What about an employee who reports sick and leaves immediately for an addiction clinic in Thailand? Is he entitled to receive salary during his period of illness? The Court in Rotterdam recently decided on this case.

The facts

The case concerns an employee who was employed by the employer for a fixed term from 1 May 2018. On 5 March 2019, he reported sick. On 13 March, the employee informed his employer by telephone that he would be travelling to Thailand on 14 March 2019 for addiction treatment at a clinic, and he did so.

On 9 April 2019, the employer wrote to the employee that he had discussed the situation with the occupational health and safety service and that, as a result, the employee would not be able to undergo a medical examination due to his departure to Thailand. As a result, according to the employer, employee will not be able to perform work until the end of the current employment contract - 30 April 2019. For this reason, the departure will be regarded as taking unpaid leave.

The employment contract ended on 30 April without payment of salary for the period from 15 March 2019 to 30 April 2019. According to the employer, by leaving to Thailand, the employee has completely sidelined the occupational health and safety service and has not given it the opportunity to draw up an action plan (plan van aanpak). The employer is therefore of the opinion that the employee did not comply with his reintegration obligations, as laid down in Section 7:629(3)(e) of the Dutch Civil Code. This article provides that an employee is not entitled to salary for the time during which he refuses to cooperate in drawing up, evaluating and adjusting an action plan, without sound reasons.

In the absence of data to be verified by ArboNed, the employer disputes that the employee was prevented from performing his work, except for making any work or reintegration physically impossible through his own decision to leave abroad. On 16 May 20219 , the admission to the clinic, including the diagnosed disorders, was confirmed.

The employee is not content and requests that his employer be ordered to pay a gross sum of €3,926.40, consisting of the salary for the period from 15 March 2019 to 30 April 2019, including statutory increase, on the basis of Section 7:629 of the Dutch Civil Code.

Judgment of the Rotterdam District Court

It is not disputed that the employee reported sick on 5 March 2019 and that he did not perform any work for employer from that date. The central issue is the fact that no expert statement was submitted by employee and that employer has disputed that employee was prevented from performing the work.

UWV expert statement necessary?

The employee claims that during his stay at the clinic in Thailand, he submitted an application to the UWV for an expert's statement, but that his application was not taken into consideration because he was abroad. He also stated that he submitted another application upon his return to the Netherlands. According to the employee, this application was not processed either, as his employment contract had already been terminated and he had been awarded a benefit under the Sickness Benefits Act (Ziektewet). The employer disputed both of the employee's applications.

The Subdistrict Court ruled that, partly in view of the fact that attaching an expert's opinion was intended to strengthen the legal position of the employee, the employee could not reasonably be required in this case to attach a UWV expert's statement to the claim for salary. The employee's claim is therefore admissible.

Disabled or not?

It must then be assessed whether the employee was unfit for work in the relevant period, 15 March to 30 April 2019. According to the Subdistrict Court, the employee was not unfit for work. After all, the letter from the doctor who treated the employee indicated that the employee was suffering from a number of disorders, but did not state that the employee was unable to work as a result of these disorders. It cannot therefore be inferred from the letter that the employee was unfit for work during this period, as a result of which it cannot be established that he/she was entitled to salary during this period. The claim will therefore be rejected.

You can read the full judgment here.

Do you also have questions about continued payment of wages during illness, reintegration and/or expert reports? The employment lawyers at SPEE advocaten & mediation know what to do.