Wage Freeze for Sick Employee who Refuses Conversation with his Employer

An employee who was incapacitated for work and who, due to a conflict with her employer, did not want to stay in contact with the employer because she claimed to be unable to do so, was not entitled to her wages. The Sub-district Court held the opinion that the employee had not demonstrated that she was unable to stay in contact with the employer. Therefore, she had not met her reintegration obligations.
In April 2022, an employee who worked as a security guard at Schiphol Airport had fallen ill for work. In December 2022, the occupational physician decided that she could resume her work for four days a week, during six hours a day. The employee did not resume her work, however, but applied for a UWV expert opinion. The employer then discontinued her wage payment. Somewhat later they reached an agreement that the employer would continue the wage payment and that the employee would work six hours per day, four days per week.
Even on the same day, however, the employee reported sick. She also announced that she had made a new application for a UWV expert opinion.
Then the employer immediately discontinued her wage payment.

The UWV expert report showed that a working time of four times six hours per week exceeded the employee’s capacity. But, when the employer tried to call the employee in order to arrange a meeting with the employee, which was in accordance with the occupational physician’s advice, he did not manage to get in touch with her. By e-mail message, the employer then insisted on a meeting. When, finally, he managed to contact her by telephone, the employee declared that it had not been possible to reach her due to the death of her mother, two days earlier. The employee was still invited for a conversation.
A few days later, the employer received a message from the employee's authorized representative stating that the wage freeze was unlawful. The invitation for the conversation was ignored. After a few more unsuccessful attempts to phone the employee, the employer informed the employee by e-mail that she would maintain the wage freeze as long as the employee would refuse to inform her that she would participate in a meeting with her employer.
When the employee claimed wage payment in summary proceedings, the Sub-district Court granted the claim up to the moment when the employer had had the telephone contact with the employee after the death of the employee's mother. The reason for this decision was that the UWV had decided that the employee could not work six hours a day, four days a week. Therefore, the employee had good reasons to refuse compliance with the employer's invitation to perform the suitable work.
The Sub-district Court rejected the wage claim, however, from the moment when the employer and the employee had had their telephone contact. The reason for this decision was that despite the occupational physician’s advice to enter into a discussion to normalize the employment relations, the employee had failed to fulfil her reintegration obligations, by not responding to the employer’s requests to enter into a discussion and instead by avoiding any contact with the employer. The Sub-district Court could understand that the employee had not immediately been available after the death of her mother, but the employee had not reported to the employer after this either and had never given an indication on how or when a meeting could take place and what re- integration work she would be able to do. According to the Sub-district Court, the employee's claim that she was unable to stay in contact with the employer had insufficiently been substantiated. As of the first telephone conversation with the employer after the death of her mother, the employee had been aware of the fact that she would not receive any wages for as long as she refused to meet the obligation to enter into a conversation with her employer. From that moment on, the condition that the employer shall inform the employee of the reason for discontinuation of the wage payment was met.

Usually, labour disputes involve major complications in the reintegration of an incapacitated employee. For that reason, both the employer and the employee have to put an effort into resolving such disputes. Talking to each other, whether or not under supervision of a third party such as a mediator, is a precondition then. If an employee refuses to cooperate, it is in principle a shortcoming with regard to the employee's reintegration obligations which -after notification by the employer- justifies discontinuation of the wage payment.
This is only different if, due to his/her illness, an employee would not be able to participate in such a meeting.
Since reintegration will be blocked in that case, employers would do well to request an expert opinion from the UWV. Once the UWV has confirmed that the employee cannot be required to attend such a meeting with the employer for medical reasons, the UWV will, in any case, not be able to impose a wage sanction on the employer later on, for having followed a “reintegration blocking advice” of the occupational physician.
In many cases, the problem of contact with the employer can be overcome by involving an independent case manager, who can maintain contact with the employee on behalf of the employer.