Probationary Period Stipulation Agreed Verbally
A discussion of the judgment of the Court of Appeal of
Arnhem, 13 October 2009, LJN: BL6920
The
Facts
The employee joined the employer as of 20 February 2006 in the
position of all-round electrician for a term of six months. The
employer and the employee made verbal arrangements about the date
of taking up employment, and the employment conditions, but there
is no written agreement signed by both parties. One month after the
electrician took up employment, the employer gave notice of
termination of the employment agreement with immediate effect. The
employer presumed that a probationary period of one month had been
agreed, and that he could therefore terminate the employment
agreement within that period. According to the employer, this
probationary period had been agreed during the interview that had
been held with the employee shortly before this entering the
employment. However, the employee took the position that the
probationary period had not been agreed in writing and that notice
had been given without observing a notice period. He claimed back
wages, among other things. The Subdistrict Court decided in favor
of the employee, whereupon the employer appealed.
The
Judgment of the Arnhem Court of Appeal
- Requirement of being in writing of a probationary period
stipulation (Section 7:652 of the Dutch Civil Code)
The Court of Appeal held first and foremost that a probationary
period must be agreed in writing, on pain of nullity. The proof of
a probationary period agreed verbally - if such proof could be
furnished at all - is therefore insufficient to be able to assume
for a fact that a probationary period was agreed. The underlying
idea of this is that the employee must be convinced of it that the
entry into a probationary period stipulation is of essential
importance to his legal position.
- Probationary period in
CAO and requirement of being in writing
The argument of the employer that a probationary period would
have been agreed by the mention thereof in the Collective Labor
Agreement (CAO) in force between the parties did not hold either in
this case. To begin with, the Court of Appeal considered that it is
indeed imaginable that the requirement that a probationary period
must have been agreed in writing has been fulfilled if such a
stipulation is included in a CAO in force between the two parties.
However, the Court of Appeal emphasized that in such a case the
parties must have agreed expressly that the CAO applies to the
employment agreement. There was no question of such agreement in
this case. It is true that witnesses have declared that the
employer had drafted a "fixed-term contract" at a certain time, but
the Court of Appeal considered that a unilateral written recording
can only be effective once it has reached the employee. However, in
the present case there is no evidence that the contract was sent by
post or handed over to the employee. The communications allegedly
made during the interview by the employer - such as "we work in
accordance with the CAO" and "the arrangements of the employment
agreement run in accordance with the line of the CAO" - are
insufficiently specific to assume that the applicability of the CAO
to the employment agreement was expressly agreed. On the basis of
the foregoing, the Court of Appeal arrived at the conclusion that
the requirement of being in writing, as envisaged in Section 7:652
of the Civil Code, had not been fulfilled.
Therefore the Court of Appeal concluded that it has not been
established that a legally valid probationary period was agreed
between the parties. The lack of a legally agreed probationary
period entails that the agreement had been terminated without due
observance of a notice period; after all, the employment agreement
had been entered into for a term of six months, without the option
of premature termination. By giving notice of termination of the
employment agreement as of 20 March 2006 without a notice period,
the employer has therefore failed to terminate it properly. This
makes the employer liable for damages. The employee lays claim to
wages for the time the employment should have continued had it been
terminated properly, in this case until 20 August 2006. However, it
is possible to moderate such a claim if the parties have not agreed
on a notice period. The Court of Appeal used this power to moderate
in this case, because the employee had found a new job about three
months after the employer had terminated the employment agreement.
The Court of Appeal therefore moderated the claim to the wages over
a period of three months.
Points of Attention:
- This ruling proves once again how important it is to agree
on a probationary period stipulation in writing. A probationary
period stipulation agreed otherwise than in writing is not
legally valid, and this may lead to termination without
observing the notice period (with all the related financial
consequences). Employers are therefore strongly recommended to
set out a probationary period in a written employment agreement
that is signed by both parties.
- Employers should also bear in mind that a probationary
period stipulation included in a CAO is not applicable just
like that. In order to meet the requirement of being in writing
by referring to a probationary period in a CAO, the
applicability of that CAO to the employment agreement must have
been agreed expressly between the employer and the
employee.