Restoration labour agreement
Restoration of the labour agreement: how and what?
When your labour agreement has ended with approval of the EIEI or the district judge, you can take action as employee to repair that. The legal ground on which you can do this is art. 7:682 paragraph 6 DCC, which also states that you need to include in your claim the date of restoration.
Entering a new agreement
Restoration does not mean that the labour agreement automatically is revived. It can also be that the labour agreement has been concluded, but the employer is being forced to enter into a new agreement. In such a case the employer is obligated to enter into the new agreement under the same conditions as the previous, which can be derived from the Parliamentary Papers.
Article 7:683 paragraph 3 DCC gives various possibilities to the court of appeal and the Supreme Court when it becomes clear that the claim for termination of the labour agreement has been approved illegitimately, when the request of the employee to restore the labour agreement was rejected illegitimately or when the district judge illegitimately omitted to quash the termination.
Restoration or compensation
The court of appeal or Supreme Court can choose between restoration of the labour agreement or awarding a reasonable compensation. In the literature it has been assumed that the reasonable compensation only can be awarded when it seems that restoration of the labour agreement is not reasonable, e.g. when the employee did not ask for this restoration.
Two situation can evolve. The court of appeals or the Supreme Court rules that the labour agreement must be restored from the date of termination. The second option is that the labour agreement must be restored from another date, later then the termination. When the situation, as described in art. 7:682 paragraph 4 DCC, is at hand, restoration from the date of termination takes place.
When the judge rules that restoration of the agreement should happen from a date after the date of termination, the question arises what needs to happen in the intermediate period. Article 7:683 paragraph 4 DCC stipulates that it can be applied according to article 7:682 paragraph 6 DCC. The latter stipulates that the judge decides on which moment the labour agreement must be restored and that the judge must take measures concerning the legal effects of the intermediate period. This could be salary, pensions, etc.
Preservation service years
As previously mentioned the ruling to restore the labour agreement means in fact that the employer is obligated to offer a new agreement under the same labour conditions as the previous agreement. This also includes preservation of the employee’ service years.
Choose the correct tactic
As the article shows, the choice of tactic after a dismissal with immediate effect or dismissal by a district court / EIEI is of great importance. If you want help with the determination of that tactic, contact Suzanne van Dijsseldonk LLM.