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Lets imagine there is a person called George that works for the dutch government to secure their ICT systems. The government body he worked for was not a secret agency or something like that. This George does this work for over 8 years. About 5 years ago, he made some sort of more or less innocent computer virus, that he might also spread.

This was all done during a holiday in another country. Now by some reason (unrelated to this computer virus or some similar event) he is fired by his boss. George became emotional, goes to a bar and drank too much alcohol. He became drunk and told someone in the bar that he got fired, while he actually has made (and possibly spread) a computer virus, which is (in this scenario, but probably also in reality) against his work-contract. However no one ever came to knew that. He became so mad, or emotional that he started to write that fact(the virus) as a small blogpost on his blog.

Now lets imagine that due to circumstances that next morning he more or less forgot about his blogpost(at least until the court meeting). His former employer, however came to know this post because he either likes reading that blog, or there was talked about in his government body.

George went to court because he finds his situation unfair(which it might or not might be). To him, he just wants to continue his job, so that is what his charge is about.

Now let's assume that his former employer knows about the post before he goes to the court-house. They all have to appear in court together. Would it make sense for George's boss to just talk about this blogpost, or not for he was fired for another reason? If this is the case, what are the most reasonable reasons not to disclose (the fact that he made a virus) to the judges?

This virus that George has made/spread had have was not targeted against nor had real big impact on his or other dutch government computer systems.

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No

If George is suing for unfair dismissal then the court case turns on if the reason(s) the employer used to terminate him was unfair.

It is irrelevant if there were legitimate reasons that did not inform the employer’s decision. Evidence of these should be excluded on that basis.

Whether George finds it unfair is also irrelevant - most people do find being sacked unfair. What matters is if it was unfair under Dutch law - like George was sacked because of his race.

The fact that the employer had legitimate but unused reasons for dismissal may convince the court, if the dismissal was actually unfair, that reinstatement is not an appropriate remedy and George should just receive compensation.

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I'm not familiar with the law of the Netherlands, but in the United States, we have the "after-acquired evidence" doctrine, which basically allows an employer to rely on information it learned after terminating an employee to limit its damages in a wrongful-termination suit.

For a more simple example, imagine that Company X fires Employee A because A is pregnant. If A files an employment discrimination lawsuit, she would likely be entitled to damages equal to several years of her salary.

But if the company learns a month later that A had also been stealing money from the company, it could rely on the after-acquired-evidence doctrine to say that even if she hadn't been pregnant, it would have fired her stealing once it learned that fact. In that case, A would be able to collect damages for the time between when she was fired and when X learned that she was stealing money, but nothing after that.

So if George's situation were unfolding in American courts, his employer would likely want to discuss the original reason for firing George and the virus. He would argue that the firing was justified for the original reason, so George isn't entitled to any damages. And he would follow up by saying that even if George shouldn't have been fired for the original reason, he should have been fired for the virus, so his damages should be limited to the period up to when the employer discovered it.

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Could it make sense to add a non-used reason for firing someone in court?

Yes, it could. That is because evidence that unexpectedly comes to surface during court proceedings could reinforce the employer's legal position insofar as the worker incurred breach of contract.

The fact that the virus the worker programmed and spread did not have a "real[ly] big impact" on government computer systems might not suffice for discarding materiality of worker's breach of contract. Accordingly, the employer may make a counterclaim of breach of contract and/or breach of the implied covenant of good faith, thereby possibly defeating the worker's claim of wrongful termination.

Note, though, two points:

  • the employer's counterclaim(s) might be barred by the statute of limitations; and
  • I am obviating --and unaware of-- the procedural requirements the employer would need to satisfy in order to advance the counterclaim of breach of contract and/or additional legal theories.

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