Entitlement to Wages of On-call Employee who is Unable to Work as a Consequence of the Corona Measures

Year of publication

2020


Year of publication

394


Reference

Sub-district Court of Amsterdam, 3 September 2020, ECLI:NL:RBAMS:2020:4354


Decision

The amount the wage claim of an on-call worker who had not performed any work during the lockdown as a consequence of the corona measures, should not be determined on the basis of the average scope of work in 2019, partly because the employee had recently rejected an offer for a scope of work that was based on this average. The Court based the continued wage payment on the average scope of work over the last three months.

Since March 25, 2017, an employee had been working as a tourist guide under a zero-hour contract. In January 2020, as mandated by the introduction of the Balanced Labour Market Act, the employer had offered the employee to continue the employment contract with a fixed scope of work, based on the average number of hours in 2019, which, in this case, was 28 hours per week. At the end of February 2020, however, the employee had rejected this offer. Early March 2020, the employee asked for an employment contract for a fixed number of 18 hours per week, equal to the average number of hours worked during the last three months. The employer, however, had rejected this request.
When, mid-March, the corona measures became applicable, the employer stopped calling on the employee. The employer continued paying the salary as of April 2020 on the basis of the average number of hours worked during the months of January, February and March 2020, which was slightly more than 28 hours per month.
The employee considered the chosen period of January, February and March 2020 not representative for calculating the average number of hours of work for the months from April 2020, (1) because it was low season at the time, (2) because, already in March, the amount of work was low as a consequence of the corona measures and (3) because the employee had taken leave twice in that period.
In the employee’s opinion the entire calendar year of 2019 should be a representative period for calculating the average scope of work. On this basis, the employee thought he was entitled to an average hourly workload of 28 hours per week.
In March, April and May 2020, the employer received an advance on the contribution for his labour costs on the basis of the first temporary Emergency Measure for Sustained Employment (NOW-1)

When the Sub-district Court had to decide on this case in summary proceedings, the Court firstly rejected the employer's argument according to which the employee would no longer be entitled to appeal to the presumption of the scope of the working hours, since he had rejected an offer for a fixed scope of work. According to the Sub-district Court, the fact that the employee did not want to work on the basis of a fixed working time of 28 hours per week did not imply that he had also agreed to a scope of zero hours.
According to the Sub-district Court, the employee's scope of work should be determined on the basis of the presumption of the scope of work. This means that the employee may claim a salary that is based on the average number of working hours during a period of three months to be designated by him. In principle, according to the Sub-district Court, these should be the preceding three months, but the employee can also opt for a different three-month period. However, the employee had opted for a twelve-month period (throughout 2019) and had insufficiently substantiated why it was better to have that period as a reference period, moreover since he had recently rejected an offer of a fixed scope of work that was based on the work throughout 2019.
Therefore, the Sub-district Court ordered the employer to pay the wages based on the average number of hours over the months of January, February and March 2020. Over the months of April, May and June 2020, the employer had already paid wages on this basis. The decision, therefore, only referred to the months as of July 2020.
The employer had also stated that the employee would not be entitled to any wages at all since he had not worked, but the Sub district Court rejected this argument. According to the Sub-district Court, the corona crisis is an exceptional circumstance that does not automatically lie within the control of the employer or the employee. The law obliges the employer, however, to continue to pay wages to the employee who is not working, unless the cause for not working lies within the employee's control. According to the Sub-district Court, the risk lies in the employer’s control rather than in the employee’s. The decisive factor for the Sub-district Court was that the employer had received compensation for the labour costs under the NOW.


Comments

An on-call employee to whom - after the employment contract has lasted for one year - the compulsory offer for a fixed scope of work of the latest twelve months has not been made is, without any doubt, entitled to wages during this fixed scope of work. The question, however, is what wage the employee is entitled to, to whom the offer for a fixed amount of work was made, but who had not accepted this offer.
In the above case The Sub-district Court answers this question.

In that case, the employee will go back to the situation that applied before the offer for a fixed work scope was made. Since, at the time, the employment contract had already lasted for more than six months, this implied that the on-call worker was also entitled to wages when he could not work. This would only be different if the cause of not working would lie within the employee's control. Of course, there’s no way anyone can say that the cause of corona crisis was within the employee's control. Therefore, it was no surprise that the employee did not have to go back to zero-hours of work, for reason that he had a zero-hour contract.
What the employee does go back to is the entitlement to continued payment of wages for a period of three months to be designated by the employee, where the employer may submit evidence in rebuttal by stating that the employee bases his wage claim on a non-representative three-month period. However, the employee did not base his wage claim on a three-month period, but on a twelve-month one, and, of all periods, even the twelve month period that ad formed the basis of the offer for a fixed scope of work he had just turned down. This can hardly be said to be particularly reasonable.
As a result, the employee - at least in these summary proceedings - ultimately remained wedged on a wage claim that was based on the average number of hours of the last three months. The employee would have been better off he had designated a period of three months that would entitle him to a high wage. In that case, the employer would have had to provide evidence in rebuttal and the wage claim may even have come out higher than a wage claim based on the average of the last three months.



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