The Netherlands: Doing nothing doesn’t pay, even during Carnival

Recently, the Court of Appeal in Den Bosch ruled on a case involving an employee’s claim for wages three years after she had stopped being called up for work. According to the court, the employee had deliberately neglected her duties and had shown no willingness to do her job. For that reason, she was not entitled to wages, despite the fact that the employer had been unclear about the continuation of the employment relationship.

What was the case about?

In February 2013, the employee spoke to her manager about whether or not to continue working during Carnival. Her employer did not call on her to work, and so she was able to join the Carnival celebrations. She heard nothing from the employer after that. In July 2015, the pension fund informed the employee that her membership had ended in early 2015. In February 2016, the employee informed her employer that her employment contract had still not ended and she was therefore entitled to continued payment of wages.

In response, the employer told the employee that she was dismissed shortly before the Carnival in 2013 and that from that moment forth she was no longer entitled to wages.

The employee took the matter to court, claiming that she was entitled to continued payment of salary from February 2013 onwards. She limited her claim for wages to January 2015, because from then onwards she was no longer available to work for the employer.

Sub-District Court

The Sub-District Court judge held that the employee was a party to an on-call contract, that the employment relationship had not ended, and that the employer should therefore have kept calling on the employee to work. Since the employer failed to do so, the employee was entitled to claim wages based on the average hours she had worked over the last six months of 2012. The wage claim was therefore awarded; the employer appealed the decision.

Court of Appeal

The employer argued that the contract was a permanent employment contract and not an on-call contract, as the Sub-District Court had ruled. The Sub-District Court had ignored the assertion of both parties that the contract had in the meantime become a permanent employment contract. The Court of Appeal agreed with the employer that that the lower court should not have ignored the employer’s defense that the employee’s work stoppage in February 2013 was reason enough to disqualify her from entitlement to wages.

According to the Court of Appeal, the Sub-District Court judge had “stepped outside the boundaries of the legal dispute.” The lower court judge had based his opinion on an assumption not shared by either of the parties themselves. The Court of Appeal determined that the Sub-District Court judge should not have interpreted the contract himself since the parties agreed that the employment contract was for an indefinite period.

Right to wages?

Since the employment contract was for an indefinite period of time, and since the employee had no longer worked since February 2013, the question was whether she was still entitled to wages.

Given that the employer had told the employee that she (at least for the time being) did not have to come to work, nor did she, the Court of Appeal ruled that the non-performance of work was at the employer’s direction. The employer had created uncertainty about the further course of the employment relationship by not clearly stating that it (may) have wanted the employee to leave employment by way of terminating the contract, regardless of whether it was a legal termination or not.

This raised the question of how to assess the employee’s attitude in this light. According to the Court of Appeal, she failed to get in touch with the employer after the Carnival incident in 2013, did not show up at work any longer, and never claimed any wages, even though she herself assumed that she was on a permanent employment contract. By failing to take action for three years, the employee deliberately neglected her job and failed to demonstrate that she was prepared to do her work. The uncertainty created by the employer about the further course of the employment did not carry sufficient weight. For that reason, the employee was not entitled to claim wages.

Eric van Dam (evd@clintlegal.com / +31 20 820 0330)