In this dispute, the employer and employee disagreed on whether the employer should pay the employee his salary, despite the fact that Corona had (temporarily) prevented the employee from working in his own position (waiter). The employee rejected the offer of work as a meal delivery boy. What does the judge say about this?
On 24 February 2016, the employee started working at Sumo in the position of waiter in the service department. In the meantime, the employment contract is for an indefinite period of time with a weekly working time of five hours a week. On 9 May 2020, the parties entered into a settlement agreement stipulating that the months of April and May 2020 will be paid on the basis of 40 hours per month and that from June onwards, only the hours called for and hours worked will be paid.
Sumo has been closed since 15 March 2020 and again, after reopening, since 14 October 2020 due to the government's coronavirus measures. From 1 November, Sumo offered employee work as a meal delivery boy on several occasions. From 14 October onwards, the employee did not (or almost not) work for Sumo.
On the basis of Section 7:628a paragraph 5 of the Dutch Civil Code, the employee claims his overdue salary for the period 1 January 2020 up to and including 31 July 2021. Sumo's defence is that it has been hit hard by the measures taken in connection with the coronavirus. Due to the restaurant's closure, Sumo entered into discussions with its employees regarding the ongoing salary obligations and the sharing of responsibility. Within this framework, the settlement agreement of 9 May 2020 was reached. In addition, Sumo argues, the employee could not reasonably refuse the offered work as a delivery driver from November 2020 onwards.
The Subdistrict Court ruled as follows. For the period from January to October 2020, it is important that it is not disputed that the employment contract must be qualified as an on-call contract (Section 7:628a (9) of the Dutch Civil Code). For employees who, on 1 January 2020, have already been working on the basis of an on-call contract for longer than twelve months, the employer must, pursuant to the transitional provision of Section IX WAB, make an offer for a fixed scope of employment within one month after the amendment of the law comes into effect. In this case, Sumo has not made an offer.
According to Section 7:628a, subsection 8, of the Dutch Civil Code, during the period in which the employer does not comply with this obligation, the employee is entitled to salary based on the fixed scope of work. In the opinion of the Subdistrict Court, it must be inferred from this that this right to salary exists as from 1 January 2020.
For the period from November 2020 onwards, it is important that the employee has rejected the orders to perform work. However, this does not mean that there is no entitlement to salary pursuant to Section 7:628a (5) in conjunction with Section 7:8 of the Dutch Civil Code.
Together with Sumo, the Subdistrict Court is of the opinion that it is the legislator's intention that an employer cannot parry an employee's claim to salary by arguing that the employee was not available to perform work. In this case, it must therefore be assessed whether the employee could reasonably have refused to carry out work other than that agreed upon. With regard to the question of whether the employee could have refused to accept the proposal, the sub-district court ruled, based on the Stoof/Mammoet ruling, that the non-performance of work from November 2020 onwards should be reasonably borne by the employee.
For the period starting in June 2021, it is important that Sumo reopened on 5 June 2021 and the usual work as a waiter is available again. Therefore, the salary as of 1 June 2021 is awarded.
Once again, we see that corona raises many legal questions. Do you also have a question about employment law, whether or not corona-related? SPEE advocaten & mediation will be happy to assist you!