The Luxembourg Court of Appeal answered these questions in a recent case. In this case, an employee caused an accident while moving a 15-tonne forklift tractor to retrieve his 3-tonne forklift. The employee had neither the training nor the authorisation to drive the larger forklift. Following the accident, the employer dismissed the employee with immediate effect.

The employment tribunal ruled that the dismissal was unfair, noting that the employee had six years’ seniority and had never received a warning. The employer then appealed, insisting that it had an obligation to ensure the health and safety of its employees in the workplace. According to the employer, a single incident can justify immediate dismissal if it is serious. In this case, it pointed to the manoeuvring risks associated with such equipment. The employer therefore maintained its position, including a claim for reimbursement for the damage caused to a third party’s service vehicle.

The employee, for his part, argued that the accident was not a serious fault and that it was the result of a risky company policy. He claimed that drivers were often encouraged to use machines without the necessary training, and that this practice was known and encouraged by management.

This was not enough to convince the Court of Appeal.

The Court of Appeal confirmed that a single wrongful act can justify immediate dismissal if it is sufficiently serious. The Court of Appeal reiterated that judges must assess the facts on a case-by-case basis, taking into account the employee’s seniority, disciplinary record, the employer’s instructions, the social situation and the consequences of the dismissal.

In this case, the Court of Appeal found that the employee had committed a serious error by failing to comply with safety instructions, causing significant and potentially serious damage.

It also pointed out that the facts complained of were not contested by the employee. To the contrary, the employee’s letter of protest confirmed the employer’s interpretation: ‘As all my colleagues were absent, my impatience got the better of me and I took the liberty of moving the 15-tonne tractor (…) I knew that I didn’t have a licence and that under no circumstances should I touch this machine. I simply wanted to get the job done quickly’.

In this ruling, the Court of Appeal also pointed out that the employer generally bears the risks generated by the company’s activities. Under the Labour Code, an employee is only liable for damage caused to the employer if he or she has committed an intentional fault, a gross fault or gross negligence.

In this particular case, the accident was not intentional. The employee was therefore not ordered to reimburse the damage caused to a third-party company’s vehicle.

The outcome of this dispute might have been different if the employee had been able to prove that the accident was the result of a risky company policy that encouraged drivers to use machines for which they did not have adequate training. Such a policy would be contrary to the employer’s obligation to ensure the health and safety of employees in all work-related aspects, which the employee argued, but did not prove, in this case.

While each case must be assessed on its own facts, this case demonstrates that a sufficiently serious single act of misconduct can warrant dismissal. In addition, the ruling highlights the importance for employers of laying down health and safety rules and ensuring that all employees comply with them, in order to ensure the health and safety of all. If employees fail to comply with these rules, it is the employer’s responsibility to take all necessary measures, up to and including disciplinary action in certain cases.

*Castegnaro