The employment contract of an employee of an amusement park was extended twice and the third employment contract ended by operation of law. The employment contracts always contain the following provision: the employer informs the employee, that the employment contract, will not be continued after the expiry of the agreed term. Does the employer have to pay a notice fee?
Employee's point of view
Despite the notice that the employment contract would not be continued after the expiry of the term for which it was entered into, the opposite happened twice. If so, the employer is no longer entitled to rely on this contract provision.
Employer's position
The end of the employment contract was given timely notice. This was done in writing in the employment contract. In fact, the employment contract already states that the employee is informed that the contract will not be continued after the expiry of the agreed term. Therefore, the employer also always gives its employees a new contract if the employment contract does continue and does not work with an addendum to the existing contract. This practice of the employer is clear and transparent. It is in line with the collective agreement and the legislative history.
Judge's considerations
In itself, the employer is right that the parliamentary history of the obligation to give notice shows that the employer can indicate immediately upon entering into an employment contract that there will be no successive contract. But in the present situation, where this notice has been in the successive fixed-term employment contracts up to three times, and twice despite this notice it was extended, the notice in the employment contract is no longer sufficient.
A comparison comes to mind with Aesopus' fable: The boy who cried wolf. After the boy, who was supposed to be watching the flock of sheep, had raised the alarm three times in vain by shouting "wolf", the fourth time no one came to his alarm and the father in the evening saw only a wolf with a fat belly and his son's straw hat sticking out of the wolf's mouth. Translated to the present case, where 'wolf' was shouted three times by the employer, but the first two times, despite the advance notice in the employment contract, were still renewed, the third time 'wolf' can no longer be considered a serious notice.
The purpose of the (written) notice is to provide the employee with timely clarity as to whether or not his employment contract will be continued and to avoid uncertainty on the part of the employee as to whether or not the employment contract will end. It was not disputed that the employer did not verbally inform the employee that his employment contract would not be renewed until about a week before the expiry of the fixed term of the third employment contract. This therefore did not provide (timely) clarity to the employee on whether or not his fixed-term employment contract would be extended, let alone in writing.
Judge's ruling
The court finds that the employer did not comply with its notice obligation. Therefore, the notice fee is due and the employer is ordered to pay the costs of the proceedings as the unsuccessful party.
Note: After extending a temporary contract with the notice as a standard clause, it is advisable to still give timely written notice.
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