Working in the Netherlands

The pizza chef’s employment contract was terminated – may he be prevented to work at another restaurant? #dutchlabourlaw

Extract

Mr Vaničková was employed by a new pizza restaurant in Rotterdam. The employer and employee entered in an employment contract for a fixed term.

The Employee entered the Employer’s employment with effect from 1 February 2014 in the position of Pizza chef.

The weekly hours of work will amount to 40 hours (1 FTE). The work shall be carried out during day and/or evening, any day of the week. Working hours may be spread over more than 5 days a week.

If the work so demands, the Employee shall carry out his/her work beyond and outside working hours given. This has been taken into account when the Employee’s salary was determined, so the Employee cannot claim payment for overtime.

The employment contract has been concluded for a period of 6 months and ends on 1 August 2014 by operation of law.

The Employee is not permitted to work for another business in The Netherlands during the employment and during a period of six months following the of the employment.

On 30 June 2015 the employer informed Mr Vaničková that his service contract is not going to be extended.

The employee (plaintiff) demanded among other one month salary as compensation because the contract was not renewed, overtime compensation and that the restrain of trade provision must be declared invalid.

Finding

• The court found that in terms of section article 7:668 of Dutch Civil Code notice of the continuation/ non continuation must be done in writing a month in advance before end of the fixed contract,
• To inform the employee verbally that the contract will be ended is not sufficient and Court awarded one month salary to the employee (plaintiff).
• The employer agreed that the restrained of trade provision is invalid because the employer could not provide reasons in writing why the service or operating interest of the employer would seriously be jeopardized if the retrain of trade is not enforced.
• The employer must provide prove that additional remuneration was agreed on for the overtime worked.

Good to know

• The regulations of Dutch Labour Law do not require the employer to provide a written contract of employment,
• However, it is good to know that the absence of a written contract usually is advantageous for the employee e.g. the “all-inclusive overtime” remuneration as discusses in the case,
• The contract of employment may be concluded in the Dutch language, or another language,
• In the case of Multi-National Corporations it must insured that an employment contract is adapted in line with Dutch Labour Law,
• According to Dutch law, an employee should not work more than eight hours per day or 40 hours per week,
• Depending on the industry, a maximum of nine hours per day and 45 hours per week could be the case, but no one is allowed to work more than 2.080 hours a year.
• In 2014 the Court of The Hague it was found that an employee with a “all inclusive“ stipulation in the employment contract is not entitled to overtime remuneration.    ECLI:NL:GHDHA:2014:1857 Instantie Gerechtshof Den Haag Datum uitspraak 10-06-2014.  Source
• Where an employer want to enforce a retrained of trade provision the employer must provide reasons in writing why the service or operating interest would seriously be jeopardized if the retrain of trade is not enforced.

Restraint of trade is a common law doctrine relating to the enforceability of contractual restrictions on freedom to conduct business

RECHTBANK ROTTERDAM

Case: 4406885 VZ VERZ 15-18217

Finding: 23 October 2015

Contact me! Andre Beukes LLM, Dutch Labour Law for managers

Tags: Restraint of trade, overtime, fixed contract, termination of contact, working hours 

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