Unduly Paid Overtime Compensation Must Be Repaid

Since an employer had proven that the employee had not been ordered to work overtime, the employee had to repay the employer a large amount of overtime compensation.

An employee worked at the Port of Rotterdam in a department that takes care of the maintenance of the quay walls, the works of art / infrastructure works jetties, structures, buoys and port banks. Quite frequently, the employee worked at the port. The employee earned a gross salary of approximately EUR 4,600 per month.
In 2017, the employee had to undergo surgery. During his reintegration, it turned out that the employee was not able to complete his 40-hour work week, due to physical complaints. Since the employee's hobby was photography, it was agreed that he would take photos for the Communication department during his visits to the port.
At the beginning of 2020, the Port Authority received a notification from the HR department that the employee's salary had exceeded the maximum pensionable salary for 2019 (EUR 107,953). Investigation showed that the employee had monthly declared, and was paid, a large amount of overtime compensation. Under the CLA, the employee was only entitled to overtime compensation if the employer had given him instructions to work overtime.
To this end, the employee's manager had to sign a list of overtime hours for approval on a monthly base. Since the manager had not been aware of the high number of overtime hours, it was decided to check the events surrounding the number of the January 2020 overtime hours. It then turned out that the employee had added a considerable number of overtime hours to the list after the manager had signed it. When confronted with this, the employee admitted that, indeed, he had done so. However, according to him, the overtime hours were actually worked. The employee had, as he said himself, spent the overtime hours taking and editing photos.
The employee was suspended.
When further investigation showed that he had declared almost 900 overtime hours in 2018 and over 1,100 in 2019, which by no means corresponded to the number of photos delivered, he was summarily dismissed.
Then, after deduction of what the company still owed to the employee under the employment contract, the Port Authority claimed almost EUR 89,000 back from the employee for unduly paid wages. The Sub-district Court granted the Port Authority's claim, but the employee lodged an appeal with the Court of Appeal. This Court ruled that the Sub-district Court had wrongly reversed the burden of proof by asking the employee to prove the overtime. Instead, it was the Port Authority that had to prove that it had unduly paid for the overtime.
The Court of Appeal decided that the employer had been successful in providing that evidence. The Court took into consideration that the fact that the employee had first attributed the overtime to the photography work and later also to overtime in his regular position, had weakened his credibility. It was also not until during the appeal that, for the first time, the employee referred to a notebook in which, as he said, he had recorded his overtime hours.
There were some more statements of the employee the Court found implausible.
From the manager’s e-mail messages and his witness statement the Court of Appeal inferred that the employee had, indeed, been instructed to take photos for the Port Authority, but not to charge overtime for it. Thus the employee was not entitled to rely on the expectation that this was the case either. It was just an alternative way of filling in hours that the employee could not work in his own job due to his physical complaints. According to the Court, the manager had also clearly indicated that the work had to be done during working hours and that what happened outside working hours was just a hobby.
Likewise, the Court rejected the employee's defence that the Port Authority should have monitored the declared overtime, should have investigated it earlier, and should have taken action to limit the damage. The obligation to limit the damage applied to damages, whereas the Port Authority's claim was about undue payment. Furthermore, the employee had disrupted the Port Authority's overtime administrative system by systematically adding overtime hours after the manager had signed the list. As a result, the employee could not blame the Port Authority that the system had failed.
The Sub-district Court’s judgment, ordering the employee to repay almost EUR 86,000, was upheld.

Claims against an employee for repayment of undue wages are rare.
Quite often one estimates that redress from an employee will cause problems, which is why recovery is often waived. Good employment practices may also entail that redress should be waived, in particular if the employee not necessarily had to understand that the employer paid unduly and that, for that reason, recovery could be foreseen. It is quite a big difference if, e.g. the employer pays too much as a result of a miscalculation of the pension premium to be withheld, even though an employee not necessarily has to understand that the payment was made unduly, or if the employer paid the salary twice, in which case an employee should of course have understood that the payment was made unduly. In the above case, the Court assumed the employee’s malicious intent, in which, of course, recovery is not contrary to good employment practices. The employer will probably still have a hard time, however, to recover the entire amount from the employee.
Although the Court did not object it to the Port Authority, it remains remarkable, of course, that an employee with a gross salary of approximately EUR 60,000 per year managed to have an amount of almost EUR 100,000 in overtime over two years paid to him, before he eventually got caught.