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Working conditions - 28.02.2020 klo 08.50

Cook wins dispute over termination of contract at District Court

Photo: GettyImages.

When a PAM member’s employment as a cook ended, a dispute broke out between employee and employer as to which party terminated the employment. They also disagreed over pay.

The PAM member worked as a cook for the same employer from 2 May 2018. The employment relationship ended in August of the same year. There was an oral agreement between employer and employee. According to the employer there had been oral agreement on a trial period, whereas according to the employee no trial period had been agreed.

According to the employer the employee terminated the employment relationship himself by ending the trial period in mid-August. The employee, however, claimed that after his holiday in mid-August the employer stopped offering him work. So in practice it was the employer who terminated the contract.

Trial period to be agreed separately for each employee 

The District Court concluded that no trial period had been agreed for this individual employee. 
In the District Court’s reasoning, it is straightforward for an employer to agree a trial period verifiably in a written employment contract. According to the District Court, the fact that the employer argued that trial periods had been agreed in almost all other employees’ employment contracts does not imply what the employer agreed with an individual employee.

The employer produced personal testimony that the employee had orally declared he was quitting his job. According to the District Court it should ordinarily be assumed that an employee ends their employment with a clear statement of intent and that the employer can demonstrate with reasonable assurance that this has indeed happened. The court found it unclear exactly where and when the employee had declared he was ending his employment based on a trial period.

Recordings used as evidence 

The employee had recorded two discussions he had with the employer, which were produced as evidence in the District Court. On returning from holiday the employee told the employer he was ill and would produce a medical certificate. According to the District Court the most natural interpretation of the taped discussion was that the employment relationship was in place.
The District Court considers that the employer ended the employee’s employment without the justifications required by the Employment Contracts Act. Therefore the employer must pay the employee compensation.

Employee compensated both for termination and unpaid bonuses 

The employee also demanded unpaid higher pay for Sunday hours. In the District Court’s reasoning the plaintiff’s wage slips indicate that the employer only paid the employee for basic hours. The employer claimed in court that the employee’s hourly wage of € 13.5 includes “everything”. According to the District Court higher rates for Sunday work cannot be included in an hourly wage.

The employer is required to pay the employee unpaid wages of € 2517, compensation equivalent to 3 months’ wages of € 6439 for unjustified termination of employment, one month’s wages of € 2146.5 for the notice period as well as € 700 in unjustified deductions from the final pay for meals. The employer is also required to pay PAM’s legal fees of € 8070. 

 

 

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