Does a Wage Claim for Applying a Lower Salary Scale Expire after Late Submission of a Complaint about it ?

An employee who complained about an incorrect job classification in the past, resulting in too low wages, had not forfeited her wage claim by not having complained about the incorrect job classification earlier. Wage claims, older than five years at the time of the complaint, however, were time-barred.

Since 2002, an employee had worked at a supermarket, where she started as a prospective cashier. When the store was sold in 2012, the employee entered the service of the buyer of the supermarket. At the time, the employee was classified in salary scale B of the applicable CLA. During an interview, shortly after the takeover, the new supermarket owner promised the employee that she would be classified in a higher job scale. A few months later, when the employee indicated that she had not received a salary increase yet, she was classified in salary scale C with retroactive effect from the date of the initial interview.
When, subsequently, the employee claimed that she should already have been classified and paid for the position of a first cashier in salary scale C even before the interview had taken place, the employer took the view that there was no basis for payment of a higher salary than one that was carried by a scale B, since the work performed by the employee corresponded to the job and salary of a cashier not to those of a first cashier.
Subsequently, the employer reduced the employee’s weekly working hours.
When the employee had submitted her wage claim to the Sub-district Court, the employer noted that the employee could not invoke an incorrect job classification because she had not timely complained about it. This notion was rejected by the Court, however. According to the Sub-district Court , the so-called “Obligation to Complain” applies if an appeal is made to a defect in the performance. According to the Sub-district Court, usually wage claims are not covered by the obligation to complain. Besides, according to the Sub-district Court, job classification is no performance. The Sub-district Court also held the opinion that the employee’s late announcement of the claim had not disadvantaged the employer in his investigations of the validity of the job classification.
Yet, the Sub-district Court also held the opinion that the employer had rightly invoked the period of limitation. Wage claims, older than five years from the first day when the employee has submitted a written claim for payment of outstanding wages have become time-barred.
The Sub-district Court also supported the employer’s statement that the employee did not fulfil the position of a first cashier. According to the CLA, this would apply once a cashier has followed specialized training and has the responsibility for other cashiers. Although the employee had stated that she carried out managerial duties, the Sub-district Court did not consider it plausible that this was what the employee routinely did, since she was only employed for 12 hours a week. But, since the employer had promised the classification in a higher salary scale, he could no longer unilaterally reconsider it. The employer had stated that he had made his promised to pay her salary in accordance with salary scale C out of goodwill and that the salary increase was not meant to be a permanent one, but according to the Sub-district Court there was no evidence to support that statement.
Therefore, the employer had to pay the higher salary.
As for the working hours reduction, the Sub-district Court ruled in favour of the employee. Under the legal presumption that the number of working hours should be equal to the number that the employee had worked in a period of - in the above case - well over three months, the employer was ordered to pay the wages based on the average number of 22.5 working hours per week.

In Civil Law, the so-called ‘obligation to complain’ is applicable.
This ‘obligation to complain’ entails that a creditor cannot invoke a defect in the performance if he has not protested against the defective performance within a reasonable period of time after he has discovered or could reasonably have discovered the defect.
The Supreme Court has determined that the ‘obligation to complain’ shall cover all commitments, therefore also obligations arising from an employment contract. There are, however, different views on whether claims for payment of outstanding wages are also covered by the ‘obligation to complain’ because of the protective effect employment law wants to offer to the employee.
In the above case, the Sub-district Court avoided the discussion about the applicability of the ‘obligation to complain’ to wage claims by stating that it concerned the job classification and that that job classification (unlike the wage claim based on this job classification) is no performance. This looks somewhat artificial. The duty to complain is intended to protect the debtor against late and therefore hardly disputable complaints.
The Sub-district Court 's argument that the employer had not been disadvantaged by the fact that the employee had not earlier complained about payment under a lower salary scale, is far more convincing. Even after the time-limitation has expired, according to the Sub-district Court, the employer can still easily determine whether the job classification at the time has been incorrect.