Rechtbank Rotterdam, 05-11-2020, ECLI:NL:RBROT:2020:10796, 8747729

Partijen hebben een arbeidsovereenkomst gesloten op grond waarvan [persoon A] vanaf

1 december 2019 fulltime is gaan werken in die functie bij [bedrijf B] voor de duur van een jaar. In de in de Engelse taal opgestelde arbeidsovereenkomst zijn - verkort weergegeven - de volgende bedingen opgenomen: een geheimhoudingsbeding (artikel 15), een verbod op het zonder toestemming verrichten van nevenwerkzaamheden (artikel 16), een non-concurrentiebeding (artikel 18) en een relatiebeding (artikel 19). Tevens is bepaald dat [persoon A] bij overtreding van deze bedingen een onmiddellijk te betalen boete van € 450,- verschuldigd wordt voor iedere dag dat de overtreding voortduurt (artikel 20). Ook is in de arbeidsovereenkomst een tussentijds beëindigingsbeding opgenomen (artikel 4).

Bij e-mailbericht van 29 juni 2020 heeft [persoon A] - verkort weergegeven - het volgende aan

[persoon C] van [bedrijf B] geschreven:

“(...) I am writing to you because I am concerned that I have not received my correct pay.

As you know, I am employed by [bedrijf B] . as Compliance Officer on a full time basis since 01-December-2019. According to my Employment Agreement (...) my gross salary is agreed as EUR 4.500 per month,which amounts to EUR 3.049- net salary per month (excluding holîday allowance)

I have not been given my payslips so far nor have I been properly informed how to access this information. Upon checking my bank account, based on my calculation, the underpaid salary ammounts to EUR 5.094.

I have also not received my salary for June 2020, which should be net EUR 3.049.

(...)

I wish to be paid the outstanding money owed to me (EUR 8.143) within 5 working days of this letter.”

“(...)On June 29, 2020 I received a letter from you that you would not have received your wage from June. The next day I asked [persoon D] for an explanation and [persoon D] then told me a few things about what was said in Turkey and what had happened. I am very shocked by this.

You have been in Turkey for a long time and it appears that you are no longer working for us, but for [bedrijf E] (...) in Turkey. This violates a number of terms of the employment contract.

I would like to hear your side of the story and invite you for a personal conversation at my office on July 7, 2020 at 10:00 AM. (...)”

“(...) On the 1st of July 2020, I sent you a letter inviting you for a personal meeting at my office on July 7th at 10:00. You have not showed up, nor have I received any other response from you.

I hereby give you one more opportunity to respond in writing to the fact that you no longer perform any work for us, but that you perform work for [bedrijf E] (...) in Turkey. As you understand, this violates a number of terms of your employment contract.

I would like to receive a response to the above no later than 24 hours after sending this letter.(...)”

Bij e-mailbericht van 7 juli 2020 heeft [persoon A] - verkort weergegeven - het volgende aan

[persoon C] van [bedrijf B] geschreven (met twee cc’s naar e-mailadressen bij De Nederlandse Bank):

“(...)Please accept this letter as formal notification that I am resigning from my position as Compliance Officer with [bedrijf B] .

With reference to my letter sent to you, dated 29/06/202, I raised my concerns about being underpaid, seeked your response to my claims and also notified you to remedy this within 5 working days.

Despite my notification, I have not received a response from your part, nor have I received my payslips or my salary and underpaid amounts. (...)

Such failure to fullfil your contractual obligations consitute a breach of contract.

Based upon the foregoing (...) I hereby resign from my position as Compliance Officer and terminate the the Employment Agreement (...) immediately.”

Bij e-mailbericht van 8 juli 2020 heeft [persoon A] - verkort weergegeven - het volgende aan

[persoon C] van [bedrijf B] geschreven:

“(...)As you know, I have been in Turkey since 29-February-2020. The reason for my travel was to support the Project Team in Istanbul who were developing a new Application (PorterSystem ) to be used in our company. (...) My task was planned to be completed by April-2020, until the launch of the new Application. Our colleagues, Mr. [persoon D] and Ms. [persoon F] were also involved in this process, we have worked together in Istanbul.

However, due to COVID-19 Pandemie, travel restrictions and lockdown measures imposed by the governments prevent me to come back to the Netherlands. (...)

In the meantime, we have been communîcating via e-mail and MS Teams application. (...)

I also have not received your invitation letter, dated 1 July, which you mention in your mail. 1 wonder by which means you sent it? If it is sent by post to my address in NL, I

believe it was a mistake, since you know that I am in Turkey and I cannot receive such letter. I have not received any e-mail from you so far, regarding this subject. (...)”

“(...) On the 1st of July 2020, I invited you for a personal meeting at my office on July 7, 2020 at 10:00. You have not appeared. Nor have I been able to receive a response in any other way, despite another written request. In the conversation I wanted to discuss the following with you.

(...)

In response to your letter of 29 June 2020, I had a fîrm conversation with [persoon D] , which showed that your wages had indeed not been paid to you. Here the following emerged.

When the corona measures were relaxed, [persoon D] , returned to Istanbul on 12 June 2020. He found you working at [bedrijf E] (...). You handed him a stack of documents that made it cleor that you are no longer working for us, but for [bedrijf E] . You have been appointed legal advisor / compliance officer for [bedrijf E] where you assist [bedrijf E] agoinst a file to [bedrijf B] . This is not at all in line with what we have ogreed in the employment contract and for which you signed at the time.

I then looked at the extent to which you have still performed your work in recent months. And to my great surprise, you have not performed any work for us since April 17, 2020. You have not fulfilled your agreements in accordance with the employment contract. You do no work, and therefore no work, no wages. In my opinion, the wages that we paid for the months of April and May 2020 were paid to you unduly.

Given your actions as mentioned above, this is not honest, but outright deception. This entails integrity risks. You have seriously shamed my confidence by making me believe that you worked for [bedrijf B] . from Turkey, but in the meantime you have only worked for [bedrijf E] . As a Compliance Officer, you are responsible for all confidential transactions in which you check unusual transactions or assess new and existing customers. You have not done this in recent months and this can lead to enormous damages for us.

You do not perform your work, but you also breach the confidentiality clause (Article 15), the ancillary activities clause (Article 16), the non-competition clouse (Article 18), as well as the relationship clause (Article 19).

I wanted to hear about the above. In view of the above behaviour, I can no longer continue the employment contract for urgent reasons.

(...)

I have weighed up your personal circumstances, such as the consequences of the dismissal for you, against the nature and seriousness of the urgent reasons. That consideration led to the conclusion that an immediate termination of employment is justified.

The post-contractual terms of the employment contract - which you have violated - are subject to a fine, which I will claim from you legally.

Finally, I have received a cancellation letter from you. In any case, we agree that the employment contract should end. Insofar as you dispute the instant dismissal, I confirm that I have received cancellation immediately. This also makes you liable for damage, because you do not observe the notice period.

We will deduct the salary still due to you from what we have to claim from you.(...)”

Bij e-mailbericht van 13 juli 2020 heeft [persoon A] - verkort weergegeven - het volgende aan

[persoon C] van [bedrijf B] geschreven (met twee cc’s naar e-mailadressen bij De Nederlandse Bank):

“(...) I regret to inform you that all of your allegations in your letter, regarding my integrity and trustworthiness, are based on merely hearsay. I neither accept them nor take them seriously. I expect you to prove your allegations regarding my character or my actions which you consider as "breach of contract", at a court of law. I also suggest

you, that you should have material evidence in your hand and made necessary investigation before making such accusations.

It is also surprising for me that you have raised such unfounded and unrealistic allegations, only to avoid to pay my wages that I am legally entitled to claim.

(...)

You claim that, I work for [bedrijf E] , which you deem as a competitor. 1 should remind

you that your husband Mr. [persoon D] has been working as the General Manager of [bedrijf E] . Your internal auditor Ms. [persoon F] is still working as international relations manager at [bedrijf E] . I do not work for [bedrijf E] . I have only used their Istanbul Office, during my time in Istanbul. Because, [bedrijf E] (...) and [bedrijf B] . were at a brink of a merger and acquisation (...).”

“By this letter, [bedrijf B] ., represented by Ms [persoon C] , CEO, makes clear that [bedrijf B] . has settled the damage that you owe to [bedrijf B] .

This damage that [bedrijf B] . has on you was caused by the fact that you resigned immediately on the 7th of July. You had no urgent reason for this. In addition, insofar as required, you were immediately fired on 9 July. Under Article 7:677 (2) and (3) BW, this concerns damage equal to the amount of the wages determined in money over the period that the employment contract should have continued on regular notice, therefore 1 September 2020. I have already referred to this in my writing of July 9th.

We have deducted this damage from the outstanding wages up to 7 July, as well as the vacation days and the pro rata vacation pay. Since the damage is more than the amount to be paid by [bedrijf B] ., no further payment is made from [bedrijf B] . in the context of a final settlement of your employment contract.

About your persistent violation of the post-contractual obligations, I can tell you that we’re handing over the case to bring the violation to an end and to recover the fines and damages. You will receive a separate writing about this.”