Subdistrict Court of Enschede, 3 January 2012, LJN: BV0155

The Provisions on Succession of Fixed-Term Employment Contracts

In principle, a fixed-term employment contract will terminate by operation of law. This may be different when there is a series of consecutive fixed-term employment contracts, which follow each other seamlessly or with an interruption of not more than three months. For instance, according to Section 7:668a of the Dutch Civil Code ("DCC"), the fourth employment contract in the series is considered to be an employment contract for an indefinite period of time. The second or third employment contract in the series will only change into an employment contract for an indefinite period of time at the moment when the term of 36 months is exceeded. These 'provisions on succession of fixed-term employment contracts' apply mutatis mutandis to consecutive employment contracts between an employee and various employers, for whom the employee has performed the same or similar work. The regulation only concerns employment contracts. Moreover, according to Section 7:615 of the DCC, this regulation does not apply to civil servants.

The Case

Initially, the employee concerned worked from the UMCU on the basis of secondment to the foundation Sciencia Kennistransfer GGZ from 1 August 2005 until 1 March 2008. Sciencia is a collaborative venture of various organizations, including Saxion Hogescholen. At the UMCU, the employee worked on the basis of a civil servant's appointment. The collective bargaining agreement CAO Universitair Medische Centra ("CAO UMC") applied to this appointment. In this CAO a regulation similar to the provisions on succession of fixed-term employment contracts is included. On 1 March 2008 the employee entered the employment of Saxion on the basis of a fixed-term employment contract for the duration of one year, but he continued to work for Sciencia. The CAO HBO applied to the employment contract. The CAO HBO also contains a regulation similar to the provisions on succession of fixed-term employment contracts. After the expiry of the first employment contract, this contract was renewed until 1 August 2009. On 30 June 2009 Saxion informed the employee that the employment contract would not be renewed and would therefore terminate by operation of law on 1 August 2009. The employee opposed this termination and made clear that he remained available for work. After 18 months he commenced proceedings to order Saxion to continue paying wages, stating that the last employment contract had changed into an employment contract for an indefinite period of time and had therefore not terminated by operation of law.

The Ruling

The Subdistrict Court is of the opinion that the period that the employee worked on the basis of a civil servant's appointment should be part of the contractual chain of Section 7:688a of the DCC. The Court does not only refer to this provision, but also to EC Directive 1999/70 concerning fixed-term work. Although Section 7:668a of the DCC is not based on this Directive, the Directive is deemed to be relevant by the Court for the interpretation and application of this provision. According to the Subdistrict Court, the objective of both regulations is to protect employees against various 'flexible' employment constructions. In view of this objective, the Subdistrict Court sees no reason to rule that the civil servant's appointment should not be taken into account. In this light, the Subdistrict Court also attaches value to the fact that during his appointment the employee already enjoyed a similar protection pursuant to the CAO UMC. Since the employee was employed with various employers who should reasonably be considered to be each others successor as far as the work is concerned, he can successfully rely on the applicability of Section 7:668a of the DCC, and therefore the last employment contract must be considered to be an employment contract for an indefinite period of time. However, according to the Subdistrict Court, allowance in its entirety of the action to recover back salary would lead to a disproportion between the period during which the employee has actually worked and the period to which the claim relates. The employee has not performed any work for Saxion anymore since 1 September 2009. Moreover, it can be held against the employee that he waited until January 2011 before commencing proceedings. Therefore, the Subdistrict Court moderates the claim to ten monthly salaries plus holiday allowance.

Tips

  • When offering a fixed-term employment contract, please take note of the employment history of the employee. For instance, this employment contract may automatically become an employment contract for an indefinite period of time when the employee performed the same or similar work before on the basis of a fixed-term employment contract for a different employer. In the opinion of the Subdistrict Court of Enschede, a prior civil servant's appointment must also be taken into account.
  • Nevertheless, the creation of an employment contract for an indefinite period of time on the basis of the provisions on succession of fixed-term employment contracts may be prevented by applying a period of more than three months between the previous and the new employment of the employee.
  • To conclude, in a CAO the statutory provisions on succession of fixed-term employment contracts may be deviated from in a legally valid manner. It is even possible to determine that this regulation is not applicable at all to the underlying employment contracts.

First published in the Kennedy Van der Laan newsletter - February 2012

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