Most companies offer a remuneration package to their employees which not only contains the fixed monthly salary, but also benefits in kind, including a mobile phone, company car and internet subscription, which may also be used for private purposes within reasonable limits. However, employees may fail to use these benefits in good faith.
In a recent judgment of 12 May 2014, the Labour Court of Appeals of Ghent confirmed a judgment of the Labour Court of Ghent of 27 June 2013, which had ordered an employee to refund the costs for the abusive use of the mobile phone that she had received from her employer. This employee had, for more than 2,255 minutes per month, phoned so-called “astrology-lines” (a pay per call number) and the cost was approximately EUR 90 per day. The Labour Court of Appeals held that such abusive use of a mobile phone can be considered as fraud or at least as grave misconduct, meaning that the employee must be held liable for the resulting damage to the employer. Even though the employer in question had not put in place a policy regarding mobile phone use, the Court of Appeals based its decision on the legal obligation of the employee to perform the employment contract in good faith.
In this case, the abuse was obvious. However, in the majority of cases the misuse/abuse will not be that extensive and clear, so that it will be harder for the employer to prove an abuse/misuse of a benefit in kind. In addition, it is sometimes difficult to determine what should be considered as reasonable use.
In this respect, it should be kept in mind that the Labour Courts usually take into account the existence of employer instructions (or lack thereof) when determining whether or not an abuse has occurred (Labour Court of Appeals Ghent, 22 October 2001, J.T.T. 2002, 41) and whether the abuse could give rise to compensation or other consequences (e.g. refund of costs, loss of the benefit and even dismissal).
Therefore, it is recommended for the employer to establish a written policy setting out what should be considered as reasonable use, how and when the benefit in kind may be used, what is allowed, which sanction(s) will be applied if the policy is not complied with, etc. Such a policy will not only protect the interests of the employer, but will also create clarity for the employees.
