Claim for Overtime Payment was Rejected because the Employee should have Asked for it before

An employee's claim for overtime pay was rejected because he had failed to earlier complain to the employer that not all of his overtime had been paid. According to the Court of Appeal, the "duty to complain" also applies in employment law, although it should be used with moderation.

In November 2018, a bar establishment was confronted with claims from an employee who had had been working at the establishment as a waiter from September 2012 till January 2017. In a letter, the employee's lawyer accused the employer of structurally having disregarded the CLA by placing the employee incorrectly on the salary scale, failure to pay the public holiday bonus, failure to implemented structural wage increases, failure to remunerate incentives and by having the employee stay for an extra hour after closing time in order to clean up, without being paid for it.
When the Sub-district Court granted only a minor part of the claims, the employee lodged an appeal to the Court of Appeal.
An important part of the claims concerned unpaid overtime. The employee argued that, although overtime was stated on the pay slips, a significant part of the overtime worked by him, in particular consisting of work performed after closing time, was not visible on the pay slips and had not been paid. The employer and the employee agreed that the employee had to be present one hour and fifteen minutes prior to opening time in order to carry out preparatory work. The employer also paid the overtime allowance for these hours. The employee stated, however, that he had also worked an average of two hours and twenty-five minutes after closing time. According to the employer, however, no extra work had been performed later than 15 minutes after closing time. It’s true that the employee quite often stayed later to have a drink with his colleagues, which happened with the employer’s permission. But, according to the employer, the finishing work, such as cleaning up bottles and sweeping the floor, was mostly done during the last opening hours, when most guests had departed.
In his defence against the claimed overtime compensation, the employer argued, inter alia, that the employee could not claim the overtime compensation because he had not objected in time to the fact that the hours he said to have worked after closing time were not compensated. The employer invoked a legal provision that is included in the part of the Civil Code that relates to basic contract law, and thus not to specific employment law. According to this provision, a creditor may no longer invoke an instance in non-performance if he/she does not lodge a protest with the debtor within a reasonable time of the date he/she discovers the defect, or could reasonably be expected to discover it.
The Court of Appeal first and foremost, stated that it is controversial whether this so-called "duty to complain" also applies in employment law.

According to case-law of the Supreme Court, the duty to complain shall apply to all contractual obligations, but it should always relate to unsatisfactory or inadequate performance and not to other types of non-compliance with contractual obligations.
The duty to complain serves to protect the debtor against late and thus hardly disputable complaints and against claims that he/she no longer needs to be prepared for after a while.
According to the Court of Appeal, the duty to complain also applies in situations in which there is an instance of non-performance of the employer that is clearly apparent to an employee, but in employment law the duty to complain should be used with moderation, both for employee protection and because of the mandatory nature of many statutory provisions. The Court of Appeal was of the opinion that the employer's appeal to the duty to complain was successful in this case. To this end, the Court of Appeal considered that there was no situation in which the employee had only discovered afterwards that he had been entitled to compensation for overtime. After all, part of the overtime had been paid. These overtime hours had been stated on the pay slips and the employee had also received these pay slips. And it was not about incidental unpaid overtime hours that the employee might have overlooked either, but about structural overtime. Therefore the employee should have complained before about the unpaid overtime hours.
According to the CLA, these hours should also have been compensated in the form of additional time off and payment would only be an issue if compensation in the form of additional time off would not be possible. By not complaining earlier, compensation in the form of additional time off had become impossible.
Therefore, the Court of Appeal rejected the claim for overtime payment.

The effect of the duty to complain as protection for the employer against late wage claims is controversial. The duty to complain is regulated in the general contract law rules. Employment law is part of contract law, but constitutes a special part of it because of the background of employment law, namely that the employer and the employee are no equal parties and that the employee shall be protected against the employer as compensation for this inequality. The question is therefore whether the duty to complain should also be applicable in employment law.
As the Court of Appeal itself already indicated, there are diverging views on this issue among employment law lawyers as well as in case law. The Amsterdam Court of Appeal assumes that the employer can invoke the duty to complain, but that the invocation should be used with moderation then.
The Supreme Court has not yet taken a position on the application of the duty to complain in employment law. It is therefore to be hoped that the employee in the above case will lodge an appeal in cassation, so that the Supreme Court can give its views on it.

By the way, the Court of Appeal reached the same decision in the cases of three other employees of the same employer, who also argued that they were still entitled to overtime compensation.