In January, the District Court Noord-Nederland ruled that an employee who suffered serious injury to his wrist and hand while making fireworks in his own time had not acted with intent. The employee is entitled to pay.
Facts
The employee had worked for more than twenty years as a Roof Tiler for the employer. On 8 November 2020, he attempted to make gunpowder in his shed, something he had done before. While mixing the substances, an explosion occurred, causing serious injury to his wrist and hand. As a result, he became fully unfit for work and reported sick.
As of 29 December 2020, the employer stopped paying his wages. The employee asked the subdistrict court to order the employer to continue paying him.
Ruling
By law, a sick employee has no right to pay if the illness was caused by their own intent. The subdistrict court held that the phrase “if the illness was caused by their own intent” should be understood as not referring to intent in the criminal-law sense. The employee stated he had wanted to make fireworks. It was not shown to be plausible that, in doing so, he intended to injure his hand. There was therefore no intent, and the employee is entitled to pay.
In addition, the so-called immediacy requirement had not been met. As soon as an employer suspects there may be grounds to withhold pay in whole or in part, it must inform the employee immediately. If the employer fails to do so, it may not (partially) stop paying wages. In the subdistrict court’s view, 29 December 2020 was too late, since the employer should reasonably have had that suspicion as early as 20 November 2020.
In this summary injunction case, however, the subdistrict court ruled that the employer only needs to pay 70% of wages, even though the employee is entitled to 100% of his pay during illness under the applicable CLA. According to the subdistrict court, it could not be ruled out that, in potential full proceedings on the merits, it would be found unacceptable, by standards of reasonableness and fairness, to require the employer to pay wages in full.
For the full ruling, click here (in Dutch).
Questions about the above? Please contact one of Sørensen Advocaten’s employment lawyers. Call: +31 (0)10-2492444
