Should overtime be paid or not?

The employer and employee are discussing whether or not the overtime worked by the employee should be paid out. The employer referred to the employment contract, which states that overtime is taken into account in the employee's salary and is inherent to the position. The employee referred to the Personnel Manual, which states that they must be paid. Who is right?

In the employment contract concluded between the parties on 22 February 2011, the "Working Regulations" were declared applicable. Employee claims he has worked overtime, which has not been paid out by employer Misuga Kaiun.

Employee claims, with reference to article 6.03 of the Working Regulations, payment of 1.043,8 hours overtime (amounting to € 63.578,60 gross).

The judge granted the employee's claim for an amount of € 46.803,99. Misuga Kaiun does not agree with the verdict. On appeal, it has claimed that the aforementioned judgement should be set aside and that the employee's claim should be rejected.

The common thread running through the grievances raised is Misuga Kaiun's complaint against the Subdistrict Court's ruling that the employee is entitled to payment of overtime. Misuga Kaiun disputes that employee has ever been entitled to payment of these hours. It is true, according to Misuga Kaiun, that in view of the employee's nature and position, overtime may have been worked, but this overtime was not rewarded extra; remuneration for overtime was deemed to be included in the salary.

According to Misuga Kaiun, the fact that it was never the intention that the employee was paid extra for overtime work is also apparent from the new employment contract which explicitly states in Article 6.3 that the salary to which the employee is entitled includes an overtime allowance.

The Court of Appeal does not agree with Misuga Kaiun's statement of position.

Art. 1.02 of the "Working Regulations" states that the provisions of these Regulations are applicable to every employee of Misuga Kaiun, which, according to art. 6.03 of the same Regulations, means that the employee is also entitled to payment of overtime.

The above means that employee is entitled to payment for overtime worked only insofar as overtime work has been requested or approved by his supervisor.

You can read the full judgment here.

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