Summary dismissal of a salaried employee may only take place if the employee has materially breached his obligations under the employment.
When assessing whether the employee's late appearance constitutes a material breach, the length of the late appearance, whether the delay was excusable, whether the employer was informed about the delay, how important the delay was in relation to the employer's matters, and in particular whether the employee was late before, including whether he was duly and reasonably warned about the consequences of being late again.
The case concerned a deputy head of a supermarket, who had been late on several occasions. In this connection, he had received several oral and written warnings pointing out the time when the employee was to start working.
In January and February 2013, the employee received written warnings specifying that if he was late again, this would have consequences for the employment by way of summary dismissal.
On 5 March 2013, the employee was dismissed summarily because he was seven minutes late.
The court's grounds
When assessing whether the employee's late appearance on 5 March 2013 was to be considered material, the court found that he had been late on several occasions, that his late appearance on this particular day was not - along with the previous delays - due to unpredictable or excusable circumstances, and that the employer had emphasised that he would not accept late appearance, and that he would be dismissed summarily if being late again.
The court further attached importance to the fact that the agreed time to appear at work at 6:45 had been fixed taking the supermarket's opening hours into consideration, and that a number of important routines were to be performed in these 15 minutes before the supermarket opened. In consideration of the employees' safety and sense of security, the employer had also laid down guidelines that minimum two employees had to be present in the supermarket, as it had previously been subjected to a robbery.
Taking into account that the employee had been late on several occasions, that his repeated disregard of the time when he had to start working was important to the supermarket's operation, that he was employed as sales manager and deputy head, that the delay was not excusable, and that he had been duly and reasonably warned that a continued disregard of the requirement to meet on time would result in summary dismissal, the court found that his late appearance on 5 March 2013 - notwithstanding the fact that he was only seven minutes late - constituted a material breach justifying summary dismissal of the employee.
This ruling determines that even minor violations may justify summary dismissal when the employer has emphasised by way of written warnings that certain conduct is undesired.
Horten represented the employer.
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