Salary penalty for failure to meet reintegration obligations
Be careful with terminology when a salary penalty is imposed for failure to meet reintegration obligations
Although failure to co-operate with reintegration is a ground for excluding the continued payment of salary, an employer is nonetheless obliged to pay an employee’s salary because in his letter to the employee he explicitly stated that the salary was suspended, according to a judgement given by Leeuwarden Court of Appeal on 29 March 2011.
The employee worked as an international truck driver
Following a prolonged absence due to sickness earlier in 2004, the employee had not performed the stipulated work since September 2005, as a result of various physical complaints. However, between August 2006 and January 2007 he did some driving work within the framework of “second track” reintegration (different work). In May 2007 the employer asked an employment counselling service to examine the employee’s reintegration possibilities. This service recommended support in finding different work with a different employer. However, the employee said that he did not want to apply for different work, and wanted to wait for the second opinion of the Employee Insurance Agency (UWV). The employer responded to this by writing a letter in which he stated that the payment of salary was suspended with immediate effect.
The UWV’s second opinion was that the employee was unfit on medical grounds to perform his own job, and also the adjusted driving job within the framework of the second track. The employee then proceeded to meet his reintegration obligations by externally seeking suitable work via a reintegration service, and claimed retrospective payment of the suspended salary.
The Court of Appeal ruled as follows
The employer had been entitled to stop payment of the employee’s salary when the employee ceased to meet his reintegration obligations, by refusing to seek different suitable work. However, the employer himself wrote in his letter that he was suspending the salary. This means that as soon as the employee started to meet his reintegration obligations again, the suspended salary would then have to be paid. The Court’s view is that the salary penalty is such a drastic measure for the employee that an employer may be expected to choose his words carefully. The employer therefore had to retrospectively pay the suspended salary.
There is a distinction between suspending the salary and stopping payment of the salary
If an employee fails to comply with regulations relating to the checking of his/her incapacity for work, the appropriate penalty according to the law is suspension of the salary. However, if the employee fails to meet his/her reintegration obligations, the employer is entitled to stop payment of the salary.
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