The employer and employee started a mediation process together, on the advice of the company doctor. The parties tried to reach a settlement together after the first meeting, but failed. Employee then asked the mediator to schedule another mediation meeting. Employer, on the other hand, believes that employee is not fulfilling her reintegration orders and applies a wage freeze. Employee then goes to court. What does the court think?

Facts

Employee reported sick in March 2023. The company doctor recommends using a mediator because work-related problems are preventing him from returning to work. An intake meeting with a mediator took place in June 2023.

Thereafter, employer and employee tried to reach a termination settlement but were unsuccessful. In July, employer asked employee to continue with the mediation upon which employee informed employer that she was still willing to mediation and asked the mediator to pass on some dates when the mediation could be continued.

However, from July 2023, employer applied a wage freeze due to employee's failure to fulfil her reintegration obligations.

Wage freeze justified?

The subdistrict court ruled that the wage freeze was unjustified.

Employee could be expected to cooperate in mediation. It appears that she did so.

Moreover, the company doctor has repeatedly noted that as long as the work-related problems have not been solved, a follow-up consultation makes no sense, as reintegration is then out of the question.

The employee asked the mediator to pass on some dates for the continuation of the mediation and thus fulfilled her reintegration obligation.

That the mediator did not make a follow-up appointment, in response to the employee's written request to schedule a new mediation meeting, is for the employer's account and risk, according to the Subdistrict Court.

Read the court’s decision here.

Conclusion

It is sometimes difficult for both employers and employees to determine what is required of them in the context of a reintegration process and when, for instance, a wage sanction should or should not be applied. If mediation has also been advised by the company doctor, this often becomes even more complex. Therefore, it is always wise to consult a lawyer and/or mediator specialised in labour law. The employment law lawyers and mediator at SPEE advocaten & mediation will be happy to assist you.