Rb. Zeeland-West-Brabant - 10072897 AZ VERZ 22-61

From GDPRhub
Rb. Zeeland-West-Brabant - 10072897 AZ VERZ 22-61
Courts logo1.png
Court: Rb. Zeeland-West-Brabant (Netherlands)
Jurisdiction: Netherlands
Relevant Law: Article 4(2) GDPR
8 ECHR
7:677 BW
7:678(2)(j) BW
Decided: 28.09.2022
Published: 04.10.2022
Parties: Chetu Inc.
National Case Number/Name: 10072897 AZ VERZ 22-61
European Case Law Identifier: ECLI:NL:RBZWB:2022:5656
Appeal from:
Appeal to: Not appealed
Original Language(s): Dutch
Original Source: de Rechtspraak (in Dutch)
Initial Contributor: sharkbait_HoHa123

The District Court of Zeeland-West-Braband held that the controller could not fire one of its employees for refusing to turn his camera on for the entire working day. The Court found the company’s demand in violation of art. 8 ECHR and awarded approx. €75,000 to the former employee in damages.

English Summary[edit | edit source]

Facts[edit | edit source]

Chetu Inc (the controller) is a Florida based company that has a branch in the Netherlands. It develops, produces and publishes software and provides consultancy and support for information technology. The data subject worked for the controller since 14 January 2019. The data subject signed a statement stating that his employment was “at-will employment”, meaning that the company may terminate the employment relationship without cause or previous notice, at any time.

On 23 August 2022, the data subject received an e-mail from the controller announcing his attendance for the Corrective Action Program (CAP)-virtual classroom where he had to be logged in during the entire work day, to share his screen and leave his camera on. On 25 August 2022 the data subject responded, stating he was uncomfortable being monitored 9 hours a day by camera, and that it was an invasion of his privacy, as he already has his activities on his laptop and his screen being monitored. After two more warnings for the data subject to his camera on, the controller sent an e-mail the same evening, stating that the data subject’s employment is terminated with the reason being: “Refusal to work, Insubordination.”.

Holding[edit | edit source]

The Court held that the summary of the dismissal was not legally valid, following the requirements under article 7:677(1) of the Dutch Civil Code (BW). The provision states that there must be an ‘urgent reason’, the dismissal must be without delay, and the reason must be communicated to the employee in a timely and sufficiently clear manner. The e-mail sent to the data subject listed “refusal to work” and "insubordination” as the ‘urgent reasons’.

The Court found that the reason was not sufficiently clear, as the email had no explanation on the nature and seriousness of the behaviour which underlay the ‘urgent reasons’ stated in the e-mail. The e-mail correspondence also did not sufficiently prove that the data subject refused to perform his assigned activities. Hence, the alleged refusal to work did not constitute an urgent reason for the dismissal granted.

The Court also found that there was no unruly or disobedient behaviour, as there was no reasonable instruction that the data subject had to comply pursuant to the definition of reasonable orders under article 7:678(2)(j) BW. It held that Art. 8 ECHR is applicable for the underlying employer-employee relationship, where the state did not sufficiently protect the fundamental right.

The court held that since the data subject was only observed during working hours, and there were no recordings that were stored or used, there was an absence of processing of data within the meaning of Article 4(2) GDPR, hence the lawfulness of the observation was tested directly against Article 8 ECHR. The requirement by the controller to leave the data subject’s camera on is contrary to his right to respectful private life without any justification under Article 8 ECHR. Hence, there was no refusal to comply with a reasonable order/instruction by the data subject, therefore no urgent reason for instant dismissal either.

The Court awarded the data subject an approximation of €75,000 in compensation for reasons including wages, vacation allowance and transit compensation.

Comment[edit | edit source]

Share your comments here!

Further Resources[edit | edit source]

Share blogs or news articles here!

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.

COURT ZEELAND-WEST-BRABANT

Cluster I Civil Subdistrict Cases

Location Tilburg

Case number 10072897 AZ VERZ 22-61

decision dated September 28, 2022

regarding

[name of applicant]

living in Diessen

requesting party

hereinafter referred to as: [name of applicant]

authorized representative: mr. M.J. Spieringhs

against

the company under foreign law

Chetu Inc.

with registered office in Miramar Florida (United States)

defendant

hereinafter referred to as: Chetu Inc.

did not appear in the proceedings

1 The process

1.1.

The course of the procedure is apparent from:

the application with 13 exhibits filed by [name of applicant] at the registry on September 2, 2022;

the additional exhibits 14 to 18 received from [name of applicant];

the additional exhibits 19 to 21 received from [name of applicant];

e notes of the registrar of the oral hearing of the request at the session of September 14, 2023;

the speaking notes submitted by [name of applicant] at the hearing.

1.2.

It appears from documents submitted by [name of applicant] that the application was sent by him to Chetu Inc. by digitally registered mail on August 31, 2022. was sent and received by it on that day. That same day, the petition was also sent by bailiff's writ to the then office address of Chetu Inc. in Rijswijk.

According to an extract from the trade register, the Dutch branch of Chetu Inc. canceled as of August 31, 2022 and deregistered from the trade register as of September 1, 2022. Furthermore, according to an email from the HR department of Chetu Inc. in the United States that it has been informed of the pending procedure. Despite this, Chetu Inc. no statement of defense filed, nor did she appear at the hearing.

2 The facts

2.1.

The assessment of the request will be based on the following, if Chetu Inc. not contradicted in legally established facts:

- Chetu Inc. is a Florida (United States) based company with, until recently, also a branch in Rijswijk (South Holland). Its business activities consist of developing, producing and publishing software and of advice and support in the field of information technology. It employs approximately 2,600 people worldwide.

- [name of applicant] was on January 14, 2019 on the basis of an employment contract with Chetu Inc. entered service. In the position of 'inside sales representative' his activities consisted of acquisition of new customers. His remuneration consisted of a salary of €3,297.00 gross per month, excluding 8% holiday allowance, a commission of €4,110.00 gross per month (on average in 2022) and a variable bonus of approximately €3,739.15 gross per year.

- Part of the employment contract is a Confidentiality and Non-competition Agreement. It includes, among other things:

“6. Non-Competition.

(…) The Employee therefore agrees that during the Term, and for a period of two (2) years thereafter (the “ Non-Compete Period ”), he/she will not (other than as a director, manager, employee, agent or consultant of the Company), directly or indirectly, as an individual proprietor, partner, shareholder, member, officer, director, manager, employee, consultant, independent contractor, joint venturer, investor or lender, participate in any business or enterprise engaged in the design, development, manufacture, distribution or sale of any products or the provision of any services which are the same as, similar to or competitive with the products or services which the Company or any of its subsidiaries were designing, developing, manufacturing, distributing , selling or providing, or planning to design, develop, manufacture, distribute, sell or provide, at any time while the Employee was employed by the Company, unless the Employee shall have obtained the prior written consent of the Compan y. (…)”,

“24. Penalty Clause

In the event of infringement of one or more conditions in this agreement, the Employee shall forfeit to the Company a fine payable forthwith and at once, without a warning or notice of default being required, amounting to € 150.00 per infringement and for each day or part thereof that the infringement continues, without prejudice to the Company's right to claim full damages instead of such a fine. (…)”.

- On September 1, 2019, [name of applicant] the following, by Chetu Inc. statement submitted to him signed:

“I have accepted a position in this Company. I understand that the first 90 days of employment are considered introductory. Furthermore, I also understand that completion of these 90 days of employment, does not constitute an employment contract. My employment with this Company is an “at-will employment,” which means that I or this Company, may terminate the employment relationship for any reason, with or without cause and/or previous notice, at anytime.”

- [name of applicant] always performed the work from his own home. The branch of Chetu Inc. he never visited Rijswijk.

- On August 23, 2022, [name of applicant] received an email from Chetu Inc. announcing that he was required to participate in the Corrective Action Program (“CAP”) – Virtual Classroom with immediate effect. He had to be logged in during the entire working day, to share his screen and to leave his camera on.

- After Chetu Inc. on 25 August 2022 [name of applicant] reminded [name of applicant] of that instruction [name of applicant] responded as follows:

“I don't feel comfortable being monitored for 9 hours a day by a camera. This is an invasion of my privacy and makes me feel really uncomfortable. that's the reason why my camera isn't on. You can already monitor all activities on my laptop and I am sharing my screen.”.

- [name of applicant] then responded similarly on August 26, 2022 after two more insistent instructions from Chetu Inc. to him to turn on his camera. That same evening, [name of applicant] received from Chetu Inc. an email with the following content:

“Hi [name of applicant] ,

Your employment is hereby terminated.

Reason: Refusal to work; Insubordination”.

- On September 1, 2022, because of Chetu Inc. € 4,220.46 credited to the bank account of [name of applicant]. A payment reference or explanation was not provided.

3 The request

3.1.

Initially, [name of applicant] requested that the immediate dismissal given to him and Chetu Inc. However, at the hearing he stated that he was acquiescing in that dismissal and he has requested by order, provisionally enforceable as far as possible:

I. Chetu Inc. order him to pay the fair compensation stated in the application under item 8, or at least a fair compensation to be determined in good justice;

II. grant him compensation for irregular termination, as stated under point 8 of the application;

III. Chetu Inc. order him to pay a transition payment, as stated under point 8 of the petition;

IV. to grant him an allowance equal to the wage plus holiday allowance for 23 holiday days, as well as the final holiday allowance statement, as stated under point 8 of the application;

V. Chetu Inc. to be ordered to pay the salary of € 3,297.00 gross, plus the holiday allowance, commission of € 4,110.00 gross and other emoluments from 1 August up to and including 26 August 2022, plus the statutory increase pursuant to Article 7: 625 CC;

VI. Chetu Inc. to be ordered to submit the salary specifications from 1 August 2022, subject to a penalty of € 1,000.00 per day that Chetu Inc. defaults;

VII. Chetu Inc. to order him to pay the statutory interest from the time of payment of the aforementioned amounts until the day of full payment;

VIII. annul, or at least moderate (in duration and region) the non-competition clause that applies worldwide for 2 years and set the fine to nil, or at least moderate it;

IX. Chetu Inc. order to pay the costs of the proceedings.

3.2.

In substantiation of these requests, [name of applicant] has stated in summary that there was no urgent reason justifying the immediate dismissal given. The letter of resignation (e-mail) is insufficiently specific. It appears that the reason for the dismissal was that he did not want to keep his camera on for 9 hours a day so that Chetu Inc. could control him. Camera surveillance during 9 hours a day is disproportionate and not allowed in the Netherlands. In addition, he was already checked for output via software installed on his laptop. There was no question of refusal to work. Nu Chetu Inc. does not have an urgent reason as referred to in Section 7:678 of the Dutch Civil Code (BW), the dismissal granted is immediately voidable. However, he acquiesces in the dismissal and he is entitled to the above-mentioned compensation, as well as to the arrears of wages, etc.

With regard to his request to annul or mitigate the non-competition clause, [name of applicant] has stated that he does not have important information and knowledge of unique business processes, that Chetu Inc. has not made excessive investments in training and mentoring that Chetu Inc.'s business throughput. is not affected and that he is hindered in his free choice of employment.

3.3.

As with 1.2. established above, Chetu Inc. no defence.

4 The assessment

4.1.

[name of applicant] has accepted the summary dismissal granted to him and has requested that he be granted various compensation at the expense of Chetu Inc..

4.2.

It follows from the statements of [name of applicant] that Chetu Inc. the wages for the period of

Has not paid out in full from August 1, 2022 to August 26, 2022. She will therefore be ordered to do so, as well as to pay 8% holiday allowance on that wage, the claimed commission and the variable bonus. Based on 20 of 23 working days in the relevant period, this amounts to an amount of 20/23 x € 3,297.00 x 1.08 = € 3,096.31 gross in salary, 20/23 x € 4,110.00 = € 3,573, 91 gross due to commission and 20/23 x 1/12 x

€ 3,739.15 = € 270.95 gross due to variable bonus, or together € 6,941.17 gross. A net amount of € 4,220.46 will be deducted from this, which [name of applicant] received after submitting the petition. Because the net equivalent of the gross credit does not appear to differ substantially from the amount received, the statutory increase claimed is moderated to nil.

4.3.

Chetu Inc. will also be ordered to pay the wages including holiday allowance for 23 accrued vacation days not taken, as well as to pay the holiday allowance until 1 August 2022.

4.4.

Before assessing the other requests, it is established that the statement referred to at 2.1 above, signed by [name of applicant] on September 1, 2019, has no meaning now that its content, in particular the possibility for Chetu Inc. to terminate the employment contract at any time it wishes, without prior notice or notice, mutual consent or dissolution by the court, is contrary to Dutch labor law.

4.5.

It is further established that [name of applicant] submitted the application in good time, as it was received within two months and, insofar as the application relates to the transition payment, within three months after the date on which the employment contract was terminated (cf. Article 7). :686a paragraph 4, parts a and b BW).

4.6.

With regard to the requested fair compensation, it is considered that it follows from Article 7:681(1)(a) of the Dutch Civil Code that the Subdistrict Court may grant fair compensation at the employee's request if the employer has terminated the employment contract in violation of Article 7:671 of the Dutch Civil Code. . In view of the legislative history, in the context of Article 7:681(1)(a) of the Dutch Civil Code, seriously culpable acts or omissions on the part of the employer are required for the granting of fair compensation, but in a case as referred to in that article, the serious culpability if the employer has not complied with the regulations applicable to a legally valid dismissal and has given notice in violation of article 7:671 of the Dutch Civil Code (see: Parliamentary Papers I, 2013-2014, 33 818, no. C, pp. 99 and 113). A summary dismissal that is not considered to be legally valid is therefore already seriously culpable as such, because then notice of termination is given in violation of Section 7:671 of the Dutch Civil Code.

4.7.

In the opinion of the Subdistrict Court, the summary dismissal granted is not legally valid. According to article 7:677 paragraph 1 of the Dutch Civil Code, three requirements are set for a legally valid instant dismissal. There must be an urgent reason, on that basis the dismissal must be without delay and that reason must be communicated to the employee in a timely and sufficiently clear manner. In her August 26, 2022 email, Chetu Inc. referred to as urgent reason(s) for dismissal as 'refusal to work' and 'insubordination'.

In that very brief email, Chetu Inc. no explanation has been given on the nature and seriousness of the behavior of [name of applicant] and at the time when those behaviors allegedly occurred, which in its view underlie the stated urgent reason(s). As a result, the notification of the dismissal does not meet the condition that that reason has been made sufficiently clear to [name of applicant]. Insofar as this defect does not already provide grounds for ruling that the dismissal is not legally valid, the termination by Chetu Inc. given reason(s) the following.

It is not apparent from the e-mail correspondence exchanged between the parties that [name of applicant] brought into the proceedings that [name of applicant] refused at any time to perform the assigned activities. The alleged refusal to work therefore does not constitute an urgent reason for the dismissal granted.

Furthermore, [name of applicant] repeated objection to having his computer's camera switched on throughout the day may be regarded as disobedient or recalcitrant behaviour, at least as stubbornly refusing to comply with reasonable orders or orders from the employer within the meaning of Article 7:678 paragraph 2, under j of the Dutch Civil Code, and [name of applicant] objection is evidently by Chetu Inc. considered as such, but in the opinion of the subdistrict court there was no question of a reasonable instruction that [name of applicant] had to comply with.

Strict conditions are attached to observing employees. In its judgment of 28 November 2017, the European Court of Human Rights considered: “(…) that video surveillance of an employee in the workplace, be it covert or not, must be considered as a considerable intrusion into the employee's private life (…), and hence [the court] considers that it constitutes an interference within the meaning of Article 8 [Convention for the Protection of Human Rights and Fundamental Freedoms]. Any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which that provision refers and is necessary in a democratic society in order to achieve any such aim” (ECLI :CE:ECHR:2017:1128JUD007083813, § 55).

Although the fundamental right included in Article 8 ECHR only has effect in the relationship between a state and its citizens, under certain circumstances the employee can also invoke this fundamental right in a private-law employment relationship, for example when the state does not sufficiently protect this fundamental right. (compare, inter alia, the judgment of the ECtHR of 5 September 2017, ECLI:CE:ECHR:2017:0905JUD006149608, § 110). That is the case in this case. In one of her responses to [applicant's name] objections that he would feel uncomfortable leaving his camera on all day, Chetu Inc. that it was no different than if [name of applicant] was physically seen by everyone in an office environment. If it is assumed that [name of applicant] could only be observed during working hours and that no recordings would be made of him that would be stored or otherwise used in any way, there is no processing of data within the meaning of Article 4 , preamble and under 2 of Regulation (EU) 2016/679, on which regulation the General Data Protection Regulation (AVG) Implementation Act is based and which does offer a certain degree of protection to the employee. Since there is no such protection in the case of merely observing the employee, it is considered that the lawfulness of this observation of [name of applicant] can be tested directly against Article 8 ECHR. That test leads to the conclusion that Chetu Inc. The requirement of [name of applicant] to leave his camera on is contrary to his right to respect for his private life, without there being any justifiable ground for this. There is thus no question of refusing to comply with a reasonable order or instruction by [name of applicant], so that there is no urgent reason for the instant dismissal either.

4.8.

Now that it has been established that the instant dismissal is not legally valid, [name of applicant]'s request to grant him fair compensation can be granted. [name of applicant] is entitled to a fair compensation of € 50,000.00 gross. Chetu Inc. has acted seriously culpably by immediately dismissing him without a valid and urgent reason being based, according to [name of applicant] .

4.9.

It is considered that when determining the amount of the fair compensation, the sub-district court must take into account all (exceptional) circumstances of the case and that compensation must be in line with that (cf. the judgment of the Supreme Court of 30 June 2017, ECLI:NL :HR:2017:1187 (New Hairstyle)). Ultimately, the point is that the employee is compensated for the seriously culpable act or omission of the employer. The consequences of the dismissal can also be taken into account, insofar as those consequences can be attributed to the accusation that can be made against the employer. The fair compensation has no punitive purpose, but the fair compensation can also prevent employers from choosing to terminate an employment contract in a seriously culpable manner.

4.10.

[name of applicant] has argued that as a result of the dismissal he is now without income. Once he receives unemployment benefits, it will be much less than the income he received from Chetu Inc. enjoyed. That was more than € 70,000.00 per year. The basic salary for an equivalent position is approximately € 30,000.00. Moreover, the employment would certainly have lasted several more years. It functioned well and on July 11, 2022, Chetu Inc. promised that he could be promoted in two years. Assuming this, by Chetu Inc. the uncontested loss of income by [name of applicant], the subdistrict court deems the requested amount to be fair, so that it will be awarded.

4.11.

The compensation claimed for irregular termination will also be awarded. Pursuant to Section 7:672(10) of the Dutch Civil Code, the employer owes this compensation to the employee, because notice of termination was given on an earlier day than that applicable between the parties. The compensation is equal to the amount of the wages determined in money over the period that the employment contract should have continued in the event of regular termination. With a notice period of one month, according to [name of applicant], this concerns the salary plus the commission for the period from 26 August 2022 to 1 October 2022. That is

(3/23 x (€3,297.00 + €4,110.00) =) €966.13 plus (€3,297.00 + €4,110.00) =) €7,407.00, or €8,373.13 gross.

4.12.

[name of applicant] also requested that Chetu Inc. to be ordered to pay a transition payment. It follows from Article 7:673(1)(a) of the Dutch Civil Code that the employee is entitled to a transition payment if the employment contract has been terminated due to termination by the employer. That is the case here. Article 7:673 paragraph 2 of the Dutch Civil Code determines the manner in which the compensation is calculated. In accordance with the calculation submitted by [name of applicant], the transition payment amounts to € 9,501.47. This amount will be allocated.

4.13.

On the claim of [name of applicant] Chetu Inc. be ordered to pay the statutory interest on all amounts to be allocated, in the manner as set out below in the decision.

4.14.

Chetu Inc. will also have to provide [name of applicant] with the salary slip for the month of August 2022. Since it had not yet done so until the oral hearing of the request, it will be sentenced to do so. Contrary to the wishes of [name of applicant], the penalty to be attached to this conviction will be set at no more than € 50.00 for each day after the service of this order that Chetu Inc. fails to issue that salary slip, up to a maximum of €3,000.00.

4.15.

[name of applicant] has also requested that the non-competition clause be annulled, or at least partially annulled by limiting the duration and the region for which the clause is valid, and setting the fine at nil, or at least mitigating it. With regard to these claims, it is first established that the stipulation in article 6 of the 'Confidentiality and Non-competition Agreement' applicable to the employment contract, part of which is quoted at 2.1 above, is a stipulation as referred to in article 7:653 paragraph 1 Civil Code, which restricts [name of applicant] in his authority to work in a certain way after the end of the employment contract. The subdistrict court can annul this clause in whole or in part on the basis of the provisions of Article 7:653 paragraph 3, opening words and under b of the Dutch Civil Code. Although the employment contract has ended as a result of seriously culpable acts by Chetu Inc. it already follows that it cannot derive any rights from that clause (Article 7:653 paragraph 4 of the Dutch Civil Code) it is conceivable that [name of applicant] nevertheless wants the clause to be (entirely) annulled. The grounds put forward by [name of applicant] for this have been provided by Chetu Inc. not contradicted and the subdistrict court judge does not appear to be unlawful or unfounded. The clause will therefore be annulled. As a result, [name of applicant] claim to mitigate the fine set out in Article 24 of the Confidentiality and Non-competition Agreement for violation of the clause cannot be discussed.

4.16.

In view of the outcome of the proceedings, the costs thereof will be borne by Chetu Inc. She will then be ordered to pay those costs.

5 The decision

The subdistrict court judge:

5.1.

condemns Chetu Inc. to pay [name of applicant] an amount of €6,941.17 gross minus €4,220.46 net, as well as the statutory interest on the balance of those amounts, with regard to the wage plus the holiday allowance thereon, commission and variable bonus, to be calculated from September 1, 2022 until the day of full payment;

5.2.

condemns Chetu Inc. payment to [name of applicant] of the wages for 23 accrued vacation days not taken, plus the statutory interest thereon from

September 1, 2022 until the day of full satisfaction;

5.3.

condemns Chetu Inc. to pay [name of applicant] of the unpaid holiday allowance reserved until 1 August 2022, plus the statutory interest on it from 1 August 2022 until the day of full payment;

5.4.

condemns Chetu Inc. to pay [name of applicant] fair compensation of

€50,000, to be increased by the statutory interest on this from September 28, 2022 until the day of full payment;

5.5.

condemns Chetu Inc. to pay [name of applicant] the compensation for irregular termination of € 8,373.13, plus the statutory interest on this from September 28, 2022 until the day of full payment;

5.6.

condemns Chetu Inc. to pay [name of applicant] a transition payment of

€9,501.47, plus the statutory interest on this from September 28, 2022 until the day of full payment;

5.7.

condemns Chetu Inc. to provide [name of applicant] with the salary slip relating to the month of August 2022 within 14 days after this decision has been served on it, on pain of forfeiting a penalty of € 50.00 for each day that Chetu Inc. fails to do so, with a maximum of € 3,000;

5.8.

nullifies the stipulation in article 6 of the 'Confidentiality and Non-competition Agreement' applicable to the employment contract;

5.9.

condemns Chetu Inc. to pay the costs of the proceedings, on the part of [name of applicant] up to and including today set at € 584.00, consisting of:

court fee € 86,00

attorney's salary € 498.00;

5.10.

declares this decision provisionally enforceable to the extent;

5.11.

rejects the more or otherwise requested.

This decision was given by mr. Rouwen and was pronounced in open court on September 28, 2022, in the presence of the clerk of the court.