Court: Company allowed to fire manager who had sex with subordinate’s wife
A Tilburg company was allowed to fire its commercial director for having an affair with a subordinate’s wife and arranging to have sex with her during work time. The company does not have to pay the man severance or a transition allowance, the Zeeland West-Brabant District Court said in a ruling earlier this month, which it published on Tuesday.
The 61-year-old man had worked at the company since 1985. As a commercial director, he earned 11,750 euros gross per month, excluding holiday pay and bonuses. In February, an account manager filed a complaint against the director for having an affair with his wife.
According to the account manager, the commercial director had a months-long sexual affair with his wife, who was a receptionist at one of the company’s customers. He proved this with Whatsapp messages, photos, and videos - many of which had a sexual nature. These messages showed that the commercial director often texted the woman during work time and arranged to meet her for sexual encounters multiple times during work hours.
The account manager took sick leave after he found out about the affair and his wife asked him for a divorce. The commercial director told him in a text message to get back to work, or he would not give him permanent employment.
The company investigated the account manager’s complaint, also speaking to the commercial director, and decided to terminate his employment. According to the company, the man acted culpably by meeting the woman for sex during working hours, making and sending sexually explicit photos and videos during working hours - both at his office and with customers - and abusing his position of power by threatening not to give the account manager a permanent contract.
The director argued that he could not be fired over the affair because it was a personal matter. He said the text messages used against him were illegally obtained, and that his meeting with the woman and the messages he sent her did not affect his work performance. He was allowed to organize his working hours flexibly, he said, adding that he always worked more than the required hours.
The man demanded his job back or a lump sum of 2.5 million euros, a transition allowance, compensation of 10,000 euros, and the payment of his 2022 bonus. He also demanded that the messages between him and the woman be deleted.
The court ruled in the company’s favor. The court allowed the WhatsApp messages as evidence because they were relevant to finding the truth.
The WhatsApp messages showed that the affair played off in work time and cannot be considered solely a private matter, as the director claimed. In a period of nine days, the director and the woman exchanged 1,261 messages. A comparison with his work agenda showed that many of these messages happened during regular working hours, including times when the man was explicitly expected to be working. The messages also showed that the man arranged about five sexual encounters with the woman during working hours.
The court recognized that employers must allow some leeway for employees to arrange private matters during working hours. “However, this concerns, for example, short contact with the daycare center or making an appointment with a GP or dentist, not the extensive maintenance of an (online) sexual affair.”
“In principle, an affair is a private matter,” the court said. “But the director himself has turned this into a business matter by entering into the affair with the wife of a subordinate, bringing the affair within the scope of his work, and making use of a mobile phone made available to him by his employer.” The court also ruled that he abused his position of power by threatening not to give the account manager a permanent contract.
The court ruled that the company could dismiss the commercial director without paying him severance, a transition allowance, or compensation. The man also has to pay back a thousand euros in unjustly paid salary for the working time he spent maintaining his affair.
