Dutch Supreme Court, 9 December 2011 LJN: BT7500
In the period from 1978 until 1 June 2008 the contractor performed work for the TROS on the basis of a contract for services. At first, the contractor supplied contributions for various radio programs. As of 1983 the contractor particularly engaged in the editing of the daily medical reports on the TROS page of teletext. Besides his work for the TROS, the contractor worked some years as a part-time general practitioner until 2002. As of 1 June 2008, the TROS stopped the medical column on teletext and terminated the employment relationship. The contractor, however, was of the view that he is an employee within the meaning of Section 1 under b sub 2 of the BBA, so that the employment relationship could only be terminated after having obtained permission of the UWV. This Section stipulates, in short, that also the person who personally performs labor for another party is considered to be an employee, unless, as a rule, he performs such labor for more than two other parties, he is assisted by more than two other persons, or this labor is only of an incidental nature for him. Incidentally, after having obtained permission of the UWV, the TROS still terminated the employment relationship with the contractor on 29 September 2009.
The contractor took the matter to court to order the TROS to continue paying the agreed fees per month as of 1 June 2008 until the time when the employment relationship was terminated legally. The contractor was turned down by the Subdistrict Court, but he was found for in appeal proceedings and the TROS was ordered to continue paying the fees until 1 January 2010. The Court of Appeal of Amsterdam ("the Court of Appeal'') considered in this respect that with regard to the editing of medical teletext reports the contractor was an employee within the meaning of the BBA. First of all, there was personal labor. In view of, amongst other things, the medical knowledge and the personal qualities of the contractor, it was not intended that the work would be performed by another party. Secondly, the other work performed by the contractor could not be compared to his work for the TROS. He therefore did not have more than two clients for the same kind of work. Finally, the labor for the TROS was not only of an incidental nature. After all, as of 2002 the work performed for the TROS was the largest source of income for the contractor. According to the Court of Appeal, the fact that it was not the intention of the parties to agree on a employment relationship within the meaning of the BBA does not alter this, since the only question at issue was whether at the moment of termination of the relationship an employee needs protection.
The TROS did not leave it at that and appealed to the Supreme Court. In cassation the TROS complained, among other things, that the Court of Appeal had not paid any attention to the intention of the parties. In addition, the work of the contractor for the TROS would only be of an incidental nature if the entire period of the contract for services would be looked at.
The Supreme Court considered that the BBA intends to provide protection to the 'employees' described therein. This means that if the criteria of Section 1 under b sub 2 of the BBA have been met, the contractor enjoys the protection against dismissal of the BBA. It does not matter here whether the parties had the intention to agree upon a employment relationship within the meaning of the BBA. The intention of the parties only plays a role with regard to the criterion of the personally performed labor. To conclude, the Supreme Court considered that for protection on the basis of the BBA it suffices that the criteria were met at the moment of termination of the employment relationship. Since this was indeed the case, the Supreme Court rejected the appeal in cassation.
- The moment of testing whether the contractor does or does not enjoy protection against dismissal is the moment of termination of the employment relationship. If at that moment the contractor has less than two clients for the same kind of work, the BBA will be applicable in principle.
- As a result of the conclusion of temporary contracts for services, the contract for services will end by operation of law In that case, notice of termination is not required. Since the provisions on succession of fixed-term employment contracts of Section 7:668a of the Dutch Civil Code do not apply to a contract for services, in principle more than three contracts for services for a definite period of time may be agreed upon.
- By including a provision in the contract for services that no wages are paid if no work is performed, the client runs a smaller risk of having to continue paying the wages if he does not have the contractor perform any work anymore.
- If not the contractor himself but a BV (private company) of the contractor is a party to the contract for services, in principle the BBA does not apply. However, this is not allowed to be a sham arrangement.
First published in the Kennedy Van der Laan newsletter - March 2012
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