Supreme Court of the Netherlands, 20 September 2024, ECLI:NL:HR:2024:1278
In this ruling, the Supreme Court clarified how the statutory duty to complain applies to outstanding wages. The central question was whether an employee can still claim outstanding wages if they only raise the issue a considerable time after the end of their employment.
Facts
The employee started working for the employer in 2011 as a café worker. His employment ended on 11 June 2018. In November 2018, a few months after the end of his employment, a wage claim was filed on his behalf. The employee argued he had structurally worked an extra hour after closing time to tidy up, but that these overtime hours had never been paid. He claimed payment of these hours, plus the statutory increase.
The employment contract fell under the Hospitality Industry CLA, which provides that overtime is, in principle, compensated with time off. At the end of each calendar year, it is determined whether overtime hours exist, which must then be compensated within thirteen weeks at the latest. If this is not possible, payment must follow within four weeks.
The subdistrict court rejected the claim because the employee had not put forward sufficient grounds to be admitted to provide evidence. The Court of Appeal also rejected the claim, but on the basis of Section 6:89 of the Dutch Civil Code. According to the Court of Appeal, the employee had complained too late. Because it concerned structural, recurring overtime, the employee should have complained as soon as he saw on his payslip that payment was not forthcoming. By failing to do so, the employer was effectively denied the opportunity to still compensate in time or make organisational adjustments.
Appeal to the Supreme Court
In the appeal, the employee argued that the duty to complain does not apply to wage claims, and only applies to defective performance, not to a complete absence of payment. The Supreme Court rejected both arguments. The duty to complain, in principle, applies to all obligations, including those arising from an employment contract. Even (partial) non-payment of wages falls under this: that constitutes defective performance, not a complete absence of performance.
Although the duty to complain applies, the Supreme Court ruled that the Court of Appeal had not sufficiently reasoned why the employee could be expected to complain earlier in this specific case. The employee had argued, among other things, that he felt intimidated and that working hours were not recorded. The Court of Appeal should have weighed these circumstances. The ruling was quashed and the case referred back to The Hague Court of Appeal.
Conclusion
This ruling emphasises that employees must complain in good time about wage claims. If they fail to do so, their claim may lapse. At the same time, a court must remain alert to circumstances that hinder timely complaining. It is important to follow case law on this point. Do you have questions about wage claims or the duty to complain? Our employment lawyers are ready to help.
Click here for the full ruling (in Dutch).