No Long-Service Bonus for Employee due to Interruption of the Employment

An employee, who would have worked for his employer for 40 years in 2024, was not entitled to the long-service bonus he would have received on that occasion under the CLA, because his employment had been interrupted by seven years in which he had worked for another employer. The fact that the years of service with this other employer had not been excluded for other colleagues did not alter this, because it was the result of an error by the employer, and because the employer had made it clear to the employee beforehand that these years of service would not be included.

In 1984, an employee had joined the Nederlandse Spoorwegen (the Dutch Railways) as a train driver. Since he mainly drove freight trains, he was assigned to the new NS Goods Transport Unit in 1994. In 1995, however, this unit was made part of NS Cargo.
In 2000, NS transferred the NS Cargo shares to Deutsche Bahn. The name of NS Cargo was then changed into Raillion. Until 1 March 2007, the train driver worked for Raillion, but after his application for a job he started working for NS Reizigers (Passengers) in 2007.

In 2008, NS Reizigers informed the employee in writing of the recommencement of his employment as of 1 March 2007. Under the NS Reizigers scheme, the years at Raillion shall not be taken into account for the calculation of the entitlement to jubilee benefits, but the years in which the employee had been employed by parts of the NS group in the past shall. Therefore, according to NS Reizigers, the service period did not start in 1984 but, taking the seven years of working outside the NS group into account, in 1991. That is why the employee had received an anniversary payment for 25 years of employment in 2016.
The NS CLA stipulates that an employee who has been employed for 40 years shall be entitled to a bonus amounting to one month's salary. To this end, however, the employment has to be continuous and uninterrupted, although the employer has the option to deviate from this.
In 2020, the train driver heard that a number of colleagues at another location had received a long-service benefit in which the Raillion years of service had been included. When the employee inquired about this with the employer, the employer acknowledged it, but he also stated that an error had been made and that other employees can assert no rights from it.
Subsequently, the employee asked the Sub-district Court to declare that the employee will have completed a 40 years’ service in 2024 and that, therefore, he will be entitled to a bonus. The Sub-district Court rejected the claim, however, because there will not be a period of 40 years’ continuous service in 2024. The employee did not accept this decision and lodged an appeal to the Court of Appeal. However, he was turned away there as well. CLA provisions should be interpreted in accordance with objective standards and, according to the Court of Appeal, an objective interpretation of the CLA provision meant that the seven years in which the employee had worked outside the NS group were not taken into account for the calculation of the years of service. According to the Court, there was no conflict with good employment practices or with the right to equal treatment of similar cases either. The employee had not demonstrated that other reasons than an error on the part of the employer played a role when the bonus was awarded to a number of colleagues. And there were no similar cases since, unlike the relevant colleagues, the employee had received a letter in 2008, explaining to him that the years of service at Raillion would not be taken into account for determining the entitlement to the jubilee bonus.

An employer may pay an employee an untaxed monthly salary once this employee has been in its service for 25 years or for 40 years. The employee could, therefore, have received the desired bonus untaxed. Nevertheless, it is striking that one month's salary has been the subject of litigation in two different bodies. Very likely, the reason for this lies in a feeling of injustice that arose when a number of colleagues appeared to have been treated by the employer in a different, more favorable way.
However, the principle of equality, as applied in administrative law, is not as such also applicable between an employer and an employee. Unequal treatment can, however, be conflicting with good employment practice. But even then the principle of inequality will always remain a difficult principle to base rights on. After all, the question remains when two cases are equal. The principle of equality does not entail that mistakes of the past should be repeated in the future.