Wage Payment Continued to Employee who Reports Sick due to a Labour Dispute

After the UWV had imposed a wage sanction on the employer, the employer had to continue to pay wages to an employee during his third year of illness. In this third year of illness, the employee was entitled to continued payment of 70% of the wages. After the third year of illness, the UWV deemed the employee fully fit for his own work, but he did not resume work because the employer had suspended him. During that period, the employee was entitled to payment of the full salary.

An employee of a sales organisation for car parts reported sick on April 26, 2016.
After more than a year, the occupational physician considered him fully fit for work again. Within four weeks of resuming work, however, the employee reported a declining labour capacity. He also requested a second opinion from another occupational physician. The other occupational physician noted that the limitations in his personal and social functioning had considerably increased and diagnosed that medical recovery and sustainable reintegration would not be possible until the problems in the employment relationship would be resolved. The first occupational physician, however, maintained his earlier opinion that the labour incapacity was not the result of illness.
When the employer suspended the employee, the employee declared that he was prepared to perform work in accordance with the options available to him in the context of his labour incapacity. In response to the employee's application for a WIA-benefit (work and income according to labour capacity), the UWV decided to impose a wage penalty on the employer. During the third year of illness, mediation took place, but without any result.
At the end of the third year of illness, the UWV decided that the employee was fully fit for his own work and that he was, therefore, not entitled to a WIA-benefit. Then the employer tried -in vain- to terminate the employment contract in consultation with the employee. At the employer’s request, the Sub-district Court finally dissolved the employment contract as of December 31, 2021.
Then a dispute arose between the employer and the employee about the obligation to continued wage payment during and after the third year of illness. On appeal, it was up to the Court of Appeal to rule on the case.
In the third year of illness, the employer had continued to pay 90% of the employee’s final salary, which, under the applicable CLA, was in accordance with the employer's obligation for the first 104 weeks, with the exception of the first six months of labour incapacity where the full salary had to be paid. The employer, however, was convinced that he was obliged to continue to pay the statutory percentage of 70% only in the third year of illness, whereas the employee claimed continued payment of the full salary, arguing that in that year the continued payment of the salary had nothing to do with his illness, but with the suspension. The Court of Appeal said that the employer would have been obliged to pay 70% of the wages only, because the primary cause of not working was the labour incapacity and not the suspension. And this did not take place until after de employee had reported ill.
After the first 104 weeks of illness, the employer was no longer obliged to continue to pay 90% of the wages. Yet, since he had failed to claim repayment of 20% of the wages during the proceedings before the Sub-district Court, the employer’s claim for reimbursement of the excess wages was still rejected.
As for the period following the end of the third year of illness, the Court of Appeal decided that the employee was no longer incapacitated for work. After all, the UWV had declared him fully fit for his own work. This implied that, from that moment onwards, the employee was entitled to continued payment of his full salary. The Court of Appeal rejected the employer's defence that the employee had not declared his willingness to perform the agreed work.
The employee's earlier declaration of willingness to perform work in accordance with the options available to him in the context of his labour incapacity, should also be understood by the employer as a declaration of willingness to perform the agreed work once the employee would no longer be labour incapacitated. The Court of Appeal pointed out that, after the UWV had declared the employee recovered, the employee had never been called on by the employer to come to work and that the employee had never been reassessed by the occupational physician, even though the employee had reaffirmed at the time that he was still labour incapacitated. Moreover, from the fact that the employer had tried to terminate the employment contract with the employee, the employee was justified to deduce that the employer was not interested in work resumption.
It was of small consolation for the employer that the Court of Appeal reduced the statutory increase for late wage payment, set at 25% by the Sub-district Court, to 10%.

Under the law, an employee who is unable to perform the agreed work due to illness is entitled to continued payment of 70% of the wages. On the basis of agreements in a CLA or in an employment contract, this percentage is often temporarily higher. An employee who does not perform the agreed work because he has been suspended by his/her employer, on the other hand, is entitled to continued payment of 100% of the wages. In a case in which the employee does not work because of an employment dispute, it may be unclear whether the employee is unable to perform the agreed work due to illness, in which case he/she is in principle entitled to 70% of the wages, or whether there is another reason for not working, not lying within the control of the employee, such as a suspension or the fact that a mediation process to resolve a labour dispute is still ongoing, in which case the employee is entitled to his/her full salary).