Theft in the workplace due to gambling addiction: does this preclude immediate dismissal?

Can an employer summarily dismiss an employee who steals money to fund his gambling addiction? The Court of Appeals in ’s-Hertogenbosch addressed this question in a recently published ruling.

The case involved an employee who had been with the company for over 11 years and held a managerial position. Over the course of several months, he had taken at least €8,000 from his employer’s safe and cash register. He acted in a systematic manner and attempted to conceal the cash discrepancies. After the employer investigated the irregularities and confronted the employee with the findings, he was summarily dismissed.

The employee did not accept the dismissal. He argued that his actions stemmed from a gambling addiction and that, given the employer’s duty of care, the employer should first have referred him to the company physician.

The court did not agree with this argument. Although a gambling addiction can be classified as an illness, this does not automatically mean that the misappropriation of funds must be attributed to that illness or that the employee was unable to foresee the consequences of his actions. According to the court, the medical statements submitted and the statement from an addiction counselor also provided insufficient support for this position. In addition, the court took into account that the employee had acted in a calculated and systematic manner over an extended period. Nor did his personal circumstances, including his long tenure with the company and financial difficulties, outweigh the seriousness of his conduct and the resulting breach of trust. Furthermore, the court considered it significant that the employee had agreed to abide by the employer’s house rules and code of conduct. These stipulated, among other things, that any confirmed fraud would result in termination and that employees were expected to demonstrate integrity and honesty.

In addition, the court ruled that the employer had acted with sufficient promptness. The employer had needed a few days to review surveillance footage, consult with HR and a legal counsel, and give the employee the opportunity to present his side of the story. According to the court, this approach demonstrated due diligence, and the duration of the investigation did not detract from the promptness of the termination.

The summary dismissal was therefore upheld. In addition, because of his grossly negligent conduct, the employee was not entitled to a transition payment.

This ruling underscores that citing an addiction does not automatically preclude a legally valid summary dismissal. The assessment remains dependent on all the circumstances of the case. Not only do the nature and severity of the employee’s conduct play a role, but so do the diligence and promptness with which the employer acts.

Are you, as an employer, facing a potential urgent reason for termination, or are you unsure about the correct approach? Please feel free to contact us to discuss your options. 

You can read the ruling here.