After the parties had entered into a fixed-term employment contract three times, the employee, at the employer’s request, made one more trip to Germany. Since the employer failed to properly substantiate why this would be a separate freelance assignment, it can be assumed that the employee is employed by the employer on a permanent basis.
Facts
Since 1 May 2019, the employee had entered into three fixed-term employment contracts with the employer. On 27 October 2020, the employer informed him that his third contract would be his last, meaning it would not be extended past 1 December. Despite this, the employee made a trip to Germany for the employer on 6 and 7 December. He argued that, from that point on, a permanent employment contract had come into existence, and claimed payment of wages from 1 December 2020 onwards.
Ruling
The question was whether a permanent employment contract had come into existence between the parties from 1 December 2020. Both parties agreed that the employee had carried out this trip at the employer’s request. The employer argued, however, that the work had been carried out under a separate freelance assignment, which the employee disputed. He pointed out that he had no Chamber of Commerce registration number, and that an hourly rate of EUR 18.50 for this work was not realistic.
The subdistrict court ruled as follows. The employer claimed the parties had agreed that the employee would carry out assignments on a self-employed basis, and that this trip was one such assignment. It was then up to the employer to properly substantiate this, which it failed to do. Nothing showed that any such arrangement was made, or what its terms were. Especially since the parties had an interest in agreeing a different legal status after previously having an employer-employee relationship, one would expect concrete evidence of this to exist.
The subdistrict court ruled that the employee was entitled to assume the employment contract had continued after 30 November 2020. He therefore has a permanent employment contract. His wage claim was granted.
For the full ruling, click here (in Dutch).
Questions about a trip to Germany resulting in a permanent contract? Please contact one of Sørensen Advocaten’s employment lawyers. Call: +31 (0)10-2492444
