Wage Claim of On-call Employee who had not Received any Wage for Three Years

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Court of Appeal of 's-Hertogenbosch, 28 April 2020, ECLI:NL:GHSHE:2020:1442


Three years after she was sent away and not called in ever after, an employee who initially had been contracted as an on-call employee, but who in fact worked on the basis of a permanent employment contract with regular working hours, could no longer claim wages, because she had failed to demonstrate the willingness to perform the agreed work during these three years.

Since 2010 a Limburg butcher had employed an on-call employee who used to work on Saturdays, during holidays and in peak periods. In February 2013, a discussion arose between the butcher and the on-call employee about whether the on-call employee would have to work during Carnival. Thereafter the on-call employee was never called in again and had not performed any work.
By letter of February 2016, the on-call employee stated that she was still entitled to wages because the employment contract had never been terminated. Then she submitted a claim for wages to the Sub-district Court, whereby she limited her wage claim to 1 January 2015, because she had no longer been available for work after that date. She argued that, as a result of the frequency of the calls and the periods she had worked, the on-call contract had turned into an employment contract for an indefinite period with a regular number of working hours.
The employer argued that the employee was dismissed in February 2013 and that, in the event it would be different, the employee was estopped from claiming further wages by now. In an interim decision the Sub-district Court ordered the employer to prove that the employee had been dismissed and finally allowed the employee's claim because the employer failed to provide the evidence.
The wage claim was based on the average number of hours the employee had worked in the second half of 2012. The employer's appeal to estoppel was rejected because there was no evidence of special circumstances justifying the employer to believe that the employee would no longer claim wages nor that the employer would be unreasonably disadvantaged because the employee did not claim her wages until after three years.

On appeal, the employer claimed that the Sub-district Court had wrongly assumed that there was an on-call contract, whereas the employee had stated that there was an employment contract for an indefinite period with regular working hours, which the employer had acknowledged. The Court of Appeal agreed. Since, therefore, the Sub-district Court had made a judgement beyond the ambit of the parties' legal dispute, the Court of Appeal re-assessed the employee's claim.
On appeal, the employer no longer claimed that there had been a dismissal, so that the Court assumed an ongoing employment contract. The Court ruled that the cause of not working lied in the control of the employer, because it was the employer who had stated that the employee was released from service and, for that reason, also was the person who had left uncertainty about the further progress of the employment. The Court nevertheless rejected the employee's wage claim, because she had failed to react in any way at all since the incident in February 2013, had not appeared at work and had never claimed any wage payment.
Due to the significant lapse of time and the fact that the employee’s February 2016 letter showed that she deliberately had not even made any attempts, the employee had not demonstrated the required willingness to perform the agreed work.


The judgment of the Court of Appeal is interesting, because currently many employees do not or cannot work as a result of the government measures taken to prevent the spread of the corona virus. Among them many employees who started their employment with an on-call employment contract, but who have already been working for a long period and, in practice, also work with a certain frequency, so the question is whether there is still an on-call contract and, if so, what are the consequences.
Even though employers may also have 90% of the labour costs for on-call employees subsidised under a temporary emergency measure (NOW), not all employers will actually continue to pay the on-call employees.
Can these employers also counter wage claims with the argument that the employees did not show their willingness to contest the work agreed? In our opinion, employers should be very careful in drawing conclusions from this Court ruling. Indeed, there are various reasons why it might not be possible to rely on this judgment.
In principle, these employees (with the exception of some rare CAO derogations) are entitled to wages as soon as the first six months of the employment relationship have expired, even if they did not work. They can base the amount of their wage claim on the presumption, possibly to be rebutted by the employer, that the scope of the work will be deemed to be equal to the average scope of the work in any period of three months to be chosen by the employee.
The obligation to offer a fixed scope of employment did not play a role in the judgment of the Court of Appeal, because this obligation did not arise until 1 January 2020 and because the parties themselves assumed that there no longer was an on-call contract. This may play a role, however, for employers who currently do not call-in their on-call employees. If the on-call contract had lasted for over twelve months and if no offer was made for a fixed amount of work, the employee will have a wage claim based on the average scope of work over these twelve months, which wage claim will not depend on demonstrating the willingness to perform the work agreed.
Furthermore, in 2004 the Supreme Court ruled that despite the absence of the willingness to perform the agreed work, a wage claim may still exist if the work was not performed through a cause for which the employer should reasonably be held responsible.
Finally, the Court of Appeal attaches importance to the fact that the employee has deliberately waited with her salary claim for as long as three years. Wage claims of on-call employees who are not paid because the employer has no work for them as a result of government measures to combat the corona virus will generally not take that long.

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