No employment agreement in writing, yet legal clause for trial period

Year of publication

2009


Edition number

172


Reference

Subdistrict Court of Zwolle, 21 August 2009, www.rechtspraak.nl. ljn: BK0852


Decision

An employee is employed as a planner, based on an employment contract for a definite period of time until 19 February 2009, by a company that gives training and courses in the area of first aid and in-house emergency services. The business premises used by the employer also house, at least until 1 March 2009, another company that provides education on intermediate and higher vocational level. During her employment with the employee, the employee also partially works for that company. On 7 January 2009, the employee discusses with that other company an employment from 19 February 2009 onwards, the date that her employment con-tract with the employer expires. As a result of that meeting, that company draws up an em-ployment contract for a definite period of time until 18 February 2010. The employee shall then work as an administrative assistant, but in the middle of July her job shall be defined further, based on her educational and work experience level. The employee asks two questions about the employment contract, with a trial period clause, concerning the name of the job and the salary. The employer then adapts the employment contract, but it is not actually signed. On 16 March 2009 the employer terminates the employment contract, referring to the trial period clause.

The employee contests this, stating that the second employment contract is a continuation of the first, so no new trial period could have been stipulated, and the trial period clause was not agreed to in writing and is therefore not legal. She claims at the subdistrict court, among oth-ers, resumption of work and payment of wages.

The subdistrict court’s provisional ruling is that there is no continuation of the employment contract. Both employers are not connected. The fact that they worked from the same premis-es until 1 March 2009 and that the employee also worked for the other employer during her first employment contract, is insufficient. The employee’s job differed in the first and second employment and the employers’ activities also differ. In the new employment, the employee also asked for a day off from the new employer.

The defense that the trial period clause was not recorded in writing is also rejected by the subdistrict court in its provisional ruling. It was established that the employer did want to record the trial period in writing and that the employee only had two remarks when she was sent the draft of the employment contract, that did not concern the trial period. The subdistrict court is therefore of the opinion that, in proceedings on the merits, the ruling shall be made that the employee cannot appeal to the trial period clause not being binding because it was not signed. The employees’ claims are therefore rejected.


Comments

Although in this case the subdistrict court helps out the employer, employers are well advised not to have employees start work until the employment contract with the trial period clause has been signed. When work is started, there is a legally valid employment contract, even if the contract has not been signed. After all, a verbal employment contract is also legally valid. At the same time, the law requires the form in writing for a legally valid trial period clause. Without the employee’s signature on the employment contract, the trial period clause is not legally valid. Although it seems reasonable that the subdistrict court in this case points out to the employee that she did not contest the trial period clause, so the employer could expect that she would agree to this, and therefore sign, in reality there is no trial period clause in writing. Not every subdistrict court shall therefore help out the employer in such a case.



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