Finland: The Inappropriate Behavior Of The Employee As Grounds For Termination Of Employment – Two Recent Court Cases

Introduction

The Supreme Court and the Labor Court of Finland recently issued judgments concerning an employee's inappropriate behavior as grounds for terminating the employment. The issue before the Labor Court in the first case was whether an employer had grounds to cancel the employment of a bus driver who had taken money from the ticket fare collection bag. In the second case, the Supreme Court considered whether an employer had the right to cancel the employment of a purser who had stolen some of the employer's goods.

Right to cancel

The first case, Labor Court's decision TT:2012-135, concerned an employee who had worked as a bus driver for the bus company Veolia Transport Vantaa Oy (Veolia) since 18.5.2009. On 2.3.2010, after change money went missing, Veolia cancelled the driver's employment. Veolia had clear written and oral instructions as to how and where to keep the change money. The drivers were allowed to keep change money only in a money bag or the cupboard for bags. According to the instructions, the drivers were supposed to account for the money at least every seventh day. The driver knew these instructions.

One morning after having problems with the ticket machine, the driver went to see a supervisor who asked him to account for the ticket money and give it to another employee. When the driver handed over the money, 85 EUR—all the change money—was missing. The money could not be found anywhere. In situations where money had gone missing in the past, the employer had very strict policy and cancelled employments immediately. In this case too, the employee's employment was cancelled when the money could not be found. During the years 2009-2011, Veolia had cancelled the employments of 12 drivers due to missing money.

Veolia claimed that the missing money was not the only reason for the cancellation. The driver had received a lot of negative feedback during his brief period of employment. He had also been given a warning for using the bus without authorization during his break.

A few days after termination of his employment, the driver claimed that he had found the missing 85 EUR in his pocket. However, Veolia did not find the driver's story to be believable because he had presented the 85 EUR in all bills, whereas change money always includes coins.

The Labor Court ruled that Veolia had grounds to cancel the driver's employment. In acting as described above, the driver had violated the trust between the employer and the employee so seriously that the employer had the grounds to cancel the employment. Veolia had not acted against the collective agreement (which included the grounds for terminating employments) by cancelling the driver's employment contract even though the driver had not received a warning regarding the money and the missing amount of money had been relatively small.

The Labor Court based its decision among other things on following factors. First, the employer had in place rules specifying where its employees should keep change money that were clear and unambiguous. Second, in the past, when an employee broke those rules by losing money and being unable to explain its whereabouts, the employer had reacted by cancelling that employee's employment. Moreover, a person handling his or her employer's money is in a position of extra trust. On these grounds, the Court held, the employer had the right to cancel the driver's employment without any notice period.

Right to dismiss

The second case, Supreme Court case KKO 2012:89, concerned a 58 year old employee who had worked for the airline Finnair Oyj (Finnair) for thirty years. He had worked in different positions. Most recently, he was a purser, a supervisor for the other cabin personnel. His employment was cancelled on 18.4.2008, one day after customs officers discovered alcohol and cigarettes in his possession, which he had not declared and had taken from the work place without permission.

Finnair had given clear rules to cabin personnel that they were not to take any food or drinks that were intended for customer service—not even opened bottles. The employees were also required to declare all alcohol and tobacco products brought from outside the EU in their personal customs declaration book. Previously, when cabin personnel were caught taking food, alcohol or cigarettes from the plane or failing to declare products brought from outside EU, Finnair had not terminated their employments but had given them a warning and barred them from working in a supervisory position for six months.

On 17.4.2008, after arriving in Helsinki on a flight from Singapore, the purser was taken aside for a routine customs inspection. The customs officers discovered 23 boxes of cigarettes, 2,8 liters of wine and 0,2 liter of alcohol in his possession. The purser had stolen the items and failed to declare them. The following day, Finnair cancelled the purser's employment. According to the notice given, the purser had stolen Finnair's belongings and acted against the regulations by not declaring the products. Finnair stated that through his dishonest behavior, the purser had acted against the employment and legal obligations.

The Supreme Court ruled that Finnair had no grounds to cancel the purser's employment. Instead, the purser should have been dismissed without a separate warning. A warning had been given to the purser more than one year before, but the Court stated that according to Finnair's company policy that warning had already expired when the employee was caught. Thus, it could not be taken into account.

In the past, Finnair employees had only received warnings after engaging in similar behavior. While Finnish law requires equal treatment among employees, Finnair still had the right to tighten enforcement of its policy and to dismiss the purser without giving him a warning. The Supreme Court stated that the purser's behavior was so egregious that Finnair had the right to dismiss him. It went on, however, to note that the purser's behavior neither affected Finnair's main business nor impeded the performance of the purser's main tasks. Moreover, the purser's dishonesty caused only minor economic damage to the company. Therefore, there was no ground for cancelling his employment. Finnair was ordered to pay the notice period salary to the purser.

Conclusion

The two cases discussed above share many similarities. In both cases, the employers' instructions or rules were clearly broken and the employers' belongs were stolen. In both cases, the monetary value of the stolen items was relatively low and the dishonest behavior neither cased harm to the employer's business nor influenced the performance of the employee's main tasks. However, in the latter case, the employee had worked for the employer for thirty years, whereas, in the former, the employee had been employed for less than one year. In addition, the policies regarding termination of employment were different. The policy of the bus company was clear that employment would be cancelled if money went missing. Finnair's policy, however, was unclear about what the repercussions would be if an employee was found taking the employer's belongings; and, in the past, only warnings had been given.

Apparently, an employer's clear and unambiguous policy regarding termination of employment is taken into account when determining grounds for terminating employment. Yet, based on these rulings, it seems that the line between dismissing and cancelling the employment is not clear.

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