Thursday, April 26, 2018

Employment is terminated due to refusal to transfer

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Outline of case: the employee refuses to be employed by another business unit. The proposal by the employer was fair in light of the circumstances of the case. The importance of the employer to transfer the worker outweighs the interest of the worker.

Case
An employee has been employed since January 1, 1989 when the predecessor of SDU Uitgevers BV (SDU) acted as the acquirer for the ad group Automation. Since July 1, 2007, the employee performs the function of account manager in the construction business unit. This consists mainly of recruiting of advertisers.

In 2008, the employee has an affective relationship with a colleague. This colleague was also employed at the business unit Construction of SDU. As of September 1, 2008, the male colleague joined Kluwer, which is a competitor of SDU. By letter dated September 12, 2008, SDU has informed the employee that the move from her colleague to Kluwer and her relationship with him are sufficient reason to question her work in the Construction Unit. She was then offered a transfer to the Business Information unit of SDU. The reason for the transfer is to protect business interests. The employee is transferred so she is not working within the customer base of the Construction business unit. The personal relationship that this employee had with her ex-colleague is too risky in connection with intertwined interests.

Court of first instance ruling

The employee refuses employment with another business unit of SDU. On December 24, 2008 the employee requests the District Court to rescind the contract. The District Court awarded the employee severance payment in the amount of 17,500 Euros. This is in contrast to the amount of 103.123 Euros that she has claimed. The employee therefore appeals the verdict.  

Court of Appeal

The Court of Appeal considers whether SDU was authorized to instruct the employee to continue her work at another business unit. Suggested that while It should be considered whether SDU possessed the discretion to transfer the employee to another job position. The Court believes that the employer does not contain this authority, based upon the instructional competence rules resulting from Article 7:660 Civil Code. The case is appealed with the Supreme Court.

The Supreme Court has determined that the employer and employee are required to behave as a good employer and a good employee towards each other. Regarding the employee this means that he must deal with reasonable proposals of the employer relating to changing circumstances at work. In general, the employee should react positive on this, he may only reject such proposals, if this cannot be expected from him in all reason. It should be examined whether the employer’s proposal is reasonable. The Supreme Court referred the case back to the Court of Appeal.

The Court of Appeal held that the proposal of SDU is reasonable. The importance of SDU in the transfer of the worker outweighs the interest of the worker. The Court considers that the employment relationship between the SDU and the worker might become pressurized because of conflicts of interest and loyalty. It is important for the SDU that the commercial business unit should be allowed to develop strategic plans freely without the risk that these plans could be released to its direct competitor. According to the Court, these are important interests. The employee believes that she has no tie to the business unit at all. The Court considers that this interest weighs less than the interests of SDU. The offer of the employer to transfer the employee was therefore reasonable.

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