Has Suitable Work become Stipulated Work?
A discussion of the judgment of the Subdistrict Court of
Eindhoven dated 10 July 2008, LJN BD 6908
Stipulated Work
An employee is entitled to salary if he does not perform the
stipulated work due to occupational disability because of illness.
The stipulated work is the work that the parties have explicitly
agreed upon. An employee who performs modified duties within the
scope of reintegration therefore keeps his entitlement to salary,
because he is not performing the stipulated work due to
occupational disability. The obligation of the employer to continue
payment of salary applies during a period of 104 weeks. If after
104 weeks an employee is not able to perform the stipulated work
and becomes disabled once again during the modified duties due to
other symptoms, he cannot claim continued payment of salary. After
all, the first period of disability still continues and the 104
weeks of the obligation to continue payment of salary have
expired.
The Facts in the Judgment
The female employee worked for a temporary employment agency in
the position of call centre employee. Due to a burn-out she dropped
out of work on 18 July 2005. On 29 May 2006, the employee started
performing suitable work. In July 2006 the company doctor declared
her fully fit for work in the modified duties. She was, however,
still unfit for work for the stipulated work. In March 2007 the
employee had symptoms of her wrist, as a result whereof she dropped
out of work for a longer period as of April 2007. On 15 July 2007
her employer terminated the payment of salary with the notification
that the waiting period of 104 weeks, during which he had to
continue paying the salary to the employee pursuant to Section
7:629 subsection 1 of the Dutch Civil Code, had ended. The employee
claimed continued payment of salary. She argued that the waiting
period of 104 weeks had been interrupted, because in July 2006 the
company doctor had declared her fully recovered. The employee was
also of the view that the waiting period had been interrupted
because the modified duties must be regarded as the stipulated
work.
The Judgment of the Subdistrict Court
The Subdistrict Court found for the employer and denied the
employee's action to recover back salary. The Subdistrict Court
emphasized that the employee had not fully recovered in order to
perform the stipulated work as a call centre employee, and
furthermore stated with regard to the interruption of the waiting
period that the stipulated work had neither explicitly nor tacitly
been changed. The Subdistrict Court emphasized in this respect that
a tacit change of the employment agreement is not to be assumed
easily. In the event of acceptance of suitable duties the
employment agreement will continue to exist unimpaired, as a result
of which the waiting period of 104 weeks is not interrupted.
Therefore, as a result of the above the employee is not entitled to
salary anymore after 15 July 2007.
Tips:
- Make clear arrangements regarding the status of the
suitable duties that the employee carries out during
occupational disability. This may prevent problems and
discussions regarding the stipulated work and the duration of
the obligation to continue payment of salary.
- If the parties agree that the suitable work becomes
stipulated work, this must be agreed explicitly. A tacit change
of the employment agreement may not be assumed easily.
- Be alert to the fact that after a waiting period of 104
weeks, an employer is not obliged to continue payment of salary
anymore, if the incapacity for work still continues and the
employee once again drops out ill. This does not change if
during the performance of suitable duties the employee drops
out due to other symptoms.