When is there a tacit continuation of a fixed-term employment contract?

The central issue in this case was whether, after the expiry of the term of the temporary employment contract which the employee had with the Judicial Institutions Department (Dienst Justitiële Inrichtingen - DJI) until 17 September 2020, the employment contract was tacitly continued, because the employee was still scheduled to work on 17 and 18 September 2020 and also carried out her usual work on those days. Employee claims salary and reinstatement, employer says employment contract is terminated. What does the judge think?

In brief, the employee claimed continued payment of her salary from 19 September 2020 and re-employment. The Subdistrict Court rejected the claims. According to the Subdistrict Court, the employment contract had not been extended. By her appeal, the employee wanted her claims to be allowed as yet.

First and foremost, 'tacit continuation' implies that the parties must have reached a consensus, aimed at continuation of the employment. Whether or not there was such an agreement of will must be assessed on the basis of the doctrine of wills/confidentiality.

However, employee's assertion that she could reasonably have deduced this will from the fact that she was still scheduled to perform her duties on 17 and 18 September 2020 and that she was also able to perform those duties then, is insufficient in light of the other circumstances of the case. It is sufficiently clear from those circumstances, viewed in their context and connections, that it was repeatedly made clear to the employee that her employment contract would not be extended.

In line with this, during the hearing on appeal, employee stated that she had not been told anything by managers from which she could conclude that the DJI had reversed its decision. In that situation, employee could not reasonably have deduced from the fact that she was still listed in the current duty roster after 16 September 2020 and that she was able to perform her duties on 17 and 18 September 2020 that the DJI had indeed reversed its decision.

All the more so because she could and should have known that in the next roster, for the period from 21 September 2020 to 4 October 2020, she would be listed as 'off duty'. Without making enquiries, which she failed to do, she could not reasonably assume in that situation that DJI wanted to continue the employment relationship with her. In the circumstances of this case, it is therefore not possible to speak of a tacit continuation of employment.

It is true that the DJI was negligent in not removing the employee from the current roster and that it should not have allowed the employee to return to work on 17 September 2020, but in this case this did not result in an implicit continuation of the employment contract.

The appeal does not succeed and the contested judgment will be upheld.

You can read the judgment here.

Do you require more information about this judgment or about the conclusion and/or continuation or termination of employment contracts? SPEE advocaten & mediation will be happy to be of service.

SPEE advocaten & mediation Maastricht