Too much continued payment of wages during illness

Year of publication

2011


Edition number

194


Reference

Subdistrict Utrecht 14th March 2011, www.rechtspraak.nl, ljn: BP7568 and Subdistrict Enschede 10th March 2011, ljn: BP7566


Decision

It is quite common that employers, whether or not by mistake, pay more wages during illness than is required by law. This may cause problems if the employer at any moment wants to stop this. Sometimes the employer even wants to recover the wage overpayment. The question is if this is possible at all. This question was addressed in sentences of the district judges in Utrecht and Enschede.

In the case of the magistrate in Utrecht it was about an employee who, from the beginning of her employment, showed a frequent absenteeism pattern and who, after calling in sick on April 14th, 2009, started full work again from 25th May, 2009, though not in her own position but in a position she had held before. On July 31st, 2009, she was reported fully recovered. When, starting November 16th, 2009 she regularly dropped out again and when on April 21st, 2010 she was found fully incapacitated, the employer wanted to use April 14th, 2009 as the first day of her incapacity, because the employee never entirely resumed her own work. In that point of view the employer was supported by reports of an employment specialist.

The employer who was required to pay 100% of salary during the first years of illness and then 70%, started to pay 70% paid from September 2010 and claimed the 30% he believes to have overpaid from April 14th, 2010 onward. When the employee objected in interlocutory proceedings, the magistrate judged that the employee, based on the facts of the case, could not have legitimate expectations that the appropriate work she performed (her previous job) applied for her as new stipulated work. This implies that -by the new drop out due to sickness- the employee was not entitled to a new right for pay for 104 weeks. Thus the employee had received excess wages from April 14th, 2010, but did not have to refund them because this would be unacceptable in terms of reasonableness and fairness. The fact that the employer would start paying 70% from September 2010 the magistrate judged acceptable, since the employee could not expect the employer to persist in the future in a one-time mistake.

In the case of the magistrate in Enschede it was about an employee with a salary well above the maximum daily wage, for whose contract collective employment agreement (CAO) was not applicable and whose contract did not contain any provision about the height of continued payment during illness. On the basis of the law the employer needed to pay only 70% of the maximum daily wage during illness. The employer had a history of always paying 100% of the actual salary. When on April 27th, 2010 for a second time cancer was diagnosed at the employee and he, for the second time, had to be operated, initially also 100% of actual salary was paid. When the employer found out he wanted to pay the actual amount owed and recover the overpaid. A letter to that effect was sent to the employee on December 30th, 2010. This employee too started interlocutory proceedings to prevent it from happening. The magistrate judged that based on practice the obligation had arisen to pay 100% of the actual salary and referred to the fact that many employers pay 100% of the wages in the first year during illness. As for the second year the magistrate judged, however, that it was no habit of the em-ployer to pay 100% of the actual salary and that the employee also should not have relied on it, where the magistrate pointed out that it is unusual for many other employers to do so. In the end the magistrate judges that the employer has to pay the full salary during the first year of the employee’s illness.


Comments

Recovery of undue payment of wages is often held up by the requirements of good employership, if there was no need for the employee to take this recovery into account.



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