Employee who Received Sickness Benefit from Self-Insurer Wrongly Lodged a Wage Claim to the Sub-district Court

An employee who was ill after his his employment contract had expired, was entitled to a Sickness Benefit. Since the employer was a self-insurer under the Sickness Benefit Act, it was the employer who had to pay this benefit. The employee who believed that he was underpaid, wrongly claimed wage payment from the Sub-district Court.

Since 15 March 2021, an employment agency had seconded one of its agency workers as a driver at a transport company. On 12 April 2021, this driver had an occupational accident. While delivering goods at a supermarket, a wheeled container on the lorry’s tailboard started moving and fell down on the employee. Ever since, the employee had been incapacitated for work. The transport company had acknowledged liability for the occupational accident.
On September 13, 2021, the employment contract with the temporary employment agency ended by expiration of the agreed term. As a result, the employee was entitled to a Sickness Benefit under the Sickness Benefit Act. Since the temporary employment agency was a self-insurer for the Sickness Benefit Act, the benefit was paid by the agency. The amount of the Sickness Benefit was calculated on the basis of the daily wage that the employment agency had calculated by the UWV.
From 3 October, 2021, to 21 November, 2021, the employee went on holiday to Suriname.
By letter of 3 January, 2022, the UWV informed the employee that his Sickness Benefit would be reduced by 5% over that period because the employee had failed to inform the employer that he would stay abroad at a different address. The employee had been given the opportunity to respond to the intended reduction of the benefit, but he had failed to do so.

Then, via summary proceedings at the Sub-district Court, the employee claimed payment of the wages as of 16 September, 2021, stating that the employer had stopped the wage payment without a proper reason.
As for the Suriname holiday, the employee declared that he had already supplied this information during the intake interview in March 2021 and that the occupational physician did not have any objections to it. The amount of the wage as of September 16, 2021, would also be incorrect, since it was based on 37 hours per week, whereas, under the CLA for temporary agency workers, the employee would also be entitled to the overtime bonus during his labour incapacity, so that 42.8 hours per week should have been paid out.

The Sub-district Court rejected the employee's claims, however. As a self-insurer, the employer was, indeed, obliged to pay the sickness benefit to the employee but, once the employment contract had expired, there was no longer any wage payment. Therefore, the employee should submit his objections to the amount of the Sickness Benefit to the UWV.
It is the UWV that makes the decisions about the Sickness Benefits. The Sub-district Court pointed out that the employee could lodge an objection against the decision to impose a measure (i.c. the 5% reduction of the Sickness Benefit) with the UWV within six weeks, and that he could raise objections and, if necessary, he might lodge an appeal with the Administrative Court.
Despite the rejection of his claims, the employee was not ordered to pay the employer's costs for the proceedings, however. The reason was, among other things, that the employer had failed to notify the employee regarding the expiration of the employment contract one month before its termination and because some pay slips regarding the payment of the Sickness Benefit incorrectly specified “Wage” instead of “Sickness Benefit”. As a result, the employer had contributed to the employee's confusion and misunderstanding that had resulted in incorrectly bringing an action.

The system of self-insurance in the Sickness Benefit Act is such that the self-insurer pays the benefit on behalf of the UWV. The decisions about the Sickness Benefit, however, are made by the UWV (even if it is made at the request of the self-insurer). When the employee does not agree with the decision, he should object to the UWV decision.
On the basis of the employee's objection, the UWV will then assess the correctness of the decision, made at the request of the employer. In case of disagreement with the decision on the UWV’s notice of objection, both the employer and the employee may lodge an appeal to the Court.
Usually, the benefit is paid without a decision to grant it. On request, the UWV will make a decision, so that also an objection can be lodged. Even if the employer fails to pay the benefit, bringing an action before the Sub-district Court is not the way forward.
The law provides that the UWV will still pay the benefit, after which the UWV will recover this benefit from the employer.
The system of self-insurance in the Sickness Benefit Act is rather complex and not always known to lawyers of employees. Of course, it is up to the employer to ensure that his employees know that their employer is a self-insurer for the Sickness Benefit Act and that they are informed about the consequences that this may have for them. Based on the above judgment of the Sub-district Court, this may be called into question for the employer.
Whether the employee can still lodge an objection with the UWV in this case is highly questionable. In any case, the term for lodging an objection against the UWV decision to reduce the benefit by 5% had been long overdue when the Sub-district Court judge rendered its verdict. If the amount of the benefit has been determined without a UWV decision, a decision can still be requested, against which an objection can still be lodged.