In its decision of 8 November 2021, the Zeeland-West-Brabant District Court, granted the request of the employer and dissolved the employment contract of a probation officer who, according to the court, had lost sight of the limits of proper communication. This case concerned an employee who became ill shortly after the start of an improvement plan. When the employee fell ill again after a period of reintegration, his attitude and behavior changed. For example, the employee made his dissatisfaction with the employer’s guidance and the improvement process public through statements on Facebook. He posted the following message, among other things: “But what if you, as a probation employee, become ill as a result of overload? Then you will be seen and treated as a criminal by supervisors and even the management. You are not functioning properly..(…)." The employee also posted a Facebook message with the text: "I have not lied a word. Yes, there are executives within the Dutch Probation Service who even commit criminal offenses. (...)." The employee refused to comply with the employer's request to remove the negative messages.
The court ruled that 'freedom of expression does not extend to an employee being allowed to make incorrect statements about his employer, at least to disclose unproven and insufficiently established facts, with the intention to damage the employer's reputation, or at least to accept the consequence that the reputation is damaged.’ If an employee believes that social abuses are taking place within the organisation of the employer, it is in the right place to report to the House for the Whistleblowers, instead of making statements on social media, the court said.
In April 2021, the Amsterdam Court of Appeal considered whether the employment contract with an employee of Greenpeace (a highly skilled migrant of Chinese descent) had been rightly dissolved by the court. The employee had made emotional, violent and aggressive statements on his private Facebook page (with 200 friends) aimed at using and condoning violence against demonstrators in Hong Kong (who were protesting China's policy towards Hong Kong) as well as targeting against eating insects in favor of health and the environment. According to Greenpeace, these statements violate the internal rules of conduct that enshrine the core values of the organization: protecting the environment and the pursuit of peace. Unlike Greenpeace, the employee believes that these core values should not permeate his personal life to the extent that it restricts his right to freedom of expression on social media.
The Amsterdam Court of Appeal considered that Greenpeace is an employer with a strong political, ideological and social vision. This means that the employee must take these core values into account, both within his work and outside of it. The court also took into account that at the time of posting of the messages it was visible that the employee was working for Greenpeace, so that he created the risk that Greenpeace would be associated with his statements. This can damage Greenpeace's reputation and also financial damage, the latter if donors withdraw. The court ruled that the statements of the employee are contrary to good employeeship and that the court had rightly terminated the employment contract.
For employers who want to take action against statements made by employees on social media, it is important to realize that not every unwelcome statement can lead to dismissal. Sometimes 'milder' sanctions will suffice. This is the case, for example, if it does not concern clearly inadmissible statements and it is not visible for which organization the employee works, so that the employer cannot be associated with the statements of the employee. This can also be the case if the employee – addressed by his employer – apologizes and deletes the message. Employers are advised to immediately request employees to remove unwelcome messages on social media. A social media code of conduct can help the employer to demonstrate that certain statements are considered undesirable within the company.
If you have any questions about this subject or if you need help drawing up a code of conduct, you can contact Van Bladel Advocaten via info@vanbladeladvocaten.nl or at (+31) 030-2203111.