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An employee reports sick after being involved in a work accident, in which he suffered burns. The company doctor judges, that the main problem, lies in the employee's mental state, due to coping with the industrial accident. After two talks between employer and employee, prove to be of insufficient help, mediation is initiated. Employee subsequently fails to attend the first mediation appointment and employer stops paying salary.

In two proceedings between employer and employee, the question arises whether the employer was justified in applying a salary freeze. Although the Cantonal Court in the first instance ruled that the employer's wage sanctions were unjustified, the Court of Appeal in Den Bosch thought otherwise.

The Court of Appeal considered that, under Section 7:629 of the Dutch Civil Code, the employee was in principle entitled to payment of his wages. However, the employer argued that it was right to stop payment of wages. The Court of Appeal agreed and considered the following.

According to the Court of Appeal, it was important that the company doctor had advised mediation. In the opinion of the Court of Appeal, the employee had failed to fulfil his reintegration obligations by not cooperating in starting a mediation process without good reason. After much communication regarding making an appointment for mediation, employee still indicated that he would not attend the appointment.

The Court of Appeal considered, that employee should have reasonably understood that employer would interpret this as refusing to cooperate without proper grounds and that employer would therefore proceed to a wage freeze.

It was not until January 2019 that the mediation process finally took place. With employer having already made several unsuccessful attempts since November 2018 to persuade employee to engage in mediation, the Court of Appeal found that the wage measure was rightly given

Moreover, the Court of Appeal held that, from the moment the employee did show willingness to participate in mediation and thus demonstrate his willingness to cooperate in promoting his reintegration, wages should indeed have been paid again. The wage sanction applied by the employer should therefore have ended from that point onwards (it did not).

Would you like to know more about this topic? Do you have questions about mediation in an employment relationship in the case of a sick employee and the rules that apply in that context? The employment law specialists at SPEE lawyers & mediation, will be happy to help you.

SPEE advocaten & mediation Maastricht


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