Given the closing of all non-essential stores in the Netherlands last week, this topic has become vital. Employees at shops often work on an on-call basis. Can an employer be obliged to continue to pay the salary despite the fact that he has no work for the on-call employee? In a recent caste the District Court of Amsterdam decided on this question.
The case was about an employee who worked as a tourist guide. Just before the COVID-19 pandemic, he refused the offer of a fixed amount of work (which the employer is obliged to do in respect to an on-call employee after 12 months under Article 7: 628a paragraph 5 of the Dutch Civil Code). He thus continued to work on an on-call basis. However, refusal of this offer does not preclude the legal presumption laid down in article 7: 610 of the Dutch Civil Code, the article that states that the amount of work in one month is presumed to be equal as the average amount of hours work performed in the last three months before.
The employer was not able to refute this legal presumption and the argument that the employee knowingly accepted the risk that there could be less work at any time (for example during this pandemic), when declining the offer for a fixed employment contract, did not stand. Pursuant to Article 7: 628 of the Dutch Civil Code, as of January 1st, 2020 no work performed presumes salary, unless it is for the account and risk of the employee. Furthermore, the employer could appeal to support measures, such as NOW, so that a large part of the employee’s salary would still be subsidized. According to the District Court of Amsterdam, the employee was therefore entitled to wages for the average number of hours he had worked in January, February and March.
Questions about this subject or other employment law topics, please contact Amanda Brouwers.
Source: ECLI:N:RBAMS:2020:4354
