A Managing Director employed by Pentagon International B.V. lit a joint at the end of a Teams meeting without realizing that his camera was still on. The Managing Director’s supervisor called him shortly after the Teams meeting to confront him about the incident. The Managing Director admitted that it was indeed a joint. The following day, the Managing Director was interviewed and subsequently dismissed with immediate effect. This dismissal was immediately confirmed in writing after the conversation.
The Managing Director primarily requested the subdistrict court to annul the dismissal with immediate effect, order reinstatement, and require payment of overdue salary. Alternatively, he requested the court to order Pentagon to pay a transition payment, fair compensation and fixed damages. The Managing Director also requested the court to nullify the non-compete and non-solicitation clauses. The subdistrict court rejected the requests and ruled that the dismissal was based on an urgent reason, which, in short, consisted of lighting a joint during a Teams meeting in violation of the zero-tolerance policy. The subdistrict court also considered that the employment contract was terminated without delay and that the urgent reason was communicated to the Managing Director without delay.
The Managing Director appealed, arguing that (i) the dismissal was not given without delay, (ii) the zero-tolerance policy was not clearly communicated, (iii) his personal circumstances were insufficiently taken into account, and (iv) the dismissal with immediate effect was disproportionate.
The Amsterdam Court of Appeal agreed with the subdistrict court and ruled that the dismissal with immediate effect of the Managing Director was lawful:
(i) The dismissal occurred the day after the incident, but this was justified as the supervisor confronted the Managing Director immediately after the incident and internal consultation and legal advice was necessary. The court deemed this approach careful and sufficiently prompt.
(ii) The zero-tolerance policy was included in the personnel regulations, which were incorporated in the employment contract. Moreover, the Managing Director had an exemplary function and was expected to ensure compliance with Pentagon’s (zero-tolerance) policy.
(iii) Despite losing the eligibility for unemployment benefits due to the dismissal with immediate effect, the Managing Director had sufficient means to support himself, as he was already employed by a new employer. Furthermore, it was neither asserted nor proven that the Managing Director used cannabis on medical advice or had consulted the company doctor. According to the court, the fact that the neck pain complaints were alleviated by cannabis use did not justify breaching the zero-tolerance policy.
(iv) The zero-tolerance policy allows Pentagon to determine an appropriate sanction in the case of a violation. The court held that Pentagon was not required to settle for a lesser sanction and that dismissal with immediate effect was a proportionate measure in this case, particularly given the role model function of the Managing Director.