No salary because of Whatsapping!
With a employment agreement come obligations.
When an employer and an employee close an employment agreement, there develop mutual obligations. The most relevant obligation for the employer about the employee is that the employee needs to fulfil his job. For the employee most importantly is that there develops an obligation to pay salary by the employer.
Main rule: no work ≠ no salary
The legal main rule is that an employer does not need to pay salary to an employee over the time in which the employee did not work.
Exceptions to the rule
No work = entrepreneurial risk
This starting point however does know a lot of exceptions. For example in principle there is an obligation to pay salary when the employee did not work because of a circumstance for which in all reasonableness the employer is responsible. When an employer does not have sufficient work, he cannot take this out on the employee in principle; that’s the entrepreneurial risk of the employer.
Obligation to continue to pay salary during the first two years of illness
Another known (and in reality frequent) example is about the ill employee; during the first two years of illness the employer is bound to still pay the salary to the employee.
Personal and working hours blend together
The recent years work and private have blended together more and more. People deal with personal matters during their work (think about the taking out of subscriptions etc.), but also work in personal time to get caught up on their work. Mostly the development of the smartphone influenced this a lot.
Taking care of personal business during working hours is in many cases normal
Because more and more people take care of their work during their personal time, it’s also becoming all the more “normal” to take care of personal business during working hours. A lot of employers also allow (turning a blind eye) this, undoubtedly out of the thought that employees won’t take advantage of this. The question rises however how you need to act when there is being taken advantage.
A lot of Whatsapping during working hours
The sub district court Tilburg has been asked such a question.
In this matter an employee – over a period of about 6 months- send at least 1255 Whatsapp messages to his partner/beloved. The sub district court rules that the employer did not need to pay salary to the employee for the time he had spend on these messages, because the employee wasn’t available at that period of time for doing his job (so the main rule: no work ≠ no salary)
Judgment of the sub district court is understandable
The judgment of the sub district court is easily justifiable; during this period of time the employee was indeed not available for doing his job.
Arguments against the judgment of the sub district court
At the same time you can also bargain the judgment of the sub district court, at least you cannot deduce directly out of this judgment that employers can “settle” all personal activities which are being done during working hours with the salary.
Without getting into too much detail, I in general ask the question if the sub district court justly did surpass the defence of the employee (that) easily, knowing that he caught up on his work at a later time.
A toilet visit? And coffee drinkers? And smokers????
This decision, at the same time, opens the door for a whole lot of other situations, which although diverting from Whatsapping, at the same time do show some resemblance.
That a (less) sporadic visit to the toilet will lead to such discussions, I don’t deem likely
Regularly interrupting work to get a coffee break, can – depending on all circumstances of the case – become such a point of discussion.
This decision could have far-reaching consequences mainly for smokers. Besides smoking becoming a point of discussion in general, are regularly recurring smoke breaks of smokers on the work floor this as well for a longer time, not only for employers, but also or the non-smoking colleagues of those smokers.
Can employers and employees prevent such discussions? Yes!
Although it naturally isn’t possible to prevent all discussions regarding this subject, there is a possibility to reduce the chance for such discussions. In an office handbook/personnel handbook/ regulations/etc. employer and employee can make concrete agreements about the (personal) use of the electronics, which are at their disposal, as well as agreements about coffee and smoking breaks. Naturally it then is of importance that the employer also supervises the agreements to be respected. When the employer forsakes his policy, he is at risk of losing his “rights”, because of a justified trust that could arise with the employees.
Advocaat: Eersteklas keeper. Combineert kennis van zaken met onuitputtelijke energie. Heeft de drive om te scoren.
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