High Equitable Remuneration for Failure to Offer Suitable Work

For three years, an employer had refused to use the employee’s services in the own company during her labour incapacity, for reason that their employment relationship had allegedly unduly been disrupted. When the employment contract was finally terminated for a disrupted employment relationship, the employer had to pay the employee an equitable remuneration of three annual salaries in addition to the transitional allowance.
The employee had worked at a healthcare institution as a clinical chemist since 2018.
In December 2020, she had a confrontation a colleague about irritations this colleague felt about the cooperation with the employee. Shortly after both had discussed this confrontation again, the manager informed the employee that an improvement process would be started, aimed at cooperation improvement. The employee was blamed of being too demanding.
Until that moment, no performance reviews had ever been conducted, the cooperation discussions that had taken place never mentioned any criticism on the employee's performance, and a recently conducted competency survey had even shown that the employee actually scored high on the competencies of cooperation and communication.
After first having worked for a few days, the employee had a breakdown at work, after which she reported sick. The occupational physician diagnosed that the established labour limitations could partly be traced back to events at work, but partly also were the result of an illness. The occupational physician advised to have some meetings, aimed at restoration of trust and safety, after which the employee's recovery would just be a matter of time.
These meetings, however never took take place.
It then turned out that the employee had severe depression. Mediation meetings were held from August to December 2021, however without success. The occupational physician then terminated his assignment because his advices were only limitedly acted upon.
The employer then proposed the employee to terminate the employment contract.
When the employee rejected this proposal, the employer submitted a request to the Sub-district Court for termination of the employment contract. The Sub-district Court, however, rejected the request: the employee should continue to work on recovery and then the parties should enter into a dialogue on improvement of cooperation and on reintegration.
The employer disagreed and lodged an appeal.
A new occupational physician recommended to discuss the aim of reintegration, then to have short coffee-fuelled talks (coffee chats), and, once these coffee chats would go well, to start building up the activities. Three months later, after repeated requests by the employee and after a conversation in the presence of the parties' lawyers, two coffee chats were scheduled. Since this was only a few days prior to the hearing in which the Court of Appeal would hear the employer's appeal and since, simultaneously with the proposal for the coffee chats, a number of negative statements about the employee -also meant for the appeal- were submitted, the employee requested postponement of the coffee chats.
After the hearing, the first coffee chat took place with the colleague the employee had had the confrontation with. The employee perceived this chat very negative, which was a reason for her to urge the employer to ensure that other colleagues would know that the intention of the coffee chats was to arrive at work resumption.
Meanwhile, the Court had rejected the employer's appeal and the UWV had imposed a wage sanction on the employer for making insufficient reintegration efforts. Later, the employer's objection to this UWV decision was declared unfounded and also a request, to reduce the wage sanction, later made by the employer, was rejected. A proposal from the employer for a mediation meeting in the presence of both lawyers was refused by the employee, because the only item to be discussed then would be the termination of the employment contract.
When the occupational physician repeated his advice to discuss the matter with each other in order to resume work, the employer announced that there would be focus on reintegration into suitable employment with another employer. In addition, the employee was denied access to the employer's premises and her log in facility to the employer's systems was revoked. The UWV refused to handle the employee’s request for an expert opinion, because its waiting period would take at least six months.
An employment expert’s attempt to initiate a discussion between the parties was unsuccessful.
While the employee's recovery was well on its way, she found suitable work with another employer on her own. Her performance there was positively assessed, but due to the limited number of available employment opportunities, she could not be offered a job there. When finally the employee had nearly fully recovered, the employee's lawyer repeated his question to discuss work resumption again, pointing out that the necessary personnel changes had taken place in the meantime, but the employer rejected the request because, in his opinion, the employment relationship had completely been fouled.
Shortly before the end of the third year of sickness, the employee reported recovered.
The employer refused to pay wages after the end of the third year of illness and again submitted a request to the Sub-district Court for termination of the employment contract, because the employment contract was allegedly disrupted. No one would allegedly want to work with the employee anymore. The employee was accused of a lack of self-reflection.
Since there was no continuation of any sickness anymore, and since, for that reason, the termination prohibition was not applicable, the Sub-district Court did terminate the employment contract this time. The employment relationship had been disrupted, but according to the Sub-district Court, this disruption was due to seriously culpable behaviour on the part of the employer who had seriously neglected his reintegration obligations by ignoring the occupational physician’s advices and his failure to take sufficient and adequate initiatives to resolve the conflict, despite the decisions of the Sub-district Court and the Court of Appeal, and despite the imposed wage sanction. The employer was also reproached for having discontinued the wage payments.
The seriously culpable behaviour implied that the Sub-district Court did not have to take the elapsed duration of the procedure into account when determining the date of termination of the employment contract, and that, additional to the transitional allowance of over € 24,000, the employer had to pay equitable compensation.

In accordance with case law of the Supreme Court, all circumstances of the case had to be taken into account, when determining the amount of the equitable compensation, including the degree of culpability and the financial and other consequences of the dismissal for the employee, insofar as these were attributable to the seriously culpable conduct of the employer. The amount of the equitable compensation migh also be influenced from the expected continuation of the employment contract and the employee’s opportunities to receive income elsewhere.
For determining the equitable compensation, the transitional allowance due to the employee had to be taken into account as well. The employee had claimed three annual salaries (almost €450,000), because she could have recovered quickly if the employer had cooperated with the reintegration and, given the earlier positive assessment, because she would have been able to cooperate well with her colleagues.
The employee also pointed out that the labour market perspectives for a clinical chemist are limited and that the unemployment benefit only covers one third of her salary.
The Sub-district Court supported these arguments and added that the employee was the breadwinner of her family with young children, that looking for another job was hindered by a damaged reputation and that the employee’s registration as a clinical chemist would no longer be valid if she did not manage to find another job within two years.
According to the Sub-district Court, the imposed wage sanction and the transitional allowance to be paid do not entail that the equitable compensation should be lower.
Finally, the employer was ordered to pay the outstanding wages, with a 50% statutory increase and the statutory interest.

In practice, employment disputes quickly lead to sick reports. If it is a genuine matter of a disease, the prohibition on termination during illness makes it extremely difficult, if not impossible, to terminate an employment contract. And as long as the employment contract has not been terminated, the employment dispute often perpetuates the disease.
Then there is an imminent threat of a long-term stalemate, while the costs of on-going payment of wages during illness continue for the employer. The employment dispute also complicates reintegration, so that a UWV wage sanction is also looming.
It is difficult to give good advice to someone who is in difficulty, but stubbornly insisting on terminating the employment contract, as the employer did in the above case, is in any case a recipe for misery. In this case it cost the employer over six annual salaries, which added up to an amount of over six zeros!