Undue payment of wages after dismissal with immediate effect

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Subdistrict Court Brielle 16 February 2010, www.rechtspraak.nl, ljn: BL5251


An employee worked at a company providing industrial cleaning services, on the basis of an employment contract for one year which came into effect on 1 October 2007. On 11 June 2008 the employee was dismissed with immediate effect because he repeatedly arrived late at his work. The employee had indicated that the reason he kept arriving late was to annoy his supervisor. But the employer mistakenly continued to pay wages right through to the twelfth period (the wages were paid every four weeks) of 2008. When the employer discovered his mistake, he claimed the wages back as undue payment.

Until that moment the employee had not disputed the dismissal, nor had he made himself available for paid employment. When the employer sought to recover the wages however, the employee challenged the dismissal. He said that he had not previously challenged the dismissal because he continued to receive wages, which he interpreted in good faith as a correct payment of wages and (with respect to the component that continued to be paid after the fixedterm employment contract had ended) reasonable severance pay. The employee said he had not applied for an unemployment benefit for the same reason, and that repayment of the wages would leave him in an even worse position. The employer did not inform him until a letter of 17 December 2008 that, in the opinion of the employer, undue payment had taken place. The lawyer of the employee also pointed to the limited education of the employee and his limited “cognitive skills”.

Eventually the court arrived at a decision on the case. It stated first and foremost that the employee had not invoked the invalidity of the dismissal with immediate effect, nor had the employee claimed that the employer should pay compensation on the grounds of termination of the employment contract before the expiry of its agreed duration. The payments were furthermore made unduly, which means that the employee should pay them back unless the employee had good reason to believe that the employer had reversed the dismissal.

The subdistrict court subsequently judged that there was no question of this, considering that after the dismissal with immediate effect, the employer took no action whatsoever with respect to the employee, and therefore had done nothing to give the employee any reason to believe anything. Nor had the employee been asked to come back to work. The employee did not protest at the dismissal, nor did he seek alternative work. According to the court, when the employee was receiving wages even at the end of the employment contract, he should have understood that he had no right to them, so that after 1 October 2008 the employee acted in bad faith by keeping the money.

The subdistrict court then considered whether reclamation of the wages was unacceptable according to criteria of reasonableness and fairness. Here the court judged that due to his modest education and limited intelligence, perhaps the employee did not properly understand the consequences of the dismissal with immediate effect because he had continued to receive his wages. If he had not received the wages, he would have gone to UWV (the Employee Insurance Agency) or sought legal aid because of lack of money, and then he would probably have challenged the dismissal, or at least applied for a social assistance benefit. If the claim of the employer were to be granted in full, the employee would have no income whatsoever as a result, which the court considered in this case to be unacceptable according to criteria of reasonableness and fairness. Finally, the court ruled that the employee must repay 40% of the wages paid out before the end of the employment contract, and that the wages paid out after the end of the employment contract must be repaid in full.


Claiming back undue payment of wages is always awkward. Subdistrict courts are quick to rule that reclamation is in conflict with good employment practices, especially in cases where the employee is not required to understand that he has received too much in wages. In this particular case the reclamation was not based on the employment law norm of good employment practices but on the general norm under civil law based on the requirements of reasonableness and fairness. This is an instrument of last resort which may be used by the court in civil matters, but usually the bar is set very high when it seeks to does so.

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