Chatting during working time can result in serious breach of duty for the official. This breach of duty can lead to dismissal. This is apparent from the ruling of the subdistrict court in Leeuwarden below.

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Rechtbank LEEUWARDEN Sector administrative law procedural numbers: Awb 06/2138 & 07/348 judgment of 8 November 2007 of the multiple court pursuant to Article 8:70 of the General Administrative Law Act (Awb) concerning the proceedings between [the claimant], residing in Leeuwarden, claimant, agent: Mr A. Atema, lawyer in Leeuwarden, and the Minister of Finance, Defendant: Mr B.E. Lamberti, working at the defendant’s Ministry. By letter of 1 September 2006, the defendant informed the plaintiff of his decision on the objection concerning suspension and (partial) retention of remuneration under the General Government Staff Regulations (ARAR). By letter of 20 September 2006, the defendant informed the applicant of his decision on the objection concerning dismissal as a disciplinary sentence under the ARAR. The plaintiff appealed against both decisions. The appeals were heard at the hearing of the Court, Multiple Chamber, held on 16 October 2007. The plaintiff appeared with the authorised representative. On behalf of the defendant appeared the above-mentioned representative and [name]. Eiser has been employed by
the defendant as an employee of the administration/team Opsporing Noord Oost Groningen 2 at the Belastingdienst/FIOD-ECD unit. On 7 March 2006, the applicant’s manager received a complaint or notification about the claimant. Following this, an investigation was initiated by the Team Leaders Opsporing Groningen, [name] and [name], concerning internet use (MSN/babble and/or chat box) during service by the plaintiff from the workplace and using a webcam. The results of the study are set out in two reports dated 15 and 16 March 2006. It reported, among other things, a telephone interview on 7 March 2006 with the person, a certain [name], who made the complaint about the plaintiff. This person has stated, among other things, that an employee of the FIOD, Groningen office, who works on Mondays to Thursdays, would harass his wife (and other women) through chat boxes with sexual statements and behaviors and using a webcam. In addition, those reports reported a workplace study on 8 March 2007, which found that a webcam was present there and that the chat program MSN was installed on the hard drive of the claimant’s computer. Various log files were also visible on the hard drive from which it was inferred that MSN was used during office hours. Those reports also state that, on 9 March 2006, the plaintiff’s manager, via his own private computer, found that the plaintiff had been logged into a chat site under a ‘nickname’ using the business equipment provided by the service. The interview that took place the same day with the plaintiff was also reported. Finally, a home visit to the plaintiff took place on 10 March 2006. In addition, the defendant carried out a digital investigation on the applicant’s computer. The interviews held with the plaintiff on 9 and 10 March 2006 were laid down on 7 November 2006 in a report drawn up on an oath of office or office. By letter of 11 April 2006, the defendant informed the plaintiff that, on the basis of the above, the presumption of breach of duty, consisting of unlawful use of assets made available by the service during working time for private activities, discredited the FIOD-ECD or took that risk and the plaintiff placed himself in a blackmailable position or took the risk to do so. The plaintiff gave an oral opinion on the alleged breach of duty on 26 April 2006 in the presence of his lawyer and on 30 May 2006 additional written response was received on behalf of the plaintiff. By letter of 12 July 2006, the applicant was informed of the intention to impose on him the disciplinary sentence of unconditional dismissal. It was stated that the plaintiff was guilty of a very serious breach of duty, which did not state or showed that he could not be imputed to this breach of duty. Furthermore, the defendant considers that the penalty is proportionate in view of the seriousness of the breach of duty. By letter dated also 12 July 2006, the plaintiff was informed of the defendant’s decision to suspend the claimant with (partially) withholding the remuneration for the time necessary to reach the dismissal decision. On behalf of the plaintiff, two separate objections of 24 July 2006 were lodged against the decisions of 12 July 2006. By letter of 31 July 2006, the plaintiff was given the opportunity by the defendant to be heard in response to the objection and also to explain the views orally regarding the intention to take a disciplinary measure. On 10 August 2006, it was informed on behalf of the applicant that he did not need to be heard in respect of the intentional decision. By fax dated 29 August 2006, the applicant stated that he would appreciate being heard. By decision of 1 September 2006, the defendant dismissed the appeal against the suspension imposed with (partially) withholding of remuneration. It was stated that the defendant had a sufficient basis for suspending the planned dismissal of sentences. With regard to the (partial) deduction of remuneration, it has been indicated that the distortion of the internal order is entirely attributable to the plaintiff and that there has not been any significant financial consequences that the interest of the tax authorities should give way to the claimant’s interest. By letter of 4 September 2006, the defendant informed the plaintiff of his decision to disciplinaryly punish the plaintiff with dismissal on the second day following the date of that decision for a very serious breach of duty. On behalf of the plaintiff, the dismissal decision was challenged by letter of 14 September 2006. The plaintiff was heard on 6 November 2006 following the objection to the dismissal decision and, by decision of 20 December 2006, the defendant subsequently dismissed the objection against that dismissal decision as unfounded. The defendant took the view that the plaintiff – having regard to the frequency and manner in which – unauthorised (for private purposes) used assets. In that context, the defendant referred to legislation and policies in force within its department. Furthermore, it has been stated that the applicant discredited or took the risk of discrediting the defendant as a result of his serious cross-standard conduct and that, as a result, he placed himself in a blackmailable position. The defendant has classified the plaintiff’s conduct as a very serious breach of duty, which is imputable to the claimant’s breach of duty. Furthermore, the defendant considers that the dismissal given is proportionate to the nature and gravity of the breach of duty committed. On appeal, the plaintiff claimed that he was wrongly not heard with regard to the suspension and retention decision. Furthermore, according to the plaintiff, no consideration was wrongly made with regard to the (financial) consequences of this decision for the claimant. Finally, the plaintiff stated that financial measures were wrongly taken before the intention decision became legally inviolable. As regards the dismissal decision, it has been appealed that the plaintiff is unable to adequately defend against an anonymous complaint. The plaintiff has denied to have behaved against the wife of [name]. Furthermore, the plaintiff indicated that the contacts with acquaintances were made via the computer and that these contacts could be classified as erotic. Now that the acquaintances were and this happened within the safe relational sphere, the plaintiff has not been placed in a blackmailable position. Furthermore, the applicant considers that the criminal dismissal given is disproportionate. In its defences, the defendant maintained his position. In the present case, it is necessary to assess whether the contested decisions are capable of maintaining legal standing. In that context, the Rechtbank will first assess the contested decision as regards the suspension and (partial) retention of remuneration and then the decision on the disciplinary dismissal. As regards the suspension and retention decision, it is first necessary to assess whether the defendant infringed the duty to hear as laid down in Article 7:2 of the Awb. It appeared that, by letter of 31 July 2006, the plaintiff had been given the opportunity to be heard on the basis of the objection lodged, at which an agreement had to be made before 14 August 2006 and also to explain his views orally regarding the intention to take a disciplinary measure. Subsequently, by letter of 10 August 2006, the defendant was informed, on behalf of the plaintiff, that the applicant did not need to be heard in respect of the ‘plan decision’ and was informed by fax of 29 August 2006 that he would appreciate being heard. In the opinion of the Rechtbank, it can be said that the plaintiff – assisted by a professional representative – has been unclear in his initial response to the invitation to be heard, by speaking of a ‘provisional decision’ on which he does not wish to be heard and by sending again a letter indicating, on behalf of the plaintiff, that he appreciates ‘to be heard’ after (the defendant’s time limit of) 14 August 2006 in respect of hearing. On the other hand, the Rechtbank considers that, after receipt of the letter of 10 August 2006, the defendant could not necessarily assume that the plaintiff (also) did not wish to be heard in relation to the suspension and retention decision, especially since the defendant’s letter of 31 July 2006 distinguishes between hearing in response to the ‘objection made’ and giving the opportunity to clarify the views on the intention to take a disciplinary measure. In view of this, and having regard to the fact that the letter of 29 August 2006 was received prior to the issue of the contested decision of 1 September 2006, the defendant should not, in the view of the Rechtbank, have refrained from hearing the plaintiff. That means that the action brought in that case is well founded under Regulation No 06/2138 and that the contested decision is eligible for annulment. However, since the plaintiff had every opportunity in appeal and appeal to raise his objections, the Rechtbank sees reason to examine whether the legal effects of the contested decision can be maintained in accordance with Article 8:72(3) of the Awb. In this respect, the following is considered. Under Article 91(1)(b) ARAR, an official may be suspended from office if he has been notified by the competent authority of the intention to punish him with unconditional dismissal or if that penalty has been imposed on him. Under Article 92(1) of the ARAR, during the suspension, one third of the remuneration may be withheld, while a further deduction may be made after the expiry of six weeks, including the full amount of remuneration. By decision of 12 July 2006, the applicant was informed of the intention to impose on him the disciplinary sentence of unconditional dismissal on account of serious breach of duty. In that case, according to settled case-law of the Centrale Raad van Beroep (inter alia TAR 1995/37), it is necessary to answer whether the defendant had a sufficient basis to arrive at the intention of such punishment. In order to answer that question, it is not decisive whether the grounds available are such that it can be based on the penalty with unconditional dismissal, but whether, from the defendant’s point of view, it can be given sufficient weight to arrive at the intention of that punishment. In the opinion of the court, the latter is the case. The documents at issue, including the reports of 15 and 16 March 2006, the report of 7 November 2006 drawn up on an oath and a promise of office, and the digital investigation carried out, show that the applicant used the computer and webcam in an unreasonable manner in the workplace. The investigation carried out by the defendant in this context showed that on the hard drive of the plaintiff’s computer the chat program MSN was installed, that the claimant MSN was always open, that he visited chat boxes and that he sometimes turned on or enabled the webcam. Furthermore, the applicant has acknowledged that the contacts he thus has relate to children, relationships, life and sex. In the light of that practice, taking into account, inter alia, that the applicant, as an employee of the FIOD/ECD, has access to sensitive and confidential information, the impact that that course of action may have on the integrity of the defendant’s organisation, given the nature of the internet contacts, and may put the plaintiff in a vulnerable position, it cannot be said that the defendant’s intention to punish with unconditional dismissal was not based on sufficient grounds. This means that the defendant has been able to decide to suspend the applicant in his office and to (partially) withhold the remuneration. The Rechtbank points out that – contrary to what has been argued on behalf of the plaintiff – the provisions of Article 91(1)(b) of the ARAR do not require that the ‘proposal decision’ must be legally inviolable. Furthermore, the court has not shown any evidence of facts or circumstances on the basis of which the conduct alleged against the plaintiff would not be imputable to him. The defendant was therefore able to decide to (partially) withholding of the claimant’s remuneration (partially) withholding of the claimant’s remuneration – even now that there has been no disproportionate financial consequences for the plaintiff. The pre-consideration therefore leads to the conclusion that the legal effects of the contested decision annulled can be maintained. The declaration of merits gives rise to the application of Article 8:75 of the Awb and to order the defendant to pay the costs. Under the Administrative Law Costs Decree, these costs amount to EUR 644,00 (submit a notice of appeal 1 point; appear at the hearing 1 point; weight of the case: average; value per point EUR 322,00). The State of the Netherlands must reimburse these costs to the plaintiff. Pursuant to Article 8:74(1) of the Awb, the defendant is required to reimburse him for the court fee of EUR 141,00 paid by the plaintiff. As regards the contested decision giving disciplinary notice to the applicant, the following is considered as follows. Under Article 80(1) of the ARAR, an official who fails to fulfil the obligations imposed on him or who, moreover, is guilty of default of duty, may be punished in a disciplinary manner. Article 80(2) of the ARAR provides that breach of duty includes both the violation of any rule and the act or omission of something which a good civil servant should fail or do in the same circumstances. Pursuant to Article 81(1) of the ARAR, dismissal is a disciplinary sentence which may be imposed. The court must first assess whether there is a breach of duty. With the defendant, the court is of the opinion that this is the case in the case of the plaintiff. As already stated above, it has been shown, on the basis of the documents in the case, that, by frequently logging in to chat and chat boxes in which there was often erotic contact, the plaintiff made use of the computer and webcam provided to him by the defendant in an unacceptable manner. The court considers that the reason for the investigation was an anonymous report, since this in itself does not affect the results of that investigation – which are established – and the defendant’s decisions are based on this. The plaintiff, for his part, is in no way obstructed in his defence against these results and the decisions based on them. Furthermore, the court considers that the plaintiff has been able to discredit his employer by his conduct and that he has thereby put himself in a vulnerable and possibly blackmailable position. In doing so, the court finds it important that the plaintiff, as an employee of the FIOD/ECD, had access to sensitive and confidential information and that any third party had the possibility to log in to the said site and could therefore come into contact with the plaintiff and his workplace. The fact that the contacts would have been limited to “the safe relational atmosphere” – which, by the way – the court considers in this light is not relevant. It has not been shown that the conduct described above could not be imputed to the plaintiff. Furthermore, in view of the policies in force for the use of PCNU-Workplace computers, the plaintiff could have been aware that the use of computers and webcam in the workplace, as evidenced by the investigation, is inadmissible. Moreover, the court considers that even without this course of action, the plaintiff should and may have been perfectly clear that such use of the computer and webcam is unacceptable. Finally, the Rechtbank considers that, in view of the nature of the breach of duty and the serious implications that such conduct could entail for the defendant’s organisation and plaintiffs’ position within it, this breach of duty can be classified as very serious. In that light, the disciplinary sentence imposed for unconditional dismissal cannot be regarded as disproportionate. The action under Regulation No 07/348 must therefore be rejected as unfounded. In this case, the court considers that there are no terms to pronounce a judgment on costs. The Court’s decision: — declares the action well founded under number 06/2138; — annuls that contested decision; — provides that the legal effects of that annulled decision shall be maintained; — orders the defendant to pay the plaintiff’s costs in the amount of EUR 644,00 by the State of the Netherlands; — provides that the State of the Netherlands must pay to the claimant the court fee of EUR 141,00 paid by the plaintiff; — dismisses the action under number 07/348 as unfounded. Thus given by Mr E.M. Visser, Chairman, and by Mr U. van Houten and E.C.R. Schut as judges, and pronounced in public on 8 November 2007 by Mr E.M. Visser in the presence of Mr P.R.M. Poiesz as Registrar w.g. P.R.M. Poiesz w.g. E.M. Visser, the appeal is open to the parties against this judgment. Equal competence belongs to other interested parties, subject to the provisions of Article 6:13 in conjunction with 6:24 Awb.

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