Supreme Court: dismissed employee has to prove that damage is probable when claiming damages for a lost opportunity

A contractual employee of the administration of a municipality was accused of aggressive behaviour. The municipality organised a hearing in order to investigate the accusations. However, the employee did not turn up to the hearing as he claimed to be ill. Instead of postponing the hearing, the municipality immediately dismissed the employee with a severance payment. The employee brought several claims before the court, including a claim to damages due to a lost opportunity. In fact, the employee was already applying for a new position with another administration. He started his new job not even a month after his dismissal. However, according to the employee, the dismissal has robbed him of the choice whether or not to accept the new position.

The Labour Court of Appeal ruled that the "loss of an opportunity to keep a job" is different from the damage of dismissal, which is covered by severance pay. For lost opportunity claims, the claimant must show the damage is real and not hypothetical. In this case, the claimant argued that, without the dismissal, he could have chosen to stay in his job instead of accepting a new role as Director General in another municipality. However, the court found no evidence that he genuinely intended to stay and deemed this option speculative. As a result, the court dismissed the claim, and the claimant has appealed this decision in cassation.

The Supreme Court has held that where the damage consists of the loss of an opportunity to obtain an expected benefit, the damage is certain if the loss is causally linked to the fault with a probable benefit. The person claiming compensation for such damage must prove that the lost benefit was probable. Accordingly, the Supreme Court ruled that no compensation could be awarded. The Labour Court correctly ruled that the plaintiff's claim was unfounded. The appeal is dismissed.

The view of the Supreme Court can be applauded, as another interpretation would have led to employees abusing such hypothetical claims in order to receive additional damages.  In any case, even if the employee could have successfully proven that he probably would have stayed instead of accepting the new position, he would still have had to prove that this damage is not the same to the one covered by the severance payment. What else is the damage here, than the fact that the employee has lost his job?