What was the case?
Employee, 21 years old, has been employed by Albert Heijn B.V. since 13 July 2015, most recently as a sales assistant. On 12 November 2020, without paying, employee took two bottles of cola from the store and consumed one of them in the canteen. The other bottle was for a colleague. As a result, the next day the employee was invited for a meeting with the supermarket manager and his assistant. The employee subsequently drew up a handwritten statement. This statement states that at the end of her shift, the employee took a Coke bottle because her supervisor still had an unused meal allowance that allowed the bottle to be taken and that she did not charge anything else nor does she know whether her supervisor did so. There was no intention to take the bottle without paying or debiting, the statement said. After the interview, employee was suspended and on November 16, 2020, Albert Heijn summarily fired employee. Employee requested that the instant dismissal be set aside.
The Subdistrict Court ruled as follows.
By her actions, the employee had violated various house rules of Albert Heijn. However, it was not assumed that this constituted theft. It is assumed that the employee was sloppy that evening, or at least forgot to sign out the products correctly. As regards the breach of a number of house rules, in respect of which Albert Heijn stated that these had been more strictly enforced since mid-2020 due to a cultural shift that had been implemented, the employee argued that many rules were not taken too seriously by the personnel.
She also submitted various (partly anonymous) statements from employees about this. She also pointed out that she was not aware of a cultural shift. It is true that there are (new) posters in the staff rooms, but they do not contain all the rules that the employee is alleged to have violated, and the tightening of the policy was not explained to her personally either, according to the employee. The latter is indeed not evident from the e-mail exchanges with team leaders submitted by Albert Heijn, and it has neither been argued nor shown that a change of culture was mentioned in staff meetings in which the employee participated. Precisely because in the branch in question the rules are or were handled loose and, for example, it was customary to use each other’s meal allowance to consume something from the store, it would have been obvious that Albert Heijn would first have called the employee to account for violating (some of) these rules. It has neither been argued nor shown that this happened. It is evident that Albert Heijn has a justifiable interest in the enforcement and correct application of its house rules.
But with a cultural change it is also important that some awareness is first created among the employees on the shop floor. A transition period, during which employees are addressed and reminded of their violations of the rules without this leading directly to sanctions under employment law, is appropriate in such a case. All in all, the Subdistrict Court ruled that immediate dismissal for openly violating a number of house rules, of which it can be established that, in any event in the preceding period, enforcement left much to be desired in the branch in question and where the employee had moreover already been employed for six years, was considered to be an excessively severe sanction.
A warning would have sufficed. The dismissal was annulled.
Questions dismissal or urgent dismissal on the spot or written warnings and employment court cases please contact Eva Jongepier, lawyer at Fennek.