By Attorney at Law Suhendra Leon. This email address is being protected from spambots. You need JavaScript enabled to view it.
The idea to write about this topic came to me a couple months back, while reading an article about an employee named Dennis that was immediately dismissed for urgent reasons by Action, a discount store in the Netherlands. Dennis was dismissed for taking a bag to carry items he had purchased at this store. The bag was normally sold for 3 eurocents to clients.
Professional curiosity prompted me to look for the court’s decision in this case. Because the bag had no monetary value (the 3 cents were only charged for environmental purposes) and the consequences of the immediate dismissal for Dennis, the court ruled that the immediate dismissal was unjust.
The above is an example of what labour lawyers call in Dutch bagatel-delict. A bagatel-delict is conduct of an employee that can be categorised as fraud, stealing or embezzlement of low value goods or a small amount of money. Examples in the case law are the taking of an expired yoghurt drink and leftover salmon salad served at the employee-BBQ by a supermarket employee, eating peanuts from an open package a client abandoned, the taking of written-off articles by a department store employee, the taking of a Red Bull can, and putting a 50 eurocent coin in a pocket by a restaurant employee. In all these cases, the courts ruled that the immediate dismissal for urgent reasons were just.
Above are Dutch examples, but this case law is also applicable in Sint Maarten. In my experience, employers on the island do not tolerate stealing, but their policies do not go as far as the Dutch employers in the abovementioned cases.
For the employers reading this article, do not take the article as an invitation to start dismissing employees for trivial offences. First, the employer needs to have a clear and written zero-tolerance policy in place.
This zero-tolerance policy needs to be enforced by reminding employees regularly about the policy and acting upon the policy when necessary. A common mistake employers make is having a vague written policy and trying to enforce that.
An example is using employee discounts for third parties. If this is undesirable for the company, state this in the employee discount policy and also state what the consequences are if an employee is caught doing this.
Another example is the employer not wanting employees to take any expired or written-off products because it can lead to stealing. Specify in your policy that you consider taking expired and written of products as stealing. Further, the application of the zero-tolerance policy cannot be applied arbitrarily. The employer needs to be consequent with the enforcement of the policy.
When dismissing an employee based on the policy, the employer needs to weigh the interest of the employee (tenure, age, labour market, position, and consequences of the immediate dismissal for the employee) and necessity of a strict enforcement of the policy.
In some circumstances a lesser disciplinary measure must suffice. Further, the employer needs to have an explanation for why this policy is necessary in the company. These strict policies tend to be implemented in the retail and hospitality industries, as these industries are sensitive for theft by employees.
Dismissal for urgent reasons has a big impact on the life of an employee. So, one can ask why it is necessary to apply such harsh measures in these trivial cases. The two most relevant arguments are prevention and trust. If it’s obvious for employees that a behaviour will not be tolerated, they will refrain from such behaviour. If an employee cannot be trusted to not take a small item or amounts, can he be trusted at all?
To conclude on a personal note. I did grow up with the notion that if I lived at my parents’ house, I had to adhere to their house rules. If I did not want to adhere to their rules, I had to move out. In my opinion the same is applicable to workplaces. So, as an employee it is important to take note of the policies of your company and adhere to these policies. If you do not want to do that, it is advisable to look for another place of employment.
