BBL-Student had no Employment Contract but a Traineeship Agreement

Year of publication

2020


Year of publication

369


Reference

Sub-district Court, Enschede, 2 December, 2019, ECLI:NL:RBOVE:2019:4948


Decision

The agreement with a BBL student (combination of vocational practical training and school) could prematurely be terminated by the employer, because the agreement was not an employment contract, but a traineeship agreement.

A home care institution had entered into a traineeship agreement with a school and one of its students. The student attended the two-year BBL Individual Health Care (IG) education at this school. For one day per week the student attended school and for four days per week she worked at the home care institution. In the traineeship agreement it said that she had entered employment at the home care institution as a trainee from 15 February 2019, that she would receive an allowance of € 347 gross per month during the first seven months following commencement of the employment and that she would subsequently be entitled to an amount of € 1,838.58 gross per month on a full-time basis. The traineeship agreement stipulated the possibility of premature termination with a one-month notice period for the employer. For the traineeship agreement, the CAO for (among others) home care institutions applied. The stipulation in the traineeship agreement on the allowance was in accordance with this CAO.
By letter of 24 June 2019, the home care institution terminated the traineeship agreement as of 31 July 2019. The alleged reason was that the student had failed to respect the agreements made by carrying out unauthorized acts.
The student did not agree with this allegation. She argued that the employment contract applied for the duration of the training, which the home care institution could not terminate without further ado, and she claimed payment of the salary, the holiday allowance, compensation for premature termination of the agreement and fair compensation. According to the home care institution, however, there was no employment contract, but a traineeship agreement. The BBL student already possessed a qualification as an "assistant" and now had to gain experience as a trainee in order to become qualified as an "IG carer".

The Sub-district Court ruled that the student’s claims could only be met if the traineeship agreement was an employment contract. This should not be decided on the basis of the qualification that the parties have given to the agreement, but on the basis of the agreed rights and obligations, having regard of their actual implementation. To answer the question of whether there was an employment contract or a traineeship agreement the real issue was whether the work aimed at expanding the student’s own knowledge or experience in order to complete the studies or at providing an active contribution to achieve the primary objectives of the employer's business. The student had to make arrangements on job-shadowing with employees of the home care institution herself. This was a reason for the Sub-district Court to conclude that there was a traineeship agreement. The fact that the student occasionally had washed and dressed a client did not change this, according to the Sub-district Court. Since there was a traineeship agreement, premature termination did not require compliance with one of the statutory grounds for dismissal. Therefore, the student's claim was rejected.


Comments

Usually agreements with BBL students are entered into in the form of a combination of a traineeship agreement and an employment contract. In this combination, the traineeship agreement is an agreement between the school, the student/employee and the employer. The employment agreement is a regular employment contract between the employer and the student/employee, except that the employment contract includes a resolution clause, securing that the employment contract ends when the traineeship agreement ends. This resolutive condition is considered legally valid because the purpose of the employment contract (to enable the student to gain practical experience in the context of his/her education) can no longer be achieved once the education has ended and because the employer cannot independently terminate the traineeship agreement. For termination of the traineeship agreement the school’s consent is required.
In the above case, however, in accordance with the applicable CAO and in any case during the first seven months, no employment contract had been entered into but a traineeship agreement.



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