Annejet Balm (47) is an employment lawyer. In the past two years, she assisted a client in a MeToo case. “It was uncomfortable stuff, but legally very interesting,” she says.
“In autumn 2021, client – director of a large company – came to my office. He told me that one of his managers had been accused of cross-border behaviour. Multiple reports had come in, from both women and men. The statements ranged from groping, sexual remarks and references to sex to shouting, swearing and disrespectful behaviour. The management had put him on suspension and, after HR’s investigation, it had been decided that the employment contract should be terminated. In the Netherlands, an employer cannot unilaterally terminate an employment contract. Only in case of an urgent reason is instant dismissal possible. In this case, that was a dead end, because instant dismissal must be effected immediately after the event. Here, two months had already passed after the first notification.
I contacted the other party’s lawyer. Could a settlement perhaps be reached with the manager? An amicable settlement is always preferable: after all, litigation is time-consuming and expensive, especially if there is also an appeal. To cover all those risks, I tried to reach amicable agreements on the termination of the employment contract between my client and the manager in question. I offered to enter into a neat agreement so that the manager could apply for unemployment benefit and more or less leave the company with his head held high.
Unfortunately, I got zero response. The other party’s lawyer considered our offer too low and demanded rehabilitation. The employer had to declare that nothing was wrong and that the suspension had been unjustified. My client peremptorily did not want that. In late December 2021, I therefore petitioned the court to dissolve the employment contract. Primarily because of seriously culpable behaviour, alternatively because of a disrupted working relationship. In a written response to the petition, the manager denied and proved everything. In turn, he submitted statements from colleagues declaring what a nice guy he was.
The hearing in March 2022 was uncomfortable and painful. The manager had brought his wife and other family members. Probably a deliberate choice, to show that he had nothing to hide. The manager laboriously answered the judge’s questions about his sexually transgressive actions. He denied everything, but could not really refute the long laundry list of allegations very well either. Such cases are difficult to prove. A total of 10 people had made incriminating statements, but those events in themselves were hard to verify. In almost all cases, no other people were present. Fortunately, the judge proved us right on all counts. He found the manager’s behaviour seriously culpable and dissolved the employment contract with immediate effect. The manager was also not given severance pay. Good news for us, of course. However, the manager appealed.
At the court, the manager’s entire family was again present. It was now mid-2022 and it was just as painful as the first time. However, the Court found that my client had not handled the investigation into the manager’s conduct properly. Not that such investigations should necessarily be conducted by an external party, the Court added, but in this case it should have been done more carefully. The next step in the proceedings was quite unusual. Indeed, often proceedings on the dissolution of an employment contract are short and sweet. In this case, however, the court said: ‘There are a lot of statements and if all of these are true then I think it is very serious, but the employer has to prove this further by hearing witnesses.’ All employees who had made a written statement had to come to the court to repeat their statement under oath. The added value was that the court itself could ask questions of these people, check their credibility, and the manager’s lawyer could also ask questions and defend himself that way. It was very intimidating for the witnesses to come to the court to give testimony again and, in the presence of the manager, answer questions. Also because a year and a half had now passed and the incidents had taken place even longer ago.
Our witnesses stated exactly what they had stated earlier. The manager also interviewed a number of witnesses. They stated what he was like in the workplace and as a colleague, but also partly refuted the statements of our witnesses by disputing certain aspects and circumstances of the statement. That get-together was not on Thursday but on Friday, for instance, it was said. And: the toilet is not on the ground floor but the first floor, so it cannot have happened. In this way, they tried to attack the credibility of our witnesses. During these interrogations, there were again many relatives of the manager present. That too is not usual. Again, the manager clearly wanted to show: this is my network, I have nothing to hide and I stand by my story. I thought it was pretty clever.
Witnesses were heard for a total of six days. Then both sides were allowed to draw their conclusions in a written trial document. As the employer’s lawyer, I naturally indicated that we had been very successful in our evidence. That my client had demonstrated with these witnesses that the manager had actually been guilty of cross-border conduct and that we were upholding everything we had said earlier. On the contrary, the other party believed that his witness examination showed that the other party’s statements were not credible and that there was too much ambiguity. The manager asked the court to rule that the allegations were unjustified and demanded damages of eight tonnes. The court ultimately ruled that the manager’s dismissal was justified. It follows from the ruling that the Court found the witness statements “credible and convincing” and that there was no reason to doubt the truthfulness or accuracy of these statements. The manager had therefore acted culpably. However, as the court found that the employer had also failed in its handling of the complaints, the manager was awarded the statutory transitional compensation. His request for damages was rejected.
While my client was obviously pleased with the confirmation that the manager’s behaviour was unacceptable and he was therefore rightly dismissed, the payment of severance pay did leave a bitter aftertaste. What is particularly important, however, is that the employees involved who gave a statement were heard and believed.”
