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Unilateral determination of days off during employment agreement with a specified duration
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An employee who works 32 hours per week on the basis of an employment agreement with a duration of one year has been working for a consultancy company since 13th October 2008. The employee has the right to 20 days’ off per year, whereby the employment agreement stipulates that the employer is authorised to designate four days as obligatory days off. At the end of 2008, the employee took four days off, meaning that there were a further 16 days off until the end of the employment agreement. However, after 26th January 2009, the employee was no longer working, apparently as a result of being taken off duty by the employer. On 1st April 2009, she reported sick and from 29th May 2009 to 6th September 2009 she was on maternity leave. The employer informed her that her employment agreement would not be extended following the end of the agreed period and that the employee must take her holiday days before the end of the employment agreement. When the employee announced that she was not in agreement with the latter, the employer unilaterally determined the days off. Since the employee denies that the employer was authorised to do so, she is claiming, following the end of the employment agreement, the compensation refused by the employer for sixteen days off which were not taken.
The sub-district court judge ruled that the unilateral determination of the days off is in conflict with the legal system which aims to enable employees to save days off in order, for example, to attune work and care tasks to one another or for study purposes, long-term leave or retirement. The employer’s unilateral determination of days off does not fit into that system, even at the end of the employment agreement. After all, the law stipulates that, with a new employer, employees have the right to unpaid leave for days off which they did not take while at their previous employer. Since a different arrangement was stipulated in the employment agreement for four days per year, those four days must be deemed to have been taken. The employer therefore still has the right to compensation for 12 days off which were not taken.
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The legal regulation of days off assumes that the days off are determined in accordance with the wishes of the employee. This is only not the case if weighty reasons oppose it and in such cases the employer must inform the employee thereof within two weeks once the employee has informed the employer in writing of his/her wishes as regards holiday days off. Unless an employee has made his/her wishes known, no holiday days off can be de-termined under the legal system. This is no different when it concerns an employment agreement for a specified duration, since the law assumes that the right to the days off accrued during the agreement must not be taken per se during the agreement. In this case, the employer could have perhaps forced the employee to take the days off and could therefore have prevented the payment of the days off by allowing the employee to return to work. Assuming that the employee would then have had little desire to return to work for just 12 days, she could perhaps then have taken the days off. In order to avoid problems such as these, employers are advised to include an arrangement for the determination of days off in the employment agreement, whereby they can have more influence on determining those days off. The ruling of the sub-district court judge also shows that such an arrangement is legally valid.
Sub-district court judge Utrecht 12th May 2010, www.rechtspraak.nl, ljn: BM5659
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