Has the Stipulated Work Changed After 20 Years?
A discussion of the judgment of the Court of Appeal of
Arnhem of 1 June 2010
The Facts in the Judgment
An employee has been employed by an employer in the
position of fork lift truck driver since 1976. This work consists
of the unloading of trucks loaded with paper. In 1983 the employee
had a heart attack that made him fully unfit for work. In 1984 the
employee partially resumed the work. Since 1984 the employee has
been working (with the exception of a period in 1995 when he was
fully unfit for work) 20 hours per week, divided over five
mornings. The employer did not set out anything in writing about
the fact that the work stipulated in the employment contract had
been replaced by the work performed by the employee in
practice.
In November 2006 the employer requested the employee to start
working afternoons as from 1 January 2007 as a result of a change
in the times of the paper deliveries. The employee did not agree to
this. Next, a conflict arose between the employer and the employee
about the shifting of the work from mornings to afternoons. In
December 2006, the employee reported sick because his blood
pressure was too high as a result of increased tension at work. In
June 2007, the UWV (Employee Insurance Implementing Body) set the
employee's incapacity for work at 80-100% with retroactive
effect until 1 January 2007. As of August 2007 the employer ceased
paying the employee's wages. In proceedings before the
Subdistrict Court the employee claimed continued payment of wages.
The employer took the position that there was no question of a new
period of illness and that pursuant to Section 7:629 (1) of the
Dutch Civil Code it was therefore not obliged to continue paying
the salary. The Subdistrict Court rejected the employee's claim
and awarded the (counter)claim of the employer to pay back the
salary of January through July 2007. The employee then lodged an
appeal against the judgment of the Subdistrict
Court.
Judgment of the Court of Appeal
It is an established fact that for more than 20 years, due to
his heart problems the employee has been performing work for four
hours during five days per week for a decreased salary instead of
his original 40-hour working week. During those 20 years the
employer has never urged the employee towards resuming his work for
the full 40 hours. According to the Court of Appeal it has neither
been argued, nor has it become evident that it was to be expected,
because of the nature of the employee's complaints, that he
would be able to resume the originally stipulated work at any given
moment. On the contrary, according to the Court of Appeal, it has
appeared from the documents submitted in the proceedings that
apparently it could not be expected of the employee that he would
be able to perform the original, stipulated work. Furthermore, the
employer has not been able to prove that it has undertaken any
action from which the employee should have derived that his most
recently performed work is not his newly stipulated work. According
to the Court of Appeal, good employment practice entails that the
employer should have informed the employee if it was of the opinion
that this was not the case, or should have taken action in order to
establish a clear situation. The Court of Appeal has ruled that
under these circumstances the employee could justifiably expect
that the employment contract had changed in the sense that the
stipulated work consisted of the performance of his work as a fork
lift truck driver for four hours per day during five days a week
(although for a decreased salary). According to the Court of
Appeal, against this background the employee could justifiably
expect that the employment contract between the parties had tacitly
changed in the sense that the adjusted work has become the
stipulated work.
Tips:
The starting point is that in the event of a permanent
resumption of work in a different suitable position incapacity for
work will no longer be the question.
The Court of Appeal is of the view that if the stipulated work
is not officially changed, there will be a moment on which the
stipulated work is no longer the old, but the adjusted work. In
that case, in the event of a new sick report a new sickness period
and therefore a new obligation to continue paying wages will start.
It is recommended to confirm in writing that the stipulated work
remains unadjusted, for instance when it concerns a trial
placement.
In the judgment at issue the Court of Appeal does not answer the
question when the "turning point" occurs. In the view of
the Court of Appeal this depends on the circumstances of the case.
In this judgment the Court of Appeal attached value to the
circumstance that there was no prospect of an extension of the
number of hours to be worked by the employee. If an extension of
the work (in hours or in salary) is not at issue anymore, it is
advisable to confirm the change of the stipulated work in
writing.