Suspend Wage Payment or Cease it? What’s in a Name?

Year of publication

2015


Year of publication

259


Reference

Sub-district Court Utrecht, 26th August 2015, www.rechtspraak.nl, ECLI:NL:RBMNE:2015:6171


Decision

The employer, who informed the employee that the obligation to pay wages was suspended for as long as the employee did not perform the suitable labour, still had to pay the wages when the employee resumed performing the customized labour, because the employer had used the term "suspend" the wages instead of the term "cease" the wages.

A company engaged in the installation and maintenance of coffee machines employs an employee who has been incapacitated for work due to back problems since 21st May 2013. On 7th November 2013 the employee started to do customized work. But, since he already ceased this work on 9th November 2013 because he could not sustain it, and since he also did not resume this work after a discussion on 11th November 2013, the employer informs the employee that payment of wages will be suspended as from 11th November 2013. He adds that payment of the wages will recommence from the moment the employee resumes his duties or from the moment an expert opinion from the UWV would show that it deviates from the occupational physician’s opinion regarding the appropriateness of the activities to be carried out. When, on 24th December 2013, the employee resumes work for four hours a day, the employer announces that the salary suspension will be maintained until 23rd December

2013. When, on 13th February 2014, the employee ceases the customized work again, this procedure is repeated. On 18th February 2014 the employer writes to the employee that the wage payment will be suspended again. When an expert opinion from the UWV of 19th March 2014 shows that the offered work should be considered to be appropriate, the employee resumes his work on 25th March 2014. But at the Sub-district Court the employee claims wages over the two periods the wage payment was suspended. The employee argues that, according to the letters he wrote, the employer has chosen to suspend wage payment, and not to cease it. He refers to a judgment of the Leeuwarden Court of Appeal on 29th March 2011. The employer argues that "suspension" not only implies withholding the wage and he refers to the fact that it was stated that the wages will not be paid until the employee resumes work. Therefore, according to the employer, it was clear that cessation was not the case here because of non-compliance with the reintegration obligations.

The Sub-district Court considers that the employer is entitled to suspend the salary during the time when the employee fails to comply with the verification requirements in respect of absenteeism and that the employer is entitled to cease the wage when, without valid reasons, the employee does not perform customized work. Since refusal of customized work is the case here, in principle the employee was not entitled to any sick pay. But the Sub-district Judge points out that the law also requires that the employer can only rely on any grounds not to pay wages when he has notified the employee about it in advance, immediately after the suspicion of the existence of a ground for not paying wages arose. This requirement, according to the Sub-district Judge, the employer failed to meet. The Sub-district Judge points out that, according to the dictionary, "suspension" of wages means that the wage payment is "postponed", "done at a later date" or "deferred" and not that it is definitively terminated or that it expires. The Sub-district Court supports a finding of the Leeuwarden Court of Appeal in its judgment of 29th March 2011, where it is stated that an employer can be expected to weigh his words carefully, especially when so drastic means for the employee are being used such as a wage sanction. The Sub-district Court further refers to the fact that the employee did not fully master the Dutch language. The clause in the employer’s letters that "payment of the wages will recommence from the moment the employee resumes his duties", according to the Sub-district Judge, ambiguously suggests a wage stop instead of a wage suspension, since recommencing wage payment can also mean that the suspended part of the salary will be paid as yet. So, the employee’s claim is granted.


Comments

The Sub-district Court’s judgment, once again, shows that employers should act very carefully when imposing sanctions on incapacitated employees. Wage suspension applies when the entitlement to sick pay can not be assessed due to failure to comply with the verification requirements. In the case that it is later still determined that the employee is ill, retroactively the full wage has to be paid. Cessation of payment applies when an employee refuses to perform customized work, or refuses to cooperate in his reintegration. In that case, recommencement of wage payment will only take place from the day the employee starts resuming customized work again or starts cooperating in his reintegration.



Leave a comment


Name: *
E-mail address: *
Your comment:
Fill in the code: *


Reactions


No comments.