A question that we as employment lawyers receive with some regularity is whether an employee can be placed in a lower position with a lower salary after one or more incidents. In many cases an employee will not voluntarily agree to this and the question arises whether a unilateral change of position is possible. This question was addressed by the subdistrict court in its judgment of December 31, 2020.
Rotterdam District Court ruling on employee reassignment after incident
In brief, the facts were as follows. The employee caused serious damage during his work. While loading and unloading trucks, a container fell on other containers. In view of that incident and in view of previous incidents, the employer wanted to adjust the employee’s position with a corresponding lower salary.
The employee protested against this unilateral job change and claimed before the subdistrict court that he should be allowed to return to his former position with corresponding pay.
The subdistrict court ruled that the employer could not reinstate the employee on the basis of the unilateral change clause laid down in the collective agreement and the rules book. On that basis, the employee could only be reinstated one level lower and not two levels. The subdistrict court therefore tested the unilateral change against Article 7:611 of the Dutch Civil Code, which stipulates ‘good employment’.
What does a unilateral (job) change under Art. 7:611 of the Dutch Civil Code mean?
‘Good employment practices’ as set out in Article 7:611 of the Dutch Civil Code mean, in brief, that an employee should generally respond positively to reasonable proposals from the employer related to changed circumstances at work and that these proposals may only be rejected if acceptance cannot reasonably be required of him or her.
The test contains a so-called ‘triple reasonableness test’ and looks at all circumstances of the case. There must be (1) a reasonable proposal from the employer, (2) this proposal must be related to changed circumstances at work and (3) acceptance of the proposal must be reasonable for the employee.
Supreme Court ruling on unilateral change under Art. 7:611 of the Dutch Civil Code
The Supreme Court elaborated on this test in its Stoof/Mammoet judgment. Relevant is the reason for the change, whether a phasing-out scheme is used, whether there are less far-reaching alternatives and what type of employment conditions are involved. The judgment also shows that the employer must actually make a proposal in order to enter into consultation about the change. If there is no communication on the change, it will soon be unreasonable.
Ultimately, it is a matter of weighing up interests. The judge weighs the changed circumstances at the workplace and the personal circumstances of the employee.
Judgment of Subdistrict Court on Unilateral Job Change after Incident
In the previously mentioned judgment of the Rotterdam sub-district court, it was ruled that the reassignment with wage adjustment was justified on the grounds of Article 7:611 of the Dutch Civil Code. The employee had already inflicted substantial material damage on several occasions in the past. Given the new serious incident in which, in addition to material damage, a dangerous situation had arisen for persons, it was reasonable for the employer to reassign the employee. The subdistrict court further appointed that the change in salary is drastic, but not unreasonable because that change mainly relates to the elimination of the shift work bonus and the employee no longer has to work shift work. The subdistrict court thus rejected the employee’s claim.
Lawyer specialized in (amendment of) terms of employment
Questions about amending terms of employment? The employment lawyers at LVH regularly advise employers on employment conditions and changes thereto. They can assist you in making these important decisions so that legal proceedings can be avoided. Please feel free to contact Peter Verheijden and Lisa Kloot for the possibilities.
