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Full transition payment for partial continuation of employment contract07-07-2021

In 2018, the Supreme Court ruled (in the so-called 'Kolom judgment') that an employee may be entitled to a partial transition payment in the event of partial termination of the employment contract. But what happens to the right to a transition payment if an employment contract is not officially “terminated” and the parties only implicitly make an agreement that fewer hours will be worked? This question recently has been considered by the court of Central Netherlands (judgment 30 April 2021 Central Netherlands District Court).

The case

Until May 2015, an employee worked 36 hours a week in the position of Allround Operator Production for a gross monthly salary of € 3,153.44. In May 2015, the employee became incapacitated for work and two years later, in May 2017, he was awarded a WGA benefit. As part of his reintegration, the employee has resumed his original work as an operator for 12 hours a week at a gross monthly salary of € 1,051.04.

In 2018, the employee became ill again and was unable to work the remaining 12 hours a week. An IVA benefit was subsequently awarded to the employee. The employment contract has been terminated by the employer after permission for dismissal from the UWV has been obtained.

In that context, the employer paid the employee a transition payment, calculated on the basis of the last-earned salary, which was based on a 12 hours per week contract. The (heirs) of the employee took the position (among other things) that the transition payment should have been calculated on the basis of the full salary of the 36 hours per week that the employee had worked until 2015.

Court decision

The court refers to the Kolom decision of the Supreme Court and establishes that in this case the conditions set by the Supreme Court for the creation of the right to a (partial) transition payment in 2017 have been met: structural loss of hours of more than 20% of the original number of hours, and that loss of hours was the result of compelling circumstances, namely the (permanent) incapacity for work of the employee. According to the court, this means that now – at the end of the employment contract – the employee can still claim the transition payment calculated on the basis of the wage for the original 36 hours.

Conclusion

Unfortunately, the court hardly motivates why in the given circumstances the former number working hours should be the basis of the calculation: the court only refers to the general purpose of the entitlement to the (partial) transition payment, which would follow from the decision of the Supreme Court.

It may go a bit far to ask employees to immediately request payment of a partial transition payment when the hours are adjusted. This certainly applies if it is not clear yet whether a situation is structural and sustainable or not. In that sense, the solution chosen in this case is pragmatic and practical.

In view of this ruling, employers should in any case take into account that for years after an adjustment of working hours, the original contract hours and the corresponding wage must be taken into account when calculating the transition payment.

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11-01-2022Full transition payment for partial continuation of employment contract

In 2018, the Supreme Court ruled (in the so-called 'Kolom judgment') that an employee may be entitled to a partial transition payment in the event of partial termination of the employment contract. But what happens to the right to a transition payment if an employment contract is not officially “terminated” and the parties only implicitly make an agreement that fewer hours will be worked? This question recently has been considered by the court of Central Netherlands (judgment 30 April 2021 Central Netherlands District Court).

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05-11-2021Dismissal due to regular sickness absence often unsuccessful

Article 7:669 paragraph 3 sub c of the Dutch Civil Code lists the grounds that an employer can submit to the UWV or the subdistrict court judge to terminate the employment contract. One of these grounds is “regularly unable to perform the stipulated work as a result of illness or defects of the employee with unacceptable consequences for the business operations…”.

On September 3, 2021, the District Court of The Hague ruled in a case in which the employer based the request to terminate the employment contract on this ground. The ruling shows why a dismissal on this ground often has no chance.

What was going on?

The employee has been working as a car technician at a car dealership with several branches in the Netherlands since 2013. He was employed at a local facility and was part of a team of five employees working in the workshop. In 2017 he had called in sick 4x (104 hours in total), in 2018 8x (173 hours in total), in 2019 23x (468 hours in total) and until July 10, 2020 13x (400 hours in total). The employer had requested an expert opinion from UWV and it followed from that opinion that UWV was of the opinion that there was frequent absenteeism and that this situation was expected to last longer than 26 weeks.

What did the court rule?

The court first establishes that there is frequent absenteeism within the meaning of article 7:669 paragraph 3 sub c BW. The follow-up question is whether this absenteeism leads to unacceptable consequences for the employer's business operations. According to the court, that is not the case. The employer had stated that customers would be dissatisfied with the workshop activities of the branch, but could not substantiate this, according to the court. In addition, the court considers that a company of a size such as that of this employer (with several branches in the region and throughout the Netherlands) can in principle be expected to take care of absenteeism company-wide. The fact that it is not possible within its organization to provide replacement from another location, because there is a large group with all kinds of different car brands and a mechanic who works for one car brand at one location is not as easy as a mechanic can work for the other. According to the court, a different car brand at a different location has not become plausible. The employer was also unable to demonstrate that there was a (serious) financial disadvantage. The court therefore rejected the request for dismissal.

Conclusion

This court decision once again makes clear that – certainly for larger employers – it will not be easy in the Netherlands to dismiss an employee on the basis of frequent absenteeism. Proof of the high level of absenteeism due to illness is often not the problem, but proof of the unacceptable consequences for the employer's business operations is often an unviable route.

If you have any questions about absenteeism and dismissal, please do not hesitate to contact one of the specialists at Van Bladel Advocaten via (+31) 030-2203111 or info@vanbladeladvocaten.nl

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