Legal Presumption of the Scope of the Employment Contract was Restricted after the Offer for a Fixed Number of Working Hours was Rejected

An employee who had twice rejected an offer for a fixed number of working hours could not retroactively claim wage payment for the period in which he had rejected the offer for a fixed number of working hours by invoking on the legal presumption on the labour scope

A payroll company placed taxi drivers at taxi companies, to do taxi work in the street for people who want to get out and enjoy nightlife, as well as for the transport of school children. One of the taxi drivers had been employed as an on-call employee since 2017. He only did the taxi work in the street. Since 2019, there has been a fixed-term zero-hours contract between the parties. Since the introduction of the Balanced Labour Market Act on January 1, 2020, the employer was obliged to offer the employee a fixed number of hours of work equal to the average number of hours worked over the previous period of twelve months after each on-call contract had lasted for twelve months,. It is the compulsory offer for a fixed number of working hours. The payroll company made its offer in April 2020 and once again in December 2020 for 44.69 and 26.20 hours per month respectively. On both occasions the employee rejected the offer. The reason was that he did not want to be assigned to the transport of school children. Since the employee had another job for two days a week, he did not want to work on weekdays.
Due to the Covid-19 pandemic, taxi work in the street had largely become at a standstill at the time. As of 1 May 2022, the parties still agreed that the employee would get a fixed working hours contract for 30 hours per month.
By letter of April 30, 2021, the employee asked the payroll company to pay wages for 42.5 hours per month with retroactive effect till March 16, 2020. He based this claim on the regulation in the law stipulating that the labour scope of an on-call employee shall, prima facie evidence, be equal to the average number of hours worked over a previous period of three consecutive months, which was the legal presumption on the labour scope. The employer refused to pay it, however, referring to the fact that the employee had twice rejected an offer for a fixed number of working hours.
When the Sub-district Court had to rule on the case, it stated first and foremost that, in 2012, the Supreme Court had ruled that the period of three months over which the number of working hours must be calculated, can also be calculated over a period in the past that is nonadjacent to the moment when the employee invokes the legal presumption. Therefore, the employee was allowed to claim wages from any point in time, based on the average number of hours worked in a three-month period in a more distant past. The Sub-district Court also pointed out that the legislative history shows that an employee who rejects an offer for a fixed number of working hours can still invoke the legal presumption and, therefore, is allowed to claim a fixed number of working hours. The Sub-district Court was of the opinion, however, that this does not mean that, in that case, the fixed number of working hours can be claimed over a period preceding the moment when the legal presumption was invoked.
The Sub-district Court therefore rejected the wage claim until April 30, 2021, the day when the employee invoked the legal presumption. It granted the employee's wage claim as of April 30, 2021. Thus, it based the scope of the employment contract on the three-month period immediately preceding the moment when the government laid down the first Covid rules.

An on-call contract such as a zero-hours contract derives the legal effect as intended by the employer (only pay wages if work is done) by the grace of an exception to the statutory provision with the general rule that an employer has to pay wages to its employee even if he/she has not worked, unless the cause for not working lies within the employee's control. This exception requires a written agreement in which “no work, no pay” has been agreed. The exception also exclusively applies to the first six months of the employment contract. For that reason, the employee is also entitled to wages after these six months if/she he does not work because he/she was not called on by the employer. The amount of an employee's wage claim may then be based on the average number of hours in which the employee has worked in any three-months’ period in the past, unless the employer can prove that this particular period would not be representative for calculating the amount of the wage claim.
And that’s not all. Since 1 January 2020, a new rule came into force which stipulates that after twelve months the employer shall always offer the employee a fixed number of hours equal to the average number of hours worked in those twelve-months. If the employer fails to do so, the employee is, in any case, entitled to wages during that average number of hours, even if the employee has never indicated that he would like to work more hours.

In practice, it is quite common that employees reject an offer for a fixed number of hours because they do not want to be obliged to come to work at moments inconvenient for them. The question then arises what it really means for the employee's right to claim payment of wages if he feels that he is not sufficiently called on.
Where it has been established that the employee can still invoke the legal presumption, the Sub-district Court in the above case indicated that rejecting an offer for a fixed number of hours does have consequences for invoking of the legal presumption. The Sub-district Court held the opinion that a next legal presumption can only be invoked from the moment the employee invokes it. So future-oriented only and without retroactive effect. The fact that rejecting an offer for a fixed number of working hours has consequences for the possibility to invoke the legal presumption seems to be quite legitimate.
Yet, a different outcome would have been perfectly conceivable.
The question arises whether the employee could not have expected that the offer for the fixed working hours would also relate to work that the employee had done up to the Covid pandemic and at the times when he had always performed the work. It is a matter of interpretation of the employment contract. Was it the agreed work? And if so, could the employee, as a good employee, be expected to agree to do the transport of school children, on other days and times? The Sub-district Court did not pay any attention to these questions. Maybe, because the employee had not raised them. But if he had, a different outcome would not have been inconceivable.