Traineeship Agreement of BBL-student is in fact an Employment Contract

An employer who had entered into a traineeship agreement as well as into a practical training agreement with a BBL-student who had prematurely terminated her education, had to pay the student compensation because the traineeship agreement was an employment contract and because the termination had not met the requirements laid down by law for termination of an employment contract.

In the context of a three-year training to become a dental assistant through the vocational guidance pathway (BBL), a student had started working at a dental practice. The dental practice was a recognized training company. A practical training agreement was concluded between the educational institution, the dental practice and the student. The contract ran from August 1, 2018 until July 31, 2021. In addition to the practical training agreement, the dental practice also entered into a traineeship agreement with the student, also expiring on July 31, 2021. Under this traineeship agreement, the student was entitled to a salary of EUR 1,594.20 for 38 hours per week. Even after 31 July 2021, the student continued working because she had not yet completed her studies, but on 31 August 2021 she reported ill.
By letter of November 1, 2021, the dental practice informed the student that the traineeship agreement would expire on November 1, 2021 and that there was no intention to enter into an employment contract with her. In November, 2021, the student quit her studies. On November 16, 2021, she was officially disenrolled.
The student did not agree with the termination of the agreement.
In her opinion, there was a employment contract that had not legally been terminated by the dental practice. According to her, the dental practice also had failed to comply with its reintegration obligation by not processing the sick report. The dental practice defended itself by arguing that there was no employment contract, since no productive work had been performed and that the work had always been performed under the supervision and instructions of the dentist.

The Sub-district Court, however, held the opinion that, actually, there was an employment contract. According to the Sub-district Court, the guidance by the dentist and the fact that there was still a learning situation were related to the student's BBL education. According to the Sub-district Court, there was no evidence that the student's activities wholly or largely focussed on acquiring knowledge and that these activities were in the interests of the study programme. The student independently worked at the reception desk, placed orders, made appointments, opened and closed the practice and performed cleaning activities. Although the dental practice stated that these activities were monitored, it was not clear for the Sub-district Court what this monitoring included. WhatsApp messages, submitted by the student, clearly showed, according to the Court, that the student was counted on for the daily work and that she replaced other assistants during their absence. Thus, it was real work that the dental practice benefited from. The fact that the student was not yet qualified for all the actions of the other assistants was of no relevance.

From this point of view, the Sub-district Court made the following decisions:

• In the absence of a legally valid notice as to whether or not the employment contract would be continued after the agreed duration, the employment contract is deemed to have been extended for a period of one year.
(The law lays down: for the originally agreed duration, but shall not exceed one year.)
• Since -contrary to common practice- no resolutive condition had been agreed in the event of termination of the education and the resulting termination of the practical training agreement and since the possibility of early termination had not been stipulated, the agreement was terminated in breach of the law.
• The student is therefore entitled to the transitional allowance and to a fixed compensation equal to the wage over the term that the employment contract would have lasted if it had ended by operation of law, i.e. till July 31, 2022.
• Due to termination of the employment contract without observing a notice period and without the consent of the employee, the UWV or the Sub-district Court, a fair compensation is also due, but it will not be granted because any damage suffered by the student has already been sufficiently compensated by the transitional allowance and the fixed compensation. The Sub-district Court pointed out that one can speak of an “apprenticeship contract” that would have a defined period and that would normally end at the end of the education.

According to the case law of the Supreme Court, it is the question of whether an traineeship contract is an employment contract or not that shall determine whether the activities performed in accordance with the parties’ intention are so clearly focused on expansion of their own knowledge and experience (also in view of school completion), that they cannot be regarded as an agreement whereby one party undertakes to perform work for the other.
It comes down to whether the performance of the work predominates the interest of the training that is followed or whether the primary objective of the work performance shifts to active contribution to the realization of the company’s primary objective.
The fact that it is quite common in the case of BBL-students to enter into a practical training contract with the training institution and the student and into an additional employment contract -and not an traineeship agreement- with the student, did not really improve matters for the dental practice in the above case.