No further payments of salary – down to the last cent

Shortly after a transport company had informed a driver that his second short-term employment contract was not going to be renewed, the driver reported sick. The company doctor was of the opinion that the driver could (pretty much straight away) work half days, taking on easy tasks in the warehouse. The driver disagreed with this and informed the company doctor and the transport company of his decision to ignore the company doctor’s advice.

That same day, the transport company sent the driver a letter (i) demanding that the driver adhere to the company doctor’s advice; (ii) advising the driver to obtain an expert opinion from the Employee Insurance Agency (UWV); and (iii) announcing that it would stop paying his salary if he did not adhere to the company doctor’s advice within five days.

Stopping salary payments

The driver objected to his salary being stopped and requested an expert opinion. However, as he refused to work, the transport company stopped paying the salary he would have received up to the end of the employment contract a month later.

The UWV’s expert opinion

The UWV agreed with the company doctor’s advice and found that there were readily available options.

The day after his employment contract ended, the driver requested a final settlement, including the payment of unpaid salary, unused holidays and a transition payment. When the transport company refused to do this, the driver applied to the subdistrict court to claim payment of those components.

Subdistrict court

The driver took the position that he was entitled to at least 50% of his salary, given the fact that he was 50% unfit for work.

The District Court of Rotterdam made short shrift of that assertion. The subdistrict court held that the employer had the right to stop paying the salary for as long as the employee refused, without a valid reason, to carry out suitable work when he was in fact able to do so. In that case, entitlement to continued payment of salary lapsed completely, thus including that part of the working hours for which the employee is fit to work.

The employee then attempted to make a plausible case that he had kept himself available for reintegration after he had received the expert opinion. It was established that he had had two short phone calls with the transport company, but the latter disputed the driver’s statement that he had indicated then that he wanted to reintegrate. Besides, it was also established that the driver did not respond to the transport company’s subsequent invitation to start the adjusted work.

Put briefly, the driver had to make do with the transition payment and payment of unused holidays.

Dutch Supreme Court

This decision aligns with the Dutch Supreme Court’s CSU Personeel judgment from 2014, in which it held that an employer is entitled to completely stop paying salary for as long as an employee refuses to work even though they are able to. The Supreme Court found that “the legislature considers a deterrent sanction that entails the complete loss of entitlement to continued payment of salary appropriate”. The possibility of no salary being paid needs to be an actual incentive.

Step-by-step plan

The transport company did everything right, and similar cases can now follow its example. Briefly put:

  • if an employee reports sick, contact the company doctor;
  • compel the employee to adhere to the company doctor’s advice, and if necessary announce that the salary will be stopped. It is important for employers to realise that stopping paying the salary, including the timely announcement of such, is mandatory, otherwise the employer itself runs the risk of having to continue paying the salary. After all, the employer must ensure that the employee fulfils their reintegration obligations, and must intervene where necessary;
  • inform the employee of the option to obtain an expert opinion from the UWV if they do not agree with the company doctor’s advice;
  • actually stop paying the salary.

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