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By law, a probationary period may only be agreed upon when the employment contract exceeds six months, that is, six months plus one day. An employer fires an employee during the probationary period. Not exciting you might think, but was the probationary period legally valid? The district judge found that it was not, but why not?

The employment contract stated the following: “The employee shall enter into the employer's service (...) with effect from February 08, 2024. The labor contract is entered into for the duration of six months and ends on August 08, 2024.” 

The duration of the employment contract then effectively amounts to six months and one day, thus a valid probationary period according to the employer. However, the employee in question assumed that the employment contract had only been entered into for six months, as this was also literally stated in the employment contract, thus no valid probationary period. 

Because of the ambiguity in the provision, the court looked at the so-called Haviltex standard. The what? The Haviltex standard means that you look not only at the words on the paper itself, but also at the parties' intentions and expectations of each other. A few factors also come into play. For example, whether they are professional business parties and whether they received legal help in drafting and/or reviewing the employment contract. 

The employee was not aware that you cannot agree a probationary period in an employment contract for only six months. Also, in her job interview, she had been verbally promised that the employment contract would be for six months. The only clue to the “extra day” lies in the end date. The subdistrict court ruled that it was not employee's intention to enter into the employment contract for six months and one day. In short, the probationary period clause is invalid. 

What was the consequence for employer? Employer had irregularly terminated the employment contract, requiring it to pay compensation. The employer got off pretty well, because the employee had only claimed salary for the notice period up to April 1 and not until the end of the contract (August 1). 

Employer be alert! A probationary clause in an employment contract for six months and one day is allowed, but explicitly state in the employment contract that the duration is for six months and one day, so that the intention of the parties is clear. To avoid confusion, we recommend offering an employment contract for seven months. However, if a collective bargaining agreement applies to the employment contract, check that collective bargaining agreement as well. Sometimes it contains different provisions that may make things different.

Are you in doubt or do you have a question about this? Please contact Dennis Oud, Tessa Sipkema or Elke Hofman. 

Read the ruling here

Translated with DeepL.com (free version)

Last Friday at the Molenviergang at Zevenhuizen, the new team and shirts of the volleyball team ZVH Volleyball Men's 1 were presented! 🏐

Under the brilliant blue sky, the men of ZVH gathered for an evening full of highlights. A fun moment of the evening was when Johan Ottevanger, the miller, put the players to work and asked them to turn the mill and put it right into the wind. 😅 It was a unique experience that not only got the mill moving, but also filled the atmosphere in a special way. The event was also made by the presence of the Men From from Zevenhuizen, who provided a deliciously catered barbecue.

But the highlight of the evening was of course the handing over of the new shirt to Gerard van der Wende from our office.

We as shirt sponsor are looking forward to a great season full of sporting successes! The first league game is scheduled for Sunday, September 22 and the first home game is scheduled for Saturday, September 28 at 20:00 in Swanla. 

If you, as a citizen or company, want more information about, for example, an environmental permit from your neighbor, you can submit what is known as a Woo request to the municipality. This can be done through a request under the Open Government Act. You request the information from the administrative body from which you want the information (for example, the Municipal Executive, the City Council or the Mayor, depending on which administrative body made the decision). In doing so, you do not have to justify why you want to receive this information. The administrative body must then decide on your request within a certain period of time. Generally, a decision must be made within 4 weeks, but the deadline can be extended by 2 weeks. There may be exceptions to this deadline. If the administrative body does not respond to the Woo request in time, you can declare the administrative body in default. If no decision is made by then, you can appeal to the administrative judge for not deciding on your Woo request in time. The administrative judge must then decide within what period of time the administrative body must still decide on your request. But what is a reasonable period of time? 

The District Court of North Holland ruled on this issue on July 25, 2024. It ruled that it is up to the administrative court to determine what is a reasonable time for the administrative body to still decide on the Woo request. Indeed, it appears from Article 8:55d Awb that a standard time limit of 2 weeks applies for this. However, Article 8.4 Woo provides that, if the request is of a large size, this standard period must be deviated from. The larger the request, the more likely it is that the organization will be given longer than 2 weeks to respond to the request. Thus, the administrative law judge must make an assessment of how long the organization reasonably needs to review the request and decide quickly but carefully. This must include balancing the size of the request against what can reasonably be expected of the college. 

So keep in mind that an appeal to the administrative law judge does not automatically mean that the college will decide on your request on short notice. If the request is very extensive, the administrative judge may set a long(er) deadline. After all, in addition to speed, due diligence must also be considered. 

If you have filed a Woo request that the administrative body has failed to decide on in a timely manner, or if you need assistance in filing a Woo request, we will be happy to help you. If you have any questions, please contact Gerard van der Wende or with Fleur Huisman 

Link ruling: https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBNHO:2024:7939 

Translated with DeepL.com (free version)

In a recent post, we talked about “the unambiguous termination of the employment contract” by the employee and that as an employer you have to be very careful with this. In this ruling, the subdistrict court held that there was indeed notice of termination by the employee. Why now? 

The employee sent an e-mail to the employer with the subject “termination of employment”. In this e-mail she indicated that she wanted to terminate the employment contract. In the e-mail she mentions several reasons which she had also previously discussed with employer. In the e-mail she also clearly states her notice period. After this e-mail, employee and employer discussed the situation with each other and employee did not reverse the termination.

A few days later, employee found out that things were going to change for the better in the organization at employer, so employee decided to revoke her notice. In justification of the withdrawal, she indicated that the employer had never confirmed the notice in writing and that with the e-mail she had only meant to want to discuss a number of matters, but not that she actually wanted to leave.

The subdistrict court is clear: the employee unequivocally terminated the employment contract. Employer could not have concluded from the e-mail that employee only wanted to enter into the conversation, partly because she had even named the notice period and all kinds of reasons why she wanted to leave. Employer was already aware of these reasons, so it could logically assume that employee actually wanted to terminate the employment contract.

The moral of these stories? If an employee cancels the employment contract in anger or on a whim, then the employer should consider whether the cancellation is truly genuine, but if the employee cancels in a clear well-reasoned email, then the employer may hold the employee to that cancellation.

If you have any questions, please contact Dennis Oud, Tessa Sipkema or Elke Hofman. 

Read the ruling here: https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBMNE:2024:4254

Translated with DeepL.com (free version)

It sometimes happens that an employee shouts ‘I'm done with it’. That this cannot automatically be seen as resignation is proven by a decision of the Amsterdam Court of Appeal dated 7 May 2024 and the interlocutory decision that preceded it.

Again, an employee cried out that ‘he was done with it’. The employer took this seriously and during a conversation with HR, the employee indicated that he needed to think about whether he would stick to this position. During a conversation the following day, the employee indicated that he was ‘sick of recent times’. Employer did not accept this sick report and demanded that employee give a ruling the next day. When the employee also started talking about a settlement agreement, employer apparently had had enough and handed the employee a letter with the subject line ‘Confirmation of dismissal at own request’.

In this case too, both the subdistrict court and the court of appeal held that merely shouting that an employee is done with it does not constitute unequivocal termination of the employment contract. Once again, it appears that if an employee has had it for a while, the employer really needs to start the conversation and if that conversation does not lead to a termination of the employment contract, the employer cannot then argue that there was an own dismissal after all. Especially if emotions are running high, the employer would be well advised to take a time out; not to start the conversation until the next day; and if the employee still wants to resign, to explain in writing the consequences of such a resignation. If the employee then still stands by his position even after that, you can speak of an unequivocal resignation.

Should you have any questions following the above, please contact one of our employment specialists: Dennis Oud, Tessa Sipkema, or Elke Hofman.

Read the statements here: https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:GHAMS:2023:3091 and https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:GHAMS:2024:1238