Rechtbank Noord-Holland, 12-03-2025, ECLI:NL:RBNHO:2025:2135, 11447296 \ AO VERZ 24-151

“With this letter we confirm the conversation you had with [betrokkene 1], HR Business Partner and [betrokkene 2], HR Director on 30 April 2024 and you hereby receive an official warning, as well as an instruction to complete a series of training sessions on discrimination, harassment and how to ensure a safe work environment. For privacy reasons, no specific names are mentioned in this letter.

Reason for the warning An investigation was initiated after receiving concrete indications that a potential unsafe or hostile work environment was present in the team you work in.

(...) As a company, we cannot tolerate the conduct that you have demonstrated – even if unintentional. As this is not the first time complaints regarding your behaviour have been raised, it has been determined that a formal corrective process needs to be initiated to reinforce the company’s expectations for employee conduct.

(...)

Mandatory training You will be required to complete a series of training sessions on discrimination / harassment / and a safe work environment. HR will share the exact details of what is expected with you in the form of a formal performance improvement process, and you will be required to attend the training sessions as scheduled. You are required to complete these trainings as soon as possible, but in any event no later than the end of July 2024. (...)”

“Your employee has been absent due to medically objective complaints caused by work-related factors, with appropriate interventions started. - Your employee has been absent due to a decrease in capacity resulting from disrupted work relationships. - Further progress depends on resolving the work relationship. - I recommend following the STECR procedure in its completeness. - After the work-related factors are resolved, it is again possible to talk about reintegration possibilities.

(...) I have understood from the parties that there have been (multiple) discussions about the issues, which have not led to a solution yet. But several more interventions are planned. So my advice is to continue this.”

“- Your employee is absent due to a non medical cause - The complaints appear to be (exclusively) related to the labor conflict (...) Follow up: - Further steps depend on resolving the labor dispute. - If the labor conflict is resolved and there are still existing complaints, please contact us for an appointment. - No medical objective assessment can be done as long as the conflict persists - There are no medical restrictions preventing the employee from engaging with the employer”

“(...) Now that the company doctor has concluded that there is no medical reason for your continued absence from work, we have hired a trainer that will work with you directly to discuss the issues behind the investigation’s findings and the warning the company issued to you as a result. This trainer will work with you in person in our Hoofddorp offices to start a coaching program. The trainer will be in our offices on Tuesday October 8 to meet with you and discuss your training program and your return to work.

Since the company doctor has confirmed that you are not absent for medical reasons, and the company’s instruction for you to follow this mandatory training to restore a normal working environment is reasonable under the circumstances, you are instructed to be present. Your refusal to participate will lead to disciplinary action. Your salary will be stopped (not paid) for the hours you continue to be absent without valid reason. Should you continue to refuse to return to work, the company will consider termination with immediate effect.”

“This letter serves as a final warning and instruction for you to comply with the instruction that you were given on 30 April 2024, that you should follow a (mandatory) training on personal conduct and creating a safe work environment. (...)

(...) On September 17, 2024, the medical professional evaluating you came to the conclusion that there was no medical restriction preventing you from engaging with us as your employer. Your lawyer has indicted that you may not agree with this conclusion. It is your right as employee to request a second opinion of you deem that the analysis is not correct, but since your lawyer also expressively made clear that you are able – medically speaking – to engage in in-person conversations with a third party (new mediator) present, we are sufficiently comfortable that you are medically able to follow basic training program as well.

You had been instructed again to follow the mandatory training on 8 October 2024. Despite the clear instruction and warning that wages would be stopped in case you did not appear, you decided not to attend the training. As a result of your behavior, the company has incurred expenditures for hiring and preparing the trainer that were avoidable.

The wage stop has now been issued to provide you with a strong incentive to cooperate in resolving this situation. Your lawyer will have explained to you that under the current circumstances – where there are no medical reasons for your absence – you are required to do everything that reasonably can be expected of you to resolve the current conflict. This includes a basic training.

(...)

Your continued refusals to date, combined with the harsh, yet clear, confirmations by your lawyer that you are not in any way willing to adhere to the reasonable instruction to follow the training – even in light of the wage stop, demonstrates that we have no other option than to give you this final warning. If you continue to refuse to adhere to the reasonable instruction to follow a basic training, now re-scheduled for Tuesday October 15, 2024, starting at 2 PM at our offices in Hoofddorp under the guidance of Digital Realty’s retained trainer, we will seek your dismissal with immediate effect.”