Worked during two Days, but no Employment Contract

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Court of Appeal, Amsterdam, November 24, 2020,ECLI:NL:GHAMS:2020:3247


Since there was no agreement about the duration of the employment contract, a worker who had started working before the submitted written employment contract was signed did not work under a verbal employment contract.

A candidate had applied for the position of driver for a transport company.
On Friday 18 October 2019, an interview took place. Subsequently, the transport company sent an e-mail message, stating that he would be offered a contract on the basis of a specified wage scale, an additional € 70 for coffee, and a travel allowance. The offer further mentioned that the first month of the initial contract would be a probationary period beginning on Monday, October 21, 2019 at 12:00 PM. The driver actually started his work at this time, although he had not signed a contract yet. The contract was ready, but it had not been signed at the time because the driver had immediately started working.
On Tuesday, October 22, 2019, during the day, the driver received a written employment contract. It stated that the employment contract was entered into for a period of seven months with a one month probationary period and that the employment contract was not covered by a CLA. In the night of Tuesday to Wednesday 23 October 2019, the driver sent an e-mail to the transport company stating that he did not intend to sign the employment contract, because he did not agree that the CLA for professional road hauliers did not apply. The driver stated that, as a consequence, he would miss out on travel and subsistence allowance and on three holidays. Furthermore, the salary would be slightly more under the CLA. The driver spoke of an unfairly restrictive contract that already would deprive him of all of his rights in advance.
In the morning of Wednesday 23 October 2019, a meeting took place between the transport company and the driver. In this meeting, the driver stated that the probationary period in the employment contract was not legally valid, because a probation clause should be laid down before an employment may commence. In the end, the transport company indicated that it did not want to use the driver’s services any longer. Then, the driver announced that he would remain available to perform work and sent another e-mail message stating that there actually was an employment contract without a probationary period. Later that week, the driver sent an insulting e-mail message to the transport company, accusing the transport company of malpractice and stating that the unions, after he had contacted them, intended to investigate the transport company’s non-compliance with the CLA.
The driver also stated that he considered filing charges with the Public Prosecutor of deliberate non-compliance with the CLA, which according to the driver constitutes a crime.

The Sub-district Court rejected the driver’s claim for re-employment and wage payment, as well as the subsidiary claim in which the driver had claimed both compensation owing to the irregular termination of the employment contract and equitable remuneration. When the driver appealed to the Court of Appeal, it was this Court that had to rule on the question of whether an employment contract had been entered into and, if so, whether it included a valid probationary period.

First of all, the Court of Appeal stated that the driver had not accepted a number of essential parts of the written employment contract that was handed to him, such as the probationary period and the inapplicability of the CLA. The Court of Appeal’s conclusion was that, anyway, no agreement had been reached between the parties on the basis of the written employment contract. The Court of Appeal answered the question of whether oral agreement had been reached on the essential elements of the employment contract, such as the position, the salary, the commencement date and the duration of the contract, by anwering the question whether there had been an offer and an acceptance. On this question, the Court concluded that the duration of the employment contract (for an undefined or for a definite period) had not been discussed during the interview on Friday 18 October 2019. The transport company’s offer as it was included in the written contract had not been accepted by the driver and, later even, explicitly rejected. According to the Court, this implied that no employment contract had been created. According to the Court of Appeal, this employment contract had not arisen either as a result of the fact that the driver had worked for two days, since agreement on the basis for that work was lacking as well. Since no employment contract had been entered into, it had not been terminated either. Since the driver's claims were based on the existence of an employment contract and -as for the subsidiary part of the claims- on the termination thereof, the Court of Appeal rejected the driver's claims as well.


In its decision, the Court of Appeal does not address the Supreme Court’s judgment on 6 November 2020 with regard to the question of what role the parties’ intention plays in the question whether or not an agreement is an employment contract within the meaning of the law. It is certain that the Court of Appeal knew this decision. One of the judges who delivered the judgment was not only a judge, but also a Professor of Labour Law who wrote an annotation on this particular Supreme Court’s judgment prior to the date when the decision was delivered.
According to the judgment of the Supreme Court, the first thing Courts have to do is determining the content of the agreement on the basis of the parties’ mutual expectations, and subsequently determining, without taking the parties’ intentions into account, whether or not the agreement with the thus established content has the characteristics of an employment contract.

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