Attempted theft can lead to dismissal for serious reasons
March 2022 – Dismissal for serious reasons is an important decision. It follows a misconduct by the employee that ruins the trust placed in him by the employer and leads to the termination of the employment relationship without notice or compensation. No proportionality is required between the extent of the damage on the one hand and the financial consequences of the dismissal on the other.
Example from practice
Ms "A" is dismissed in February 2017. She was given three months and thirteen weeks' notice. But in the course of March, things go wrong and "A" is dismissed with immediate effect for attempted theft. Camera footage shows 'A' taking money out of the till at various times and putting it in a drawer. "A" takes 340 euros out of the cash register. At the end of her working day, "A" counts her till, without any other person being present, and then hands the till over to another employee (a newcomer) and tells him that there are no errors in the till, which is not the case. "A" also makes several private phone calls, which is expressly prohibited.
Not a theft
"A" gives her view of the facts before the court of first instance. "A" says that she only realised afterwards that the money was still in the drawer. She knew that she was being filmed. And she did not take the money with her. So there can be no question of theft.
In the end, the court decided that a dismissal for serious reasons was not correct in this case. The employer could not prove that 'A' had intended to steal. The facts found were not serious enough to justify a dismissal for serious reasons. The employer was ordered to pay damages, interest for late payment and procedural compensation. The employer disagrees and appeals against this decision.
But a clear fraud
The facts were again presented to the court. On this occasion, it was pointed out that it was not usual for money to be taken out of the till and put in the drawer (one of Mrs "A"'s arguments before the court). But when the amount in the drawer becomes too high, the money has to be put in the safe. Other staff members confirm that it is common for money to be transferred only when the amount in the drawer reaches 500 euros. But this is certainly not the employer's instructions.
What is more, when transferring her till, "A" said that there was no mistake, which was not correct.
And she had counted the till without the employee who was to take it over being present.
The Court concluded that although Mrs. "A" did not take the money with her, there was indeed a clear case of fraud.
By her attitude, 'A' gave the impression that she was committing a theft. The court found that this was sufficient to conclude that the employer's trust was ruined, so that the employer could rightly decide to terminate the collaboration immediately and definitively.
Breach of trust
This judgment is important because in reality the first judge put himself in the shoes of the employee by judging that there was a disproportion between the fault committed and the dismissal. 340 in the drawer, but she immediately lost her job (the damages were around)
In doing so, the first judge added a test to the law, that of proportionality, which he is not allowed to do. The Court decides that the judge is only allowed to examine whether the employer had a reason to find that there was a sufficiently important breach of trust to terminate the collaboration.
This was indeed the case in this instance and Ms. "A" was therefore rightly dismissed without any notice period or compensation.
