On October 18, the subdistrict court ruled that the university must pay EUR 20,135 for withdrawing the petition. This, however, didn’t end the matter: the university wants to take the case to court again, but without some of the initially submitted documents.

The associate professor disagrees, as he views those documents as part of the evidence, and the judge also recognized that they could still be used as such in upcoming cases. The first petition filed includes communication with the ombudsman.

The university isn’t commenting due to privacy concerns. On Friday, the spokesperson did indicate that TU/e “will indeed keep pursuing the dismissal; the revised petition was sent to the judge and the defendant today.” TU/e’s ombudsman, Anna Soedira, has also been asked for a response but isn’t able to comment on the matter at this stage.

Socially unsafe work situation

The employee’s attorney, Lennaert de Jong, informs us that this case is based on a socially unsafe work situation. But what’s the problem exactly? “My client was unfairly accused of dysfunction in October 2020,” says De Jong. “He resisted this accusation for years, and the university actually acknowledged to him that it was unjustified in November 2022. In January 2023, there was even a proposal for a solution, but unfortunately this led to nothing, and it was at that time that TU/e stated there was now a conflict because no solution had been found. In December 2023, the lawsuit was announced, in March the petition was filed, and so now there is this ruling.”

Role of Executive Board and Supervisory Board

“The Executive Board (CvB) and the Supervisory Board (RvT) of the university were involved in the discussions that my client had in order to reach a solution,” De Jong says. “He really tried everywhere, from the dean and the department board to the confidential counsellor, ombudsman, and ultimately the CvB and the RvT.”

“We’re disappointed in the way the Executive Board and the Supervisory Board have behaved in this matter and would have expected otherwise given how the rector (Silvia Lenaerts, ed.) on the Executive Board and Mariette Hamer on the Supervisory Board have been speaking out publicly about socially unsafe behavior. Both say you can come to them if you are confronted with social unsafety and that such reports should be taken seriously, which is supported by the Code for Good Governance. However, neither of them wanted to get involved. My client was sent back to the department board to find a solution, while that department board, in our opinion, is at the root of the problem.”

Withdrawal of petition

‘The basic principle is that a petition may be withdrawn as long as there is no ruling and that, in the event of withdrawal, an order for costs will only be decided on if requested (see Article 1.2.8. of the national rules of procedure for petitions by subdistrict courts). Further conditions for withdrawal aren’t set out in the law or the rules of procedure. Only in special cases of abuse of procedural (or other) law could there be a different outcome.’ This can be read in the ruling on whether or not the withdrawal of the petition by TU/e constituted an abuse of law, as claimed by the employee (the defendant).

‘We do not agree with the [defendant’s] position that withdrawal of the petition and/or TU/e’s procedural conduct should be considered as an abuse of law or a violation of due process. In principle, TU/e is free to withdraw its petition.’

In other words, the court doesn’t agree that TU/e committed an abuse of law. However, it is clear from the registrar’s communication that what the university attempted to do in this lawsuit – destroy a procedural document that turned out not to be to its liking and replace it with another – isn’t possible. An explanation is given in the colored text box.

Withdrawing the petition and starting the lawsuit over to try and achieve the same result is possible. However, the judge also makes it clear that any evidence that TU/e no longer brings into the new case may still serve as evidence if the associate professor decides to do so.

The judge then continues by stating that both parties are in charge of their own petition and defense and that omitting something doesn’t violate the duty of truth under Article 21 of the Dutch Code of Civil Procedure (Rv). ‘The duty of truth opposes the deliberate submission of untruths, but that does not detract from the responsibility of the parties to determine what facts they base the petition on.’

Ombuds communication

The decision shows that the initial petition filed by TU/e’s included communication with the ombudsman. This is what the university attempted to change by filing a new petition and destroying the old one, as evidenced by communications by the registry. Attorney De Jong: “However, the judge did not allow this."

Communication from the court clerk's office

‘The petitioner filed a petition with exhibits on March 14, 2024. The defendant filed a statement of defense on May 14, 2024 .
The petitioner filed a “replacement petition” on April 26, 2024, requesting that the March 14, 2024 petition with exhibits be destroyed.
The defendant did not receive the “replacement petition” dated April 26, 2024.
The defendant only became aware that the petitioner had filed a “replacement petition” on May 22, 2024.
The defendant filed a reasoned objection to this on May 22, 2024.
The defendant’s objection is well-founded.
Neither the law nor the rules of procedure provide for the possibility of withdrawing a procedural document already filed.

Article 283 Rv does not address that situation either; it takes an existing procedural document as its starting point, which is amended by a later procedural document.

Therefore, the petition with exhibits filed on March 14, 2024 remains in the case file.

Under Article 283 Rv/Article 1.2.7 of the rules of procedure, the petitioner is free to file a changed, extended, or improved petition.

In so doing, the petitioner must clearly and comprehensively set out the grounds on which it no longer bases its petition, or the facts or exhibits on which it no longer relies. If necessary, it should also clearly indicate the parts of the procedural document that have been changed.

The petitioner failed to do any of the above, thereby severely complicating the defendant’s case. This is not acceptable.’

The decision reveals that while the employee may be entitled to reintroduce the documents previously brought in by the university, he fears that he will be accused by the university of violating the confidentiality of the ombuds process: ‘In a new winding-up procedure, TU/e will (try to) accuse [the defendant] of violating the confidentiality of the ombuds process if he relies on statements and exhibits that TU/e intended to withdraw from this procedure.’

Duty of care

The University Council has also gotten wind of the lawsuit. On behalf of the council’s HR committee, Martijn Klabbers indicates that “the University Council sees well-being and the social safety of all members of our community as one of the four top priorities. When problems arise, they must be handled with due care and attention. An important role in ensuring this safety is played by our ombudsman, who must be able to work independently and impartially and must be protected whole doing so. This is essential to our university community.”

“The university has a duty of care to its students and staff and must avoid conflicts of interest. While the University Council does not comment on individual cases, we take our role as staff and student representatives seriously. We will closely and critically monitor how the matter develops.”

Hjalmar Mulders, chair of the department council of the Department of Applied Physics, informs us that “as a department council, we haven’t been informed of any lawsuit (or ruling) between TU/e and an associate professor at our department. We trust that the department board will inform us about this if and when it’s appropriate to do so.”

Solution

The employee continues to resist his dismissal, but isn’t hampered in the performance of his work in the meantime, says his attorney. “He has a fighting spirit and wants the socially unsafe work situation to be resolved. His departure, as TU/e demands, will not eliminate the social unsafety. On the contrary, it would confirm its very existence. I think it’s admirable for someone to continue working every day after four years of fighting. But he studied at TU/e, completed his PhD here, and also wants to retire here. As far as he’s concerned, there’s nothing that stands in his way of doing just that, as he doesn’t feel he has a conflict with the people he works with. He enjoys his work and wants to pass on his knowledge to future generations. All that needs to happen is for the socially unsafe work situation to be resolved.”

Social unsafety is a hot topic in today’s society, De Jong points out. “My client is loyal to his university and his work with students and has never sought publicity about the matter himself. But in the end it’s the university that brought it into the open by starting this lawsuit (rulings are public, ed.) and now the media is all over it.”