An employee of a fast-food restaurant has an employment contract stipulating that work will be carried out where she lives, but that she will agree to be transferred temporarily or permanently to another restaurant of the same employer if the employer deems it necessary. If the employer actually transfers her, she does not appear at work. The employer stops paying her wages.
The issue before the court is whether the employee had to comply with the employer's order to perform her work at another location. It is established that the employee did not consent to the transfer and that the employer therefore determined this unilaterally. It must then be assessed whether the employer was entitled to change this unilaterally.
Judge's considerations
The employment contract includes a (unilateral) amendment clause. It is an established fact that the employee was assisted by an employee of the Dutch Refugee Council when she signed the employment contract. Under those circumstances, the employer was entitled to trust that the employee knew what she was agreeing to and that she was sufficiently informed about the consequences.
According to the law, the employer can only invoke a unilateral modification clause if it has such a weighty interest in that modification that the interest of the employee that would be harmed by the modification must give way to it according to standards of reasonableness and fairness.
The employer has tried to retain the employee for the organisation, despite remarks about her behaviour and work attitude, according to the employer, also because she is a Ukrainian refugee. As a good employer, the employer looked at opportunities elsewhere within the organisation. He did so by, among other things, proposing a transfer within the employee's own function with retention of all terms and conditions of employment to the other location.
Judge's ruling
The court held that the employer had a compelling interest in transferring the employee to the other branch. Given the employee's dysfunction over a period of time and a relationship visible on the shop floor with a colleague, the employer could decide that she could no longer perform her job at the branch in her place of residence. Despite several warnings and talks, no improvement occurred. With the transfer, the employee retains the same job at the same working conditions, it just involves a different location. The court found that the employee had opposed the transfer from the outset without being open to consultation.
The employer made it plausible that the employee's practical objections to the transfer, namely the longer travel time by public transport, not being able to cycle and not having a car available, were negotiable and therefore not an insoluble problem. The employee could have (partly) ridden with a colleague and there is a staff bus to the other location. The travel time is longer, but not unreasonably long.
In conclusion, the employee should not have refused the transfer proposal. That she subsequently failed to carry out her work in the other location is her fault and within her sphere of risk.
According to the law, the employer must pay the time-based salary even if the employee did not perform the agreed work in whole or in part, unless the non-performance of the agreed work in whole or in part should reasonably be for her account. Since the employer had a compelling interest in transferring the employee and wrongfully refused this proposal, the employee's failure to perform the agreed work should reasonably be at her expense. The request for payment of the (overdue) salary will therefore be rejected.
Note: A unilateral modification clause does not mean that the employer can simply transfer an employee. Substantial business interests of the employer must prevail over the interests of the employee. The burden of proof of this lies with the employer.
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