicant also defendant] on 24 September 2021. Whether the given dismissal, if the urgent reason stated by Holland Car had been established, would have been justified, or whether in the given circumstances – including the circumstance that it has not been shown (sufficiently) that Holland Car as a result of the telephone call of 16 September 2021 has suffered material detriment – an official warning would have been more appropriate can thus remain in the middle. 2.13 On the basis of the foregoing, the requests referred to above in legal considerations 2.1.2 and 2.1.4 will be granted in a manner to be stated below. The request referred to in legal consideration 2.1.3 will not be granted in view of the considerations below. The requested provisional relief is not granted, now that a decision is immediately made in the main proceedings. 2.14 The following is being considered about Holland Car's request. 2.15 It is established that [applicant also defendant] has (now) made preparations to start as a car dealer. He stated during the oral hearing that this has not yet been implemented (only) because he wants to start as a car dealer on the basis of the unemployment benefit. It is therefore assumed that [applicant also defendant] has the firm intention to become active as a car dealer in the foreseeable future, and therefore wishes to become a competitor of Holland Car. It is likely that this will lead to tensions in the relationship between the parties, because it is unlikely that Holland Car, pending the employment contract, will grant him permission to do so (Article 40 of the Collective Labor Agreement). It is also plausible that the relationships between the parties will be disrupted because, in the given circumstances, Holland Car will no longer be prepared to share business-sensitive information with its future competitor, while [applicant also defendant] uses this information for the performance of his position with it, does need. It has therefore been decided that the employment contract between the parties must be dissolved (Article 7:669 paragraph 3 sub g of the Dutch Civil Code), since [applicant also defendant] cannot be reassigned to her in the given circumstances and there has been no evidence of any prohibition of termination. 2.16 [Applicant and Defendant] cannot be seriously blamed for the origin of the disrupted employment relationship. For this reason, it is determined that the employment contract will end on 1 March 2022 (Article 7:671b paragraph 9 sub a of the Dutch Civil Code). Holland Car cannot be seriously blamed for the origin of the disturbed relationship. There is therefore no room for the award of fair compensation (Article 7:671 paragraph 9 sub c BW). Since the termination of the employment contract between the parties is not the result of seriously culpable acts or omissions on the part of [applicant also defendant], he can claim the transition payment (Article 7:673 of the Dutch Civil Code). The calculation of the transition payment is based on the agreed salary of € 3,030 gross per month, plus the holiday allowance of 8% and the commission. In the period up to and including the month in which Holland Car wrongly dismissed [applicant also defendant] with immediate effect, [applicant also defendant] has, according to Holland Car, stated without being contradicted, for a total amount of € 6,833 gross. received commissions, so that according to her, an average commission of €759.22 gross per month can be assumed. During the oral hearing of this case, the applicant also acknowledged this. The gross salary per month can thus be set at an amount of € 4,031.62. Based on an employment contract of two years and five months), the transition payment can thus be set at an amount of € 3,247.70 gross, plus the statutory interest from 1 April 2022 (Article 7:686a paragraph 1 of the Dutch Civil Code) until the day of complete satisfaction. 2.17 Since Holland Car has been unsuccessful in the proceedings brought against it by [applicant also defendant], it has been ordered to pay the costs of those proceedings. In view of the outcome of the proceedings instituted by Holland Car against [applicant also defendant], the costs of the proceedings will be compensated in those proceedings, in the sense that each party will bear its own costs. 3 Decision The subdistrict court judge: In the proceedings of [applicant also defendant] against Holland Car: 1. annul the instant dismissal; 2. orders Holland Car to pay the salary of [applicant also defendant] of €3,030 gross per month from September 24, 2021 until the moment that the employment contract between the parties has been legally terminated, plus the statutory increase pursuant to Article 7: 625 Dutch Civil Code and the statutory interest on the salary and the statutory increase from the day of absenteeism until the day of full payment; 3. orders Holland Car to pay the costs of the proceedings, which costs have to date been set at an amount of €978, including an amount of €747 for the attorney's salary; 4. declares this decision provisionally enforceable; 5. rejects what has been requested more or differently; In the proceedings of Holland Car against [applicant also defendant]: 6. dissolves the employment contract between the parties and determines that it ends on 1 March 2022; 7. orders Holland Car to pay Van de Bos the transition payment of € 3,247.70 gross, plus the statutory interest from 1 April 2022 until the date of full payment 8 compensates the litigation costs; 9. declares this decision provisionally enforceable; 10. rejects what has been requested more or otherwise. This decision was given by subdistrict court judge mr. M. Nijenhuis and pronounced in open court on January 11, 2022.
