Transparency regarding work capacity: a hard lesson in summary dismissal

An employee falls on his knee while at work on October 9, 2024. He reports sick shortly thereafter (on October 16 and 17), continues working for a short time, but reports sick again on November 13, 2024, and remains unable to work thereafter. In the first months of 2025, the company doctor assesses him as fully unable to work for (reintegration) activities. So far, this appears to be a “classic” sick leave case with a reintegration process.

But then, in early June 2025, the employer hears something that changes the situation: the employee is said to have briefly performed operator work at another company during his sick leave on October 16 and 17, 2024. This is particularly sensitive because, although he was permitted by the employer to work as a self-employed contractor at other companies, reporting sick while simultaneously working elsewhere naturally raises questions. The employer engages an investigative agency to look into the employee’s activities during his incapacity for work.

In July 2025, the employee tells the employer that he is not getting better, that he must rest completely, that he is unable to meet in person, and that he cannot drive. However, the investigation report shows that he has driven on multiple occasions, carried a large shopping bag, and walked without any abnormal gait. The employer requests an explanation, announces immediate termination, and gives the employee the opportunity to respond (hearing both sides of the story). The employee is summarily dismissed.

The employee requests that the dismissal be overturned. He argues that he is genuinely ill, is undergoing treatment, and that an employer cannot determine his medical condition or whether he is ill based on an observation report. That determination is reserved for the company physician. It is only during the hearing that an explanation emerges: he claims he drove because his father had to go to the hospital and he needed to translate, and later because he had to go to BioZorg for an appointment related to his return-to-work program. He says he took painkillers and oxazepam for this. He also acknowledges that he worked for two days at another company, but that he did not know this was not permitted while on sick leave.

The subdistrict court upholds the summary dismissal. Not because the judge says the employee is not sick, but because the core issue here revolves around trust and honesty regarding work capacity. An employer must be able to rely on a (sick) employee to communicate openly and truthfully. The judge noted, among other things, that it is difficult to reconcile the fact that a home visit was “not possible” while driving and attending appointments were feasible, that no explanation was provided for the normal walking behavior that was observed, and that the use of heavy medication directly contradicts the claim that he was able to drive while taking it. Since no plausible explanation was provided, the employer was entitled to conclude that trust had been irreparably damaged.

And then there is the remarkable conclusion: despite the legally valid summary dismissal, the labor court judge nevertheless awards a transition payment. Normally, such compensation is not payable in the case of a justified summary dismissal, but here, due to the circumstances (still fully incapacitated for work, sole breadwinner, seven years of service, and no prior incidents), € 12,202.10 gross was nevertheless awarded pursuant to Article 7:673(8) of the Dutch Civil Code (with interest accruing fourteen days after the decision). 

This ruling demonstrates how quickly a disrupted relationship of trust during illness can escalate and how seriously the court views consistent, transparent communication regarding work capacity.

You can read the ruling here.