Hof 's-Hertogenbosch - 200.274.447 01

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Hof 's-Hertogenbosch - 200.274.447_01
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Court: Hof 's-Hertogenbosch (Netherlands)
Jurisdiction: Netherlands
Relevant Law: Article 5 GDPR
Decided: 10.09.2020
Published: 14.09.2020
Parties:
National Case Number/Name: 200.274.447_01
European Case Law Identifier: ECLI:NL:GHSHE:2020:2810
Appeal from:
Appeal to: Unknown
Original Language(s): Dutch
Original Source: rechtspraak (in Dutch)
Initial Contributor: n/a

The Appeal Court upheld the decision of the first judge and refused to consider that the dismissal of the employee was illegal on the grounds that his privacy was violated by his employer.

English Summary[edit | edit source]

Facts[edit | edit source]

The employer used the location system of the company to match the location data with information contained in the time-sheets of the employee. Since this information showed that the encoded times did not match, the employee was dismissed.

Dispute[edit | edit source]

Holding[edit | edit source]

The Court refused to grant compensation to the employer or to reinstate the employer for the violation of his data protection rights under the GDPR.

Comment[edit | edit source]

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Further Resources[edit | edit source]

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English Machine Translation of the Decision[edit | edit source]

The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.

ECLI:NL:GHSHE:2020:2810
Authority
Court of Appeal 's-Hertogenbosch
Date of pronunciation
10-09-2020
Date of publication
14-09-2020
Case number
200.274.447_01
Areas of law
Labour law
Special features
Appeals
Content indication
Labor law; WWZ. Request for dissolution of the employment contract by the employer on the grounds of culpable acts of the employee also allowable on appeal. No reinstatement of the employment contract, or the granting of fair compensation. No change to the date of dissolution. Requests by the employee for equitable compensation for serious culpable acts or omissions by the employer and compensation for violation of his privacy will be rejected. Serious culpable act or omission of the employee (in connection with transition compensation)? Employee admitted to (counter)evidence.

Locations
Rechtspraak.nl
AR-Updates.nl 2020-1120
Enriched pronunciation
Pronunciation
GERECHTSHOF 's-HERTOGENBOSCH

Commercial law team

Ruling : 10 September 2020

Case number : 200,274,447/01

Case number first instance : 7944190 / EJ VERZ 19-311

in the appeal case of:

[the employee] ,

residing at [residence] ,

appellant,

Hereinafter referred to as [the employee] ,

Attorney at law: Mr. J. van Overdam in Utrecht,

by

Trigion Brand- en Beveiligingstechniek B.V.,

established in Woerden, the Netherlands,

defendant,

hereafter referred to as Trigion,

Attorney at law: Mr. S.M.J. Harmsen in Schiedam.

1The lawsuit in first instance
The court refers to the order of the cantonal judge in the District Court of East Brabant, seat 's-Hertogenbosch, of November 29, 2019.

2The appeal proceedings
2.1.
The course of the procedure shows:

-
the appeal with the case file of the first instance (numbered as productions 1 through 7) and productions 8 through 28, received at the Registry on February 21, 2020;

-
a V6 form from Mr. Van Overdam with the minutes of the oral hearing at first instance on 16 September 2019 (production 29), received at the Registry on 31 March 2020;

-
the defence with productions 18 through 30, received at the Registry on May 29, 2020;

-
a V6 form from Mr. Van Overdam with productions 30 up to and including 36, received at the Registry on July 6, 2020;

-
a V6 form from Mr. Van Overdam with productions 37 up to and including 39, received at the Registry on July 6, 2020;

- the e-mail from Mr Harmsen dated 15 July 2020 with the clarification provided at the request of the court with regard to the weekly totals referred to in point 15 of the

application at first instance in relation to the hours mentioned in the application at first instance from Monday to Friday in production 8 at which

e-mail mr. Harmsen (again) has submitted the defence on appeal with productions;

- the oral hearing held on 16 July 2020, at which he was heard:

- [the employee] , assisted by mr. Van Overdam;

- on behalf of Trigion Mr. [former manager] , former manager of [the employee] , assisted by Mr. Harmsen. Also present on the part of Trigion was Mrs. [juidisch advisor] , legal advisor.

- The pleading notes submitted at the hearing by both lawyers.

2.2.
Subsequently, the court of appeal set a date for order. The Court does justice to the documents mentioned above.

3The assessment
3.1.
No grievances are directed against the facts as established by the Subdistrict Court in the contested order under 2, nor is it apparent from what Trigion has put forward that it does not agree with that statement of facts. Therefore, the Court of Appeal will base itself on the same facts, supplemented by any other facts that have also been established between the parties in this appeal. It concerns the following in this appeal.

3.1.1.
[the employee] , born on [date of birth] 1964, was employed on 1 September 1986

joined Trigion's legal predecessor. [the employee] was last employed in the

position of service technician, with a salary of € 3,694.40 gross per four weeks, excluding

emoluments, at a working time of 40 hours per week. On the employment contract is the

cao Metaal en Techniek (Technical Installation Company) applies.

3.1.2.
The service technician is responsible for maintaining, fault-free

and adapting sprinkler systems in accordance with the applicable standards and regulations.

According to the job description, the activities of the service technician include:

“(…)

Reporting (including advice) of work carried out / task related administration (work orders).

Reporting of particularities found on projects

(…)

Issuing improvement recommendations

(…)

Keeps track of changes on drawings/schematics for revision drawings".

3.1.3.
The service technician will draw up a weekly timesheet of the work performed. Parties also refer to this as a 'weekly list'.

3.1.4.
In a letter dated 12 December 2013 about the use of Pidion (a handheld computer on which the service technicians fill in the work orders), Mr. [service coordinator] , service coordinator at Trigion, wrote the following to the employees, including [the employee] :

“(…)

2. The second point are the hours on the work order. You have to plus or minus the hours so that they are equal to the hours you write down on your weekly list. This will put the correct number of hours on the work order.

Deviations are difficult for us to sell to the customer. Especially with malfunction and control reports that have to be settled.

We trust that you will deal with the Pidion in this way so that we can ensure that the correct costs can be passed on to the client".

3.1.5.
As of January 2018, Trigion will be working with the so-called 'Nemo app'. The operation of this app means that a service technician presses 'start' when he starts his work at the customer's premises and upon completion of the work, the customer (digitally) signs it. The app then registers the time worked (at the customer's site).

3.1.6.
On 1 July 2019, Trigion suspended [the employee] while retaining

salary. The reason for this is a by Trigion observed difference between data

coming from the black box in the company bus with which [the employee] was driving and the

completed timesheets.

Procedure in the first instance

3.2.
In the first instance, Trigion requested that the employment contract between the parties be terminated with effect from the earliest possible date, taking into account the provisions of Article 7:671b (8) opening words and under (b) of the Dutch Civil Code (old), on the basis of Article 7:671b (1) opening words and under (a) in connection with Article 7:669 (3) opening words and under (e) of the Dutch Civil Code, culpable acts or omissions, without granting the transition fee and/or fair compensation, costs at law.

3.3.
In the first instance, [the employee] put forward a substantiated defense seeking the rejection of Trigion's requests.

3.3.1.
In the event that the Subdistrict Court were to dissolve the employment contract, [the employee] claimed at first instance the transition allowance and €50,000 in fair compensation, and requested [the employee] to take into account the notice period applicable to him when determining the end date of the employment contract, without deducting the period between receipt of the petition and the date of the termination decision. Furthermore, [the employee] requested in the first instance that Trigion be ordered to pay the statutory interest on the transition fee and the equitable remuneration and order Trigion to pay the costs of the proceedings.

3.4.
By the contested decision, the Subdistrict Court annulled the employment contract between the parties with effect from 1 January 2020 on the grounds of (serious) culpable acts and/or omissions on the part of [the employee] and rejected the transition compensation and fair compensation requested by [the employee]. The Subdistrict Court compensated the litigation costs between the parties.

The appeal

3.5.
On appeal, [the employee] applied for the contested decision to be set aside and for it to be upheld:

1. the employment contract between [the employee] and Trigion was wrongfully terminated due to serious culpable acts or omissions on the part of [the employee] as referred to in Section 7:669(1) and (3) opening words and under e in conjunction with Section 7:673(7) opening words and under c BW;

2. Trigion has acted in violation of the AVG by using the data from the trip registration system (the black box data) to check [the employee's] timesheets and to attach to this that these data should be disregarded as unlawful evidence in this procedure;

3. Trigion is liable to pay damages, or at least compensation to [the employee] for infringement of the right to respect for privacy.

3.5.1.
On behalf of [the employee], Mr. Van Overdam, who was asked to do so by the Court of Appeal, has submitted a complaint to the Court of Appeal on behalf of [the employee].

hearing on appeal explained that the requested statements for law alone are

intended as a prelude to the primary and subsidiary requests of [the employee], to be referred to below

on appeal. The court of appeal finds that in the requested statements for right

so it's not about independent requests.

3.6.
[the employee] requested the court in the appeal:

Primarily:

1. reinstate the employment contract pursuant to article 7:683 paragraph 3 in conjunction with article 3:300 of the Civil Code, or order Trigion to reinstate the employment contract, on the basis of the same employment conditions as before the dissolution of the employment contract;

2. the recovery as referred to under 1. to be determined on 1 January 2020, or at least on a date to be determined by the court of competent jurisdiction;

3. Order Trigion to pay the salary, including emoluments as of the date referred to under 2., increased by the statutory increase and the statutory interest;

4. Order Trigion to re-employ [the employee] from the earliest possible date, on pain of a penalty;

5. if the date referred to under 2. is six months or longer after 1 January 2020, make the provision that both employment contracts must be taken together for all employment contracts for which the six-month breakthrough period has adverse consequences for the employee ([the employee]);

6. if the court reinstates the employment contract at a later date than 1 January 2020, order Trigion to pay to [the employee] compensation/amount, pursuant to Article 7:683(4) in conjunction with Article 7:682(6) of the Dutch Civil Code, equal to the gross salary of €3,694.40 per four weeks and emoluments, counting from 1 January 2020 up to and including the date on which the employment contract is reinstated, to be increased by the statutory increase and the statutory interest;

7. to make a provision pursuant to Section 7:683(4) in conjunction with Section 7:682(6) of the Dutch Civil Code for un accrued pension over the period that the employment contract with [the employee] was terminated;

8. To order Trigion to pay damages for breach of the right to respect for privacy of € 5,000.

In the alternative:

In case the court does not decide to reinstate the employment contract or [the employee] decides to waive his primary requests, [the employee] has requested the court to order Trigion to pay to [the employee] of:

1. the transition fee of € 75,313 gross, plus statutory interest;

2. equitable compensation of € 50,000, to be increased with the statutory interest;

3. a fixed compensation of € 12,039.66 gross, to be increased by the statutory interest, insofar as required by repairing and terminating the employment contract as of 1 January 2020 or as of 1 April 2020;

4. compensation of €5,000 for infringement of the right to respect for privacy.

In all cases, [the employee] has requested that Trigion be ordered to pay the costs of the proceedings in both instances, plus statutory interest.

3.6.1.
Requested by the court of appeal, Mr. Van Overdam, on behalf of [the employee] ter

Appeal hearing explained that the subsidiary application under 3. may also be read as an application to change the date of dissolution in the contested decision to a later date.

3.7.
Trigion lodged an appeal in which it requested that the contested decision be upheld and that [the employee] be ordered to pay the costs of both instances. In the event that one of [the employee's] primary or subsidiary requests is wholly or partially attributable, Trigion has requested that as much moderation as possible take place.

3.8.
3.8. [the employee] has put forward seven grievances on appeal. The grievances concern considerations and the decision of the Subdistrict Court with regard to the termination of the employment contract and the rejection of the requested transition allowance and fair compensation. They lend themselves to joint proceedings.

3.9.
The court of appeal takes as a starting point that in cases arising from the Work and Security Act (Wwz), such as this case, the law of evidence in principle applies, unless the nature of the case dictates otherwise. In this case, the nature of the case does not preclude the application of the law of evidence.

3.10.
Pursuant to Section 7:671b in conjunction with Section 7:669 subsection 3 opening words and under e of the Dutch Civil Code, the employment contract may be terminated at the request of the employer in the event of culpable acts or omissions by the employee in such a way that the employer cannot reasonably be required to allow the employment contract to continue.

Pursuant to Section 7:673 (7) of the Dutch Civil Code, the employer (if the conditions for awarding the contract are met) owes a transition fee if the employment contract ends. This is not the case if the termination of the employment contract is the result of serious culpable acts or omissions by the employee (sub c of that provision).

3.11.
Pursuant to the main rule of Article 150 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, Rv), Trigion has the burden of establishing the facts and - in the event of a reasoned objection - of proving them, which, if proven, lead to the conclusion that [the employee] has acted or failed to act (seriously) culpably, since Trigion invokes the legal consequences thereof.

3.12.
3.12. Trigion's request for termination of the employment contract was based in particular on the fact that [the employee] is still an interested party on appeal:

i. systematically writes more hours on his timesheets over a longer period of time than he has worked;

ii. deviates from his weekly schedule without prior consultation with the planning department;

iii. does not contact the planning department if he has finished his work earlier;

iv. during working hours is in places where he should not be for his work;

v. has not wanted to give an explanation for the conduct mentioned under i., ii. and iv., although Trigion has given him the opportunity to do so on several occasions.

In this respect the Court considers as follows.

i. [the employee] systematically and over a longer period of time writes more hours on his timesheets than he has worked

3.13.
The hours worked are entered manually on a timesheet by the service technicians on a weekly basis. These timesheets shall state the total number of hours worked per working day and for which customer the hours were worked. It is possible that a service technician may not be billable for the entire working time per day (i.e. hours worked that can be charged to the customer). Therefore, a number of separate codes are included on the timesheet (at the bottom of the page) under which the billable hours (sick leave, working time reduction, time-for-time, days off, legal absence, indirect hours, public holidays, works council and study days) can be written down. There is also space at the bottom of the timesheet for declaring overtime. On the basis of the hours entered on the timesheets, invoicing is done to the customers and the wages are paid to the service technician.

3.13.1.
The service technicians leave directly from home with a company bus provided by Trigion to the customers where they are scheduled to work that day. The company bus is equipped with a GPS system that records when the company bus is whereabouts (the so-called 'black box'). In the event of a malfunction at a client's premises, the planning department can use the black box data to send the nearest mechanic to the malfunction. [the employee] was aware that there was also a GPS system (black box) in his company bus.

3.14.
Trigion conducted research into the black box data (trip registration) of [the employee's] company bus for the period April 2017 through April 2019. Trigion compared the results of that research with the time sheets of [the employee] for the same period. The timesheets of [the employee] for the period April 2017 to April 2019 (productions 15 to 17 at first instance) show that from April 2017 to April 2019, [the employee] wrote a total of 40 hours worked (8 hours worked per day) on his timesheets each week, which corresponds to the number of working hours agreed between the parties (160 hours per four-week period). On the other hand, according to the data from the black box, during the period in question [the employee] worked (much) fewer hours each week - with a few exceptions. Even if it is assumed with [the employee] that his travel time must be regarded as working time in full, there is still a (considerable) difference. In addition, it will be shown below that [the employee] was regularly in places where Trigion's customers are not located during working hours.

3.15.
In the notice of appeal, [the employee] argued that Trigion had acted contrary to the AVG by using the data from the black box in its company bus to check its timesheets (see further on in paragraph 3.46 ff.). The information obtained on this basis cannot serve as evidence, according to [the employee] .

The Court rejects [the employee's] argument; the statements submitted by Trigion (productions 8 and 10 by application in the first instance and production 21 by defence in appeal) can be taken as evidence. For the reasoning, the Court refers to the following consideration of the Supreme Court (HR 18 April 2014, ECLI:NL:HR:2014:942, as specifically confirmed for the employment relationship in ECLI:NL:HR:2014:1632):

"(...) It should also be noted that even if it is established that evidence has been unlawfully obtained by the party relying on it, in view of the provisions of art. 152 of the Dutch Code of Civil Procedure it is not a general rule that the court may disregard this. In principle, the general social interest that the truth be brought to light in court, as well as the interest that the parties have in being able to make their arguments plausible in court, outweigh the interest in the exclusion of evidence. Only if there are additional circumstances is the exclusion of such evidence justified (...)".

In so far as there is already evidence obtained unlawfully, [the employee] has not set out any additional circumstances justifying the exclusion of such evidence.

3.16.
Furthermore, [the employee] argues that he carried out administrative and preparatory work at home before starting his work and at the end of it. [the employee] states that the black box only records movements and times of departure and arrival. Thus, the black box data does not answer the question of whether work was still done before departure or after arrival, [the employee] states. That there are differences when the black box data are compared with the time sheets is therefore only logical according to [the employee]. The Court of Appeal considered that if [the employee] carries out preparatory and administrative work at home, he must write the hours spent on it on his timesheet as indirect hours (code 904), at least if that work does not relate to work for a specific client. The fact that [the employee] is aware of this is apparent from his timesheets. This shows that he has used that code regularly. However, the timesheets of [the employee] for the research period April 2017 through April 2019 (productions 15, 16 and 17 in the first instance) also show that [the employee] does not write any indirect hours on his timesheets for administrative or preparatory work in many weeks. This is inconsistent with his view that he spent a lot of time on this. As far as the administrative or preparatory work for a specific client is concerned, [the employee] has insufficiently substantiated Trigion's substantiated assertion that a service technician on average performs only a small amount of that kind of work. In view of Trigion's concrete assertions in the defence on appeal (e.g. about the client visits on January 10, 2019), [the employee] would have been on the right track to give concrete examples of the work he performed on behalf of named clients when he was not there and how much time this involved (approximately). He gave only a few examples (a technical drawing for C&A, a wirepipe, a report in connection with a renovation of AH in Tilburg) without indicating how much time was needed. The court understands that [the employee] cannot remember exactly everything after such a long time. But [the employee] also did not explain in a more general sense for which customers he had to carry out which preparatory or administrative work that could not be done on the location. All this means that [the employee] has not sufficiently motivated that he has done such a lot of administrative and preparatory work that it can explain the many and considerable differences between the black box data and his time sheets. For this reason, the Court is not entitled to adduce evidence on this subject.

3.17.
In the opinion of the court of appeal, this means that [the employee] has structurally and over a longer period of time (April 2017 to April 2019) written more hours on his timesheets than he has worked. It is also established that [the employee] thereby disadvantaged Trigion and its customers because [the employee] was paid for hours he did not work and hours not worked were charged to customers or debited from the customer's subscription with Trigion. However, [the employee] put forward as a liberating defence that the instruction was to write as many billable hours as possible on his timesheets and, if necessary, 'plus' the hours worked in order to ensure that the hours contractually agreed with the customer were also made on paper and that the employees had to ensure that there was a 100% billable working day. Trigion disputed that the instruction given by [the employee] was valid. This means that [the employee] will have to prove that instruction.

To the extent that [the employee]'s contention should not be qualified as a liberating defence, the requirements of reasonableness and fairness in this case imply that [the employee] is charged with proving it for the following reasons. Trigion has asked [the employee] to provide an explanation for the difference between the trip records and his timesheets and has given him ample time and opportunity to do so, but [the employee] has systematically refused to do so until the oral hearing of these proceedings in the first instance (see paragraph 3.33.). In addition, [the employee] deliberately also recorded work on a day on his timesheet other than the day on which he performed the work (see paragraph 3.20.). This means that [the employee] deliberately entered at least part of the information on the timesheets contrary to the truth, while it has neither been stated nor appeared that any instruction was given to that effect.

3.18.
The Court will therefore charge [the employee] with proving that [the employee] was instructed to write as many billable hours as possible on his timesheets and, if necessary, 'plus' the hours worked, as indicated in the preceding recital.

ii. [the employee] deviates from his weekly work schedule without prior consultation with the planning department

3.19.
Within Trigion there is a planning department that is responsible for scheduling the work/assignments at the clients. This department makes a weekly schedule for each field employee, including [the employee] , which is sent to the employees in advance. The planning department determines the order of work. During a meeting in January 2019, Trigion (again) brought to the attention of the service employees that the weekly planning is leading and that this may only be deviated from after prior consultation with the planning department. It is certain that [the employee] attended this meeting. On

March 8, 2019, [the employee] received an overview of the cases discussed during this meeting by e-mail (production 4 by petition in first instance).

3.20.
The examination of [the employee's] black box data in combination with his timesheets for the period April 2017 through April 2019 revealed (undisputedly) that [the employee] deviated from the weekly schedule itself determined the order of his work by visiting customers scheduled for a later point in the week earlier in the week. At the appeal hearing, [the employee] stated that he did so in order to be able to serve Trigion's customers as well and as efficiently as possible and that he saw no reason to first seek alignment with the planning. However, [the employee] is acting contrary to the instruction given by Trigion and known to [the employee] that the weekly planning is leading and that this may only be deviated from after prior consultation with the planning. However, according to [the employee] this was in practice frequently and in good consultation deviated from. The Court understands the statements of [the employee] (point 3.5 of the defence) in this way, that even after the instructions given at the beginning of 2019, the employees frequently deviated from the weekly planning without prior consultation with the planning department and that Trigion was aware of this. In evidence of his statements, he submitted statements from colleagues. According to Trigion, this was not the case and, on the contrary, discipline was expected from the employees.

It is undisputed that [the employee] also acted contrary to the instructions by writing the time spent with the client on his timesheet on the day he was scheduled to be with this client, even though he had already visited the client in question earlier in the week. Thus, [the employee] on his timesheet of Friday, March 29, 2019 3 hours of work for client MRZK Merefelt in Veldhoven, while he was there according to his black box data on Monday, March 25, 2019. Similarly, on Wednesday, February 13, 2019 when [the employee] visits the WC Molenhoek Passage, a customer where he must be only on Thursday, February 14, 2019 and only on that day has written the hours. The black box data of [the employee] also shows that on Friday 29 March 2019, the day on which [the employee] is scheduled to visit client MRZK Merefelt, for which he also writes 3 working hours that day, but where he has already been on Monday 25 March 2019, [the employee] will stay for more than an hour during working hours on a residential boulevard at the Ekkersrijt in Son, while that is not a customer of Trigion (see further below under '[the employee] is in places where he should not be during working hours'). So again, [the employee] does not write the hours truthfully on his timesheet. Moreover, [the employee] makes it appear to Trigion as if he is at work, while the black box data shows the opposite.

3.21.
3.21. [the employee] has put forward as a defence that the weekly schedules have not been classified logically and efficiently. If at all (Trigion has disputed this), it was up to [the employee] to discuss this with the planning department or his supervisor so that, if necessary, improvements could be made. This was no reason for [the employee] not to follow the instructions and to deviate from his weekly schedule on his own initiative. But if it was customary (even after the instructions given at the beginning of 2019) to deviate without consultation and Trigion was aware of this, then this is different. For the same reasons as mentioned above, [the employee] will have to prove this.

3.22.
3.22. [the employee] has submitted a number of e-mails that he sent to the planning department (production 14 by appeal). In so far as he wants to prove that the planning was not logical and efficient, the Court refers to the previous consideration. Insofar as he wants to demonstrate with the e-mails that he did not deviate from the weekly planning without prior consultation, the following applies. These e-mails all date from after the conversation that [the employee] had on 6 June 2020 with his then manager and the then director of Trigion. One of the issues discussed during that meeting was that [the employee] does not adhere to the weekly schedules he receives from the planning department. Of the period prior to that, no evidence was presented that [the employee] had been in contact with the planning department about an adjustment of his weekly planning, nor was any such evidence presented. It is precisely in this period that [the employee] has deviated from his weekly plans.

iii. [the employee] does not contact the planning department if he has finished his work earlier

3.23.
If the service technician finishes the scheduled work for that day earlier, he must contact the planning department by telephone. The planning department will then determine whether additional work can be assigned or whether the employee can go home. The latter may be the case when there is no more work for that day or the employee is unable to do additional work due to time constraints. That this is the working method at Trigion is also shown by the (similar) statements of four of [the employee's] former colleagues (productions 24a through 24d in the appeal). It is not disputed that [the employee] is familiar with this working method. When [the employee] does not report to the planning department when he has finished his work earlier, the planning department cannot assign [the employee] to other work, which leaves work lying around or entrusts colleagues of [the employee] with it. Also, less efficient planning can be done if there is insufficient visibility on the time that employees may have left after the scheduled work.

3.24.
The court holds that the obligation to postpone and - now that [the employee] disputes this - the burden of proof that [the employee] did not call the planning department if he had finished his scheduled work for that day earlier, rests on Trigion by virtue of the main rule of article 150 Rv. In support of this claim, Trigion submitted written statements from two employees of the planning department (productions 22 and 27 in response to an appeal). From both statements it appears (among other things) that [the employee] (almost) did not contact the planning department by telephone to ask whether there were any other activities when he did not have enough work or had finished his work earlier. To further substantiate her claim that [the employee] did not contact the planning department by telephone, Trigion had a survey conducted by the telephone provider of [the employee's] business telephone number. Trigion asked the provider to dial a list of the phone numbers that [the employee] called from his business phone on the days he stated in the appeal that he called the planning department. In the context of [the employee's] privacy, this telephone list includes only the telephone numbers of the planning department and the employees who work(s) there (production 30 on appeal). This list shows that [the employee] of the sixteen times he states in the appeal that he called the planning department, in only four cases called the planning department with his business phone. Only after the court at the hearing had presented the results of the investigation into the telephone data to [the employee], did [the employee] state that he not only called the planning department with his business phone, but also with his private phone or with the phone of a customer where he was working.

3.25.
On the basis of the written statements submitted by the two planning department employees (productions 22 and 27 on appeal) and the list of telephone numbers submitted, [the employee] called from his business telephone on the days he stated in the appeal that he called the planning department, originating from the telephone provider of [the employee's] business telephone number (production 30 in response to appeal), the Court of Appeal considers Trigion prima facie successful in proving that [the employee] did not or hardly call the planning department if he had finished his scheduled work for that day earlier. However, the court will allow [the employee], in accordance with the employee's offer, to provide counter evidence against that Trigion's prima facie assertion. This means that [the employee] must refute that claim. The bare assertion of [the employee] that he not only called the planning department with his business phone, but also with his private phone or with a customer's phone, is not sufficient, as [the employee] has not substantiated this assertion.

iv. [the employee] is in places where he should not be during working hours

3.26.
The examination of the black box data (trip registration) of [the employee] for the period April 2017 to April 2019 shows (undisputedly) that during working hours [the employee] is in places where no customers of Trigion are located and therefore where he should not be at that time.

3.27.
It has already been considered that [the employee] was on a residential boulevard for more than an hour during working hours on 29 March 2019. [the employee] has not disputed this. Furthermore, [the employee] has not disputed that on 7 January 2019, 8 January 2019 and 2 April 2019, he stayed during working hours at addresses in Arnhem (almost two hours), Ede/Renkum (over an hour and over 20 minutes) and Nijmegen (almost an hour) respectively, where he was not supposed to be because Trigion did not have a customer there. It is undisputed that the address in Arnhem has a sports store and the addresses in Ede and Nijmegen respectively a DIY store and a shopping center. Also on April 5, 2019 [the employee] was (undisputedly) during working hours in places where he was not supposed to be. Furthermore, it is certain that [the employee] frequently stayed at the gym of his stepson at the [address] in [place] during working hours.

3.28.
It is also established that [the employee] made several visits to Odiliapeel during working hours. The court rejects [the employee's] defence that he went there to collect work-related material. The prints of websites of two companies from Odiliapeel ( [store] Store and [trading company] Trading Company), which [the employee] has submitted in support of this assertion, are insufficient to accept this. This does not show that [the employee] visited these companies. Both companies are located at other addresses than the addresses in Odiliapeel where [the employee] according to his black box data has been. Furthermore, does not appear an instruction from Trigion to [the employee] in Odiliapeel work-related material to retrieve. Furthermore, according to the own statements of [the employee] it is common material that had to be retrieved, namely pvc supplies. The employee did not explain why this material had to be picked up from a company in Odiliapeel, which makes it all the more unlikely that [the employee] visited Odiliapeel for that purpose.

3.29.
It is not disputed that [the employee] drove to Wolvega during working hours for private purposes. The fact that [the employee] was reported sick to Trigion at the time does not detract from that. In fact, this action of [the employee] is in conflict with the sick leave procedure, under which specific times of stay at home apply and the employee has to provide his home address to the employer. Neither did [the employee].

3.30.
Finally, it is established that [the employee] visited the Kempervennen during working hours for private purposes. As an undisputed fact, it is established that [the employee] drove 113 kilometers, or more than two hours, during working hours. Time during which he could also have worked for Trigion.

3.31.
On the basis of the above, the Court concludes that it has occurred more than once that [the employee] was in places where he was not supposed to be during working hours. In the majority of cases these were not locations in the immediate vicinity of [the employee's] home address in [place of residence] . In addition, [the employee] did not provide a (sufficient) explanation for his visits to Odiliapeel, a residential boulevard, a sports store, a DIY store and a shopping center during working hours, where no customers of Trigion are located. The above is all the more compelling because [the employee] performed his duties as a field employee. Field workers such as [the employee] enjoy a high degree of trust from Trigion, because Trigion cannot and does not want to control what a field worker does throughout the working day, nor can this be expected of Trigion. Trigion can therefore be confident that a field employee such as [the employee] behaves like a good employee and does not abuse the freedom in which that job can be performed.

3.32.
3.32. [the employee] has also argued that at times when he stayed elsewhere during working hours, he kept himself available for work. According to [the employee], it does not matter where he is in that case. The court rejects this claim of [the employee] . Trigion has explained that it estimates where the employees are located on the basis of the planning and allocates extra work on that basis. If employees move to places other than those known to Trigion, it is impossible for Trigion to plan efficiently and deploy its employees effectively, for example by sending the nearest service technician to a breakdown. In the opinion of the court, [the employee] should have realized this and should have taken it into account. From what Trigion has argued, it appears that it is not a matter of an occasional short break in the vicinity of the client. According to Trigion, she does not make a point of it when, for example, a stop is made to pick up a sandwich at a supermarket. It follows from the above that it concerns frequent inexplicable addresses and detours.

v. [the employee] did not want to give an explanation for the conduct mentioned under i., ii. and iv., although Trigion has given him the opportunity to do so on several occasions.

3.33.
During an interview on 6 June 2019, Trigion informed [the employee] that the investigation of his black box data and time sheets revealed that he systematically wrote more hours on his time sheets than he had worked. Trigion has further indicated that based on the investigation it has found that [the employee] does not keep to the schedule but determines the order of his work contrary to the instructions themselves and that [the employee] is regularly in places where he is not supposed to be during working hours. Trigion has asked [the employee] to give an explanation why his time and trip records do not match and for the other things found. At the end of the interview on 6 June 2019, Trigion provided him with an overview of the black box data, the results of the investigation into the black box data and the time sheets of [the employee] and the questions that Trigion still has, on paper. In this way, Trigion wanted to give [the employee] the opportunity to sort things out in order to be able to provide the requested statements. Trigion invited him for a follow-up interview on 20 June 2019. Shortly before that meeting, he let it be known that he does not want to give an explanation. Trigion then gave [the employee] a week to come up with a statement. On 22 June 2019, [the employee] sent an e-mail to Trigion (production 13 by application in first instance), but in it he did not give the requested statements. During a subsequent interview on 27 June 2019, [the employee] again refused to provide a statement. Given the seriousness of the observed behavior, [the employee] could have been expected to provide an explanation at that time. In view of the detailed explanations that [the employee] currently provides in the notice of appeal, it may be assumed that the lapse of time did not constitute an obstacle to this. Trigion also gave [the employee] ample time and opportunity to come up with an explanation. Given the nature and scope of the accusations made, in light of the freedom that [the employee] had in his function and the trust that Trigion should have in him (see 3.31.), the principle of being a good employee implies that [the employee] had to respond to these accusations in substance and owed Trigion a declaration.

Interim conclusion

3.34.
The court of appeal concludes that of the reproaches discussed above, the starting point now is in any case that [the employee] has repeatedly and for a considerable period of time been in places where he should not have been during working hours and that, if asked, he has refused to give an explanation for this, although Trigion has given him the opportunity to do so on several occasions. In view of the nature and extent of the accusations and what has been considered above about the trust that Trigion was allowed to have in [the employee], the court of appeal is of the opinion that this is such an accusable act that Trigion could not reasonably be required to allow the employment contract to continue.

3.35.
Contrary to the opinion of [the employee], he was indeed a warned person.

In a letter dated 8 September 2000, Trigion's legal predecessor ([fire prevention] Brandpreventie B.V.]) called upon [the employee] to leave work prematurely without notice. In addition, this letter confirms to [the employee] , as was discussed with him in an interview on September 7, 2000, that he does not have to take care of planning matters himself with his colleagues in the field. Also, by means of this letter, [the employee] receives a first written warning for the violation of his working hours and is informed in the letter that a third warning may result in dismissal. In a letter of 18 July 2005 to [the employee] it is mentioned that in the first quarter of 2005 [the employee] had declared 40 hours more on his time sheets than [fire prevention] Fire Prevention B.V. (the legal predecessor of Trigion) could trace that he had worked. According to [the employee], that letter was about his position in the event of an employment condition change. The court can follow [the employee] in the sense that the letter refers to attitude and behavior. But apart from that, [the employee] was also addressed in that letter about overdeclaration.

3.36.
3.36. [the employee] argues that the contents of the letters from 2000 and 2005 cannot be attributed any significance, given the passage of time since then and because they do not concern events at Trigion. Although the letters have been written a long time ago, this does not mean that no meaning can no longer be attributed to them. The court of appeal is of the opinion that it had to be clear to [the employee] that he was not allowed to be anywhere during working hours for private purposes (to the extent and in the places as discussed above). The [employee] should also have realized this if he had not received these letters, but because of these earlier letters he should have been able and realized once more that this was not acceptable for Trigion. It is true that the letters came from [fire prevention] Brandpreventie B.V., but as [the employee] himself indicates, this is the legal predecessor of Trigion.

3.37.
It follows from the above that the Court of Appeal, like the Subdistrict Court, is of the opinion that there is a reasonable ground for dissolution of the employment contract within the meaning of Section 7:669 (1) of the Dutch Civil Code. In view of the ground for dissolution, reinstatement is not reasonable.

3.38.
The conclusion is therefore that Trigion's request for dissolution of the employment contract was rightly granted on the ground that culpable conduct within the meaning of Section 7:669 subsection 3 opening words and under e of the Dutch Civil Code was involved. However, this does not mean that this culpable act must also be qualified as serious culpable act. Whether this is the case will only be judged by the court of appeal after the provision of evidence (see paragraphs 3.18. and 3.25.).

3.39.
In the first instance, in addition to the reproaches mentioned in 3.12 and discussed above, Trigion also argued that [the employee] :

vi. exceeded the total number of permitted private kilometers with the company car provided by Trigion;

vii. has ancillary work (his own company).

It follows from the above that this is no longer relevant for the dissolution.

The request pursuant to Section 7:683(3) of the Dutch Civil Code for repair or the granting of a fair compensation

3.40.
The request of [the employee] pursuant to Section 7:683(3) of the Dutch Civil Code for recovery or the granting of fair compensation must be rejected. Section 7:683 (3) of the DCC stipulates as a condition that the employer's request for dissolution of the employment contract in the first instance has been wrongly granted. This condition was not met in this case, since the Court of Appeal, like the Subdistrict Court, was of the opinion that [the employee] had acted imputably, to such an extent that Trigion could not reasonably be required to allow the employment contract to continue and that reinstatement would not be reasonable.

Transition compensation

3.41.
The Subdistrict Court rejected the transition compensation requested by [the employee] because, in the opinion of the Subdistrict Court, there was serious culpable act or omission on the part of [the employee] (Section 7:673 subsection 7 opening words and under c BW). The Subdistrict Court saw no further reason to apply Section 7:673 (8) of the Dutch Civil Code which provides that, contrary to Section 7:673 (7) opening words and under c of the Dutch Civil Code, the Subdistrict Court may grant the transition allowance in whole or in part to the employee if not granting it according to standards of reasonableness and fairness is unacceptable. Both decisions are subject to appeal by [the employee].

3.42.
Whether or not [the employee] is guilty of serious culpable acts or omissions within the meaning of Section 7:673(7) opening words and under c of the Dutch Civil Code, can only be assessed by the Court of Appeal after proof has been provided (see paragraph 3.38.). The decision on the transition compensation and, if and insofar as it would be judged that there is serious culpable act or omission on the part of [the employee] as referred to in Section 7:673 subsection 7 opening words and under c BW, answering the question whether not granting the transition compensation according to standards of reasonableness and fairness is unacceptable as referred to in Section 7:673 subsection 8 BW, the court of appeal will therefore stay pending the submission of proof.

3.43.
With respect to the question whether a transition fee is due, the court of appeal must reject the allegations that

that [the employee] :

vi. has exceeded the total number of permitted private kilometers with the company car provided by Trigion;

vii. has ancillary activities (own company)

(see paragraph 3.39.) are still included in the assessment. With regard to vi., the Subdistrict Court considered that this is primarily a tax issue, and with regard to vii. that this is insufficiently substantiated or insufficiently imputable. From the procedural attitude of Trigion the Court of Appeal concludes that Trigion agrees with the judgment of the Subdistrict Court on these points. However, if this would not be the case, the court of appeal is of the opinion that these accusations are insufficient for the withholding of a transition fee (also considered in connection with the other accusations). Therefore, the court of appeal will not further examine the correctness of these reproaches.

Dissolution date and fair compensation for serious culpable acts or omissions by Trigion

3.44.
The Subdistrict Court dissolved the employment contract with effect from 1 January 2020. The employee is appealing against this. [the employee] argues that the duration of the dissolution procedure cannot be deducted from the notice period, because the dissolution of the employment contract is the result of serious culpable actions by Trigion (Section 7:671b paragraph 9 opening words and under a BW). The employee] states that, assuming a notice period of four months and termination at the end of the four-week period, the Subdistrict Court dissolved the employment contract twelve weeks prematurely.

3.45.
In support of his assertion that the dissolution of the employment contract is the result of serious culpable actions by Trigion within the meaning of Section 7:671b (9) opening words and under a of the Dutch Civil Code, [the employee] argues that Trigion has wrongly accused him of working too few hours for a series of years and of recording more hours than he has worked. That [the employee] has done so is certain. It still matters whether the reason given by [the employee] is correct. However, if [the employee] succeeds in providing proof, this does not mean that Trigion has acted seriously culpable towards [the employee] by making this accusation. As mentioned above, [the employee] initially did not want to give any explanation at all. This weighs in the balance in this respect. The court of appeal is of the opinion that the heavy standard of serious culpability has not been met. The court of appeal therefore sees no reason to change the dissolution date. Since the dissolution is the result of culpable actions by [the employee], there is no reason to grant him fair compensation as referred to in Section 7:671b (9) of the Dutch Civil Code.

Compensation for violation of the right to privacy

3.46.
[the employee] requests on appeal that Trigion be ordered to pay him damages of €5,000 for infringement of the right to respect for his privacy. In support of his claim, [the employee] argues that Trigion has acted in violation of the AVG by using the data from the black box in his company bus to check his timesheets. In this respect, the Court of Appeal considers as follows.

3.47.
Trigion's parent company, Facilicom Group, has a privacy policy that applies to all subsidiaries, including Trigion. This privacy policy forms part of the protocol tracking systems that regulates the use of the black box data (production 5 by first instance petition). When his company car was put into service on 12 March 2015, [the employee] signed a form in which he declares that he is familiar with and agrees with the content of the car regulations within Trigion (production 26 by appeal). Article 6.4 of this car scheme reads:

"6.4 GPS systems

In many cases, the company car is equipped with a GPS system (blackbox). In order to have a balanced policy regarding the use of the GPS systems, where both a responsible use of the GPS systems is pursued and the privacy of employees is protected, the employer has drawn up a protocol regarding the use of GPS systems. Each member of staff is required to behave in accordance with this protocol. This protocol is an inseparable part of this car regulation and will be handed over to staff members upon ordering the company car. The protocol can also be read on the intranet.

3.48.
3.48. [the employee] has not disputed that the protocol tracking systems were handed over to him when he ordered his company car and that he has access to the employee portal (intranet) on which the protocol was placed. Furthermore, it is undisputed that all documents relating to Facilicom Group's privacy policy, including the protocol on monitoring systems, were sent in an updated form to every employee of Facilicom Group and its subsidiaries, including Trigion, before the AVG came into effect in May 2018. [the employee] has not disputed that he (re-)received the protocol tracking systems at that time. [the employee] may therefore be assumed to be familiar with the existence and content of the protocol monitoring systems.

3.49.
The reason for the investigation into the black box data of [the employee] is, as Trigion claimed, among other things the repeated refusal of [the employee] to perform work recordings because he says he is 'too busy' to do so, while his colleagues do get the scheduled work done on time. In addition, the times entered on a work order of [the employee] from week 9 of 2019 did not match the times that [the employee] had entered on his timesheet of the same week. Finally, the fact that [the employee] had been called upon to write more hours in the past than he had worked, also played a role (see 3.35.). In the opinion of the court of appeal, this is a case of compelling reasons within the meaning of Article 9 of the protocol on monitoring systems. That article reads as follows:

"Article 9

Articles 05 to 08 do not affect the fact that on an occasional basis checks can be carried out on behalf of the management (also outside the service) for serious reasons including the suspicion of abuse or the suspicion of criminal or disciplinary acts. In this respect, the employee may never invoke violation of privacy.

3.50.
In the opinion of the Court of Appeal, Trigion was therefore entitled to check the black box data of [the employee] - also outside the scope of [the employee's] employment - without [the employee] being able to invoke an infringement of privacy in this respect.

3.51.
Trigion has carried out the investigation into the black box data of [the employee] in phases. The former manager of [the employee] has always requested the consent of the former director of Trigion before extending the investigation (see productions 5, 7 and 9 by petition in first instance). Initially, Trigion only examined the black box data and the timesheet of [the employee] of week 9 of 2019, in connection with the irregularities found in a work order of the same week. When that investigation showed that [the employee] wrote more hours on his timesheet than he worked according to the black box data, Trigion extended the investigation to the period from 1 January 2019. Only when that research also showed that [the employee] systematically wrote more hours on his timesheet than he was working, Trigion, in order to be sure that it concerned resistant behaviour, went back in her research to April 2017. The above explains and justifies that Trigion only asked [the employee] for an explanation after the research results for the entire research period from April 2017 up to and including April 2019 became known. Trigion first wanted to rule out that these were incidents.

3.52.
In the opinion of the court, contrary to the opinion of [the employee], Trigion's use of the black box data to check [the employee's] timesheets does not raise any objections. The timesheets are specifically intended for Trigion. The timesheets also only state the hours worked, as well as any indirect hours, whereby Trigion must be informed in advance of doctor's and hospital visits, so that Trigion is already familiar with them. The timesheets also list the customers who [the employee] visits. The timesheets therefore only affect the privacy of [the employee] to a limited extent. The black box data do affect the privacy of [the employee] because these data also show where [the employee] has been in private time. However, the company bus could only be used privately for a limited number of kilometers. So there was an invasion of privacy, but that invasion was limited, necessary and in proportion to Trigion's interests. It is impossible to see in what other less far-reaching way Trigion could have investigated whether its suspicions were correct. In short, given the reason for the investigation and the manner in which it was carried out, the infringement was justified.

3.53.
In view of the above, the Court of Appeal comes to the conclusion that the investigation into the black box data in combination with the time sheets of [the employee] was carried out in accordance with the AVG and that the privacy of [the employee] was not violated to such an extent by that investigation that it was unlawful. In view of the foregoing, [the employee]'s request for compensation for breach of his privacy is not eligible for award.

Final sum

3.54.
The Court concludes that it will ratify the contested order as regards the dissolution and the date of dissolution. The Court will reject [the employee's] requests for equitable compensation and compensation for breach of privacy. The only thing still in dispute is whether [the employee] is entitled to the transition compensation (or part thereof). This depends on whether or not [the employee] has acted in a seriously culpable manner. Evidence is required for this. Pending the provision of evidence, the court of appeal will make any further decision in this respect.

4. The decision

The court:

1. allow [the employee] to prove that Trigion's instruction was to write as many billable hours as possible on the timesheets and, if necessary, to 'plus' the hours worked in order to ensure that the hours contractually agreed with the customer were also made on paper and that the employees had to ensure that there was a 100% billable working day;

2) allow [the employee] to provide rebuttal evidence against the previously proven claim that he did not call the planning department if he had finished his scheduled work for that day earlier;

3) allows [the employee] to prove that it was customary (even after the instructions given by Trigion in early 2019) to deviate from the weekly planning without consultation and that Trigion was aware of this;

determines, in case [the employee] wants to provide evidence by witnesses, that witnesses will be heard before Mr. J.F.M. Pols as counsel commissioner, who will sit at the Palace of Justice at Leeghwaterlaan 8 in 's-Hertogenbosch on a date to be determined by the latter;

provides that [the employee] must submit a written statement no later than September 24, 2020, stating the number of witnesses and the dates on which the parties themselves, their lawyers and the witness(es) are prevented from attending in the months of October, November and December 2020 and January and February 2021;

provides that [the employee's] lawyer shall give the names and addresses of the witnesses to be heard to the opposing party and to the civil registry at least seven days before the hearing;

reserves any further decision.

This decision was made by J.F.M. Pols, M. van Ham and R.J. Voorink and was pronounced in public on 10 September 2020.