'Performed by another person'
In a recent case before the Subdistrict Court in Maastricht the employer and its former employee disagreed on the phrase in the Dutch Civil Code ‘performed by another person’. The District Court judge was very clear on this: the reinstatement condition also applies when hiring a temporary agency employee or freelancer to perform the same type of work.
‘Structural nature’
According to the employer though (who had hired a freelancer in the meantime), the four months’ assignment of the freelancer was not of a structural nature. Again, the employer was wrong. According to the court it is not relevant whether or not the hiring of a freelancer is structural. Moreover, the court ruled that a period of four months is in fact quite structural.
The termination of the employment contract was nullified by the court judge and the dismissed employee was allowed to take up his former job. In addition, the employer was ordered to recover the employee’s salary as from the notice date.
In short, be careful in what period and for which activities you hire a freelancer or temporary agency employee after completion of a reorganization. When you come to a termination settlement with the employee, this reinstatement condition does not apply.
