The court ruled that an employer who failed to offer a fixed hours contract to its on-call worker, despite being legally required to, must continue paying wages. That the restaurant was closed during lockdown, and that the waitress refused to deliver meals, does not change this.
Facts
The employee had worked as a waitress for the employer since 2017, under an on-call contract.
The restaurant had been closed due to the coronavirus crisis since 15 March 2020 and, after reopening, closed again from 14 October. The employer repeatedly offered her the chance to deliver meals instead. She said she would not do so, since this was not her job – her contract specified “table service”, not “delivery”. The employer regarded this as a refusal to work and took the position that she was therefore not entitled to continued pay.
She claimed payment of unpaid wages, based on her average hours worked in 2019.
Ruling
Where an on-call contract has run for a year, the employer must, within a month, make an offer for a fixed number of hours. That number of hours must be at least equal to the average scope of work during that preceding year. For any period in which the employer fails to make this offer, or makes an offer that does not meet this requirement, the employee is entitled to pay for the hours covered by the missing offer.
Since the employer had failed to make such an offer, it owed unpaid wages. The fact that the employee refused to work as a delivery driver during the lockdown, and was not called in, does not mean she has no claim to pay. The restaurant’s closure falls within the employer’s own sphere of risk – and the employer had, incidentally, received NOW wage-subsidy support.
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
