No due process, no valid dismissal
It started as an ordinary night shift for a PostNL driver. Picking up packages at the distribution center, sealing the trailer, and heading to the next location. But upon arrival, several packages had been broken open. Five mobile phones and a hard drive were missing.
PostNL’s security department examined the camera footage and discovered unusual behavior. The footage showed that the driver had stood in the trailer for approximately four minutes during loading – without turning on the light. The driver’s explanations were unconvincing. He said he was taking it easy, waiting until he could continue loading, or picking up fallen boxes. But why not turn on the light? The employer pointed directly at the driver: he had been the only one with access to the cargo. On 27 July 2023, he was summarily dismissed.
The Court of Appeal’s judgment: compelling evidence
The employee challenged the dismissal before the subdistrict court and won. PostNL appealed (ECLI:NL:GHSHE:2024:2884). The ‘s-Hertogenbosch Court of Appeal reconstructed what had happened and reached a clear conclusion: the entire loading and unloading process had been filmed from all angles. No one other than the driver had access to the packages and the footage did not show anyone else handling the cargo. The Court of Appeal ruled that the only possible conclusion was that the driver had opened the boxes and taken the contents.
This is where the procedural problem begins. The camera footage was crucial evidence, but the employee’s lawyer simply could not open the files beforehand. The files were encrypted and required special software that is not standard on computers. Attempts to view the footage failed, despite instructions from PostNL and even a USB stick delivered by courier.
During the hearing before the Court of Appeal, the footage was played by an IT employee, while the employee’s lawyer saw its contents for the first time. The Court of Appeal had viewed the footage in full beforehand. The lawyer objected: he had not had the opportunity to identify exculpatory passages or to prepare.
A fair trial takes precedence
The driver appealed to the Supreme Court – and won (ECLI:NL:HR:2026:409). This is where the legal crux of the case lies. The right to a fair trial is enshrined in Article 6 of the European Convention on Human Rights (ECHR). An essential component of this right is the principle of equality of arms: both parties must have an equal opportunity to present their case. In the Netherlands, this principle is also anchored in Article 19 of the Dutch Code of Civil Procedure, which safeguards the right to be heard.
The Supreme Court ruled that the Court of Appeal had violated these fundamental rights. The Court of Appeal had been aware that, due to the encryption, the employee’s lawyer had not succeeded in viewing the footage. Therefore the principles of the right to be heard and equality of arms were violated. The employee was only confronted with the footage at the hearing. He was therefore unprepared and because had not had the opportunity to identify exculpatory passages in the footage beforehand. The Court of Appeal should have disregarded the camera footage in its decision or alternatively should have given the employee the opportunity to review the footage with his lawyer and respond to it. For example, by adjourning the hearing or by allowing the employee to respond in writing after the hearing.
The driver therefore prevailed. Not because it has been established that he is innocent, but because he did not receive a fair trial. The Supreme Court set aside the judgment and referred the case to the Arnhem-Leeuwarden Court of Appeal for a new hearing.
Conclusion
A fair trial is not a formality, but the cornerstone of our legal system. Evidence may appear compelling, but if the opposing party is not given the opportunity to mount a proper defence, a dismissal can still be overturned.
Do you have questions about summary dismissal, evidence, or any other employment law matter? Please feel free to contact me. Together, we will ensure that your case is properly substantiated – whether you are on the employer’s or the employee’s side.