What is the case about?

On 20 September 2024, in two similar cases (see ruling 1 and ruling 2), the Supreme Court ruled on the question of whether the duty to complain under Article 6:89 of the Dutch Civil Code also applies within employment law, more specifically to wage claims.

The duty to complain means that the creditor (in this case, the employee) must protest in time to the debtor (in this case, the employer) after he has discovered or reasonably should have discovered the deficiency. It is assumed that the duty to complain only applies when there is a defect in the performance and not when there is no performance at all. If the reliance on the duty to complain succeeds, this leads to the lapse of the creditor's right of action.

The Supreme Court rulings concern two cases of different employees with the same employer. Both employees started working for the employer in 2011 in the position of café staff employee, at an hourly wage of € 12 gross, and claim wages for overtime, in line with the applicable collective bargaining agreement (collective bargaining agreement Koninklijke Horeca Nederland).

Case 1

The first employee was employed until 11 June 2018. In November 2018, he informed the employer, among other things, that he was expected to work at least an hour longer after closing time to clean up, while, according to him, those hours were incorrectly not paid. In connection with this, the employee argued that he was entitled to back pay (plus the statutory increase) and claimed the payment for any overtime hours worked but not paid. The subdistrict court and the court of appeal rejected the employee's claim.

Case 2

The second employee stopped working in 2017 due to a burnout. In April 2018, he informed the employer that he did not receive sufficient salary. The employment agreement ended on 1 November 2018. The employee claims payment for overtime worked but not paid.

The subdistrict court and the court of appeal rejected the claims in both cases, based on the argument that the employees did not complain within a reasonable time (pursuant to Article 6:89 of the Dutch Civil Code) about the fact that they were not paid for worked overtime hours. According to the court of appeal, it should have been up to the employees to complain about this in a timely manner, i.e. from the moment that they could have noticed on their payslip that not all overtime was paid. In the court of appeal's opinion, however, the employees failed to do so, as a result of which the court of appeal rejected the claims. The employees appealed to the Supreme Court.

Supreme Court ruling

The Supreme Court first of all stated that the obligation to complain under Article 6:89 of the Dutch Civil Code applies in principle to all obligations, including those arising from an employment agreement and the obligation for the payment of an amount of money. According to the Supreme Court, this does not alter the fact that the nature and content of the legal relationship and the nature and content of the performance are circumstances that are relevant in assessing whether the creditor has complied with its obligation to complain. The Supreme Court emphasises that it is important that, in view of the purpose and wording of Article 6:89 of the Dutch Civil Code, this section refers only to cases of unsatisfactory performance and not (also) to cases in which no performance at all has been made. According to the Supreme Court, the failure to pay wages or overtime compensation in full is not by its nature a failure to perform at all, but should be seen as a defect in the performance. Whether partial performance or no performance at all occurred in a specific case depends on the circumstances of the case, the Supreme Court notes, and this will therefore have to be assessed on a case-by-case basis.

The Supreme Court further considered that in these cases, the court of appeal had failed to provide incomprehensible reasons as to why the employees did not fulfil their duty to complain, since they did make it known to their employer that they believed that they were entitled to compensation for overtime. The following question is in that case whether the employer can invoke the duty to complain, and successfully argue that the employees complained too late. In both cases, the Supreme Court considers it important that from the employees and their other colleagues, who were in the same situation, it could not be expected that they complained on a monthly about the violation of the collective labour agreement, as this would put their employment at risk. The Supreme Court also considered that, given the intimidating attitude of the employer, it was logical that the employees did not follow-up with any claims for wages until 2017. The Supreme Court nullified the judgments of the Amsterdam court of appeal, and referred both cases to The Hague court of appeal.

Significance for practice

For practice, it is first of all important that the obligation to complain applies in principle to all obligations under the employment agreement, including wages. In practice, this will often involve not only the correct (basic) salary, but also overtime payments, bonuses, holiday pay and irregularity bonuses. The line that existed until a few years ago (from which it followed that the duty to complain would not apply to payment of a sum of money, because the duty to complain would only be intended for cases where there was a lack of quality and not an under-delivery or under-payment) has now been abandoned.

It is worth noting, however, that the Supreme Court has previously ruled that the duty to complain does not apply when a non-competition clause is breached. The obligation of a (former) employee under a non-competition clause is an obligation to refrain from the actions described in the clause. According to the Supreme Court, violation of such a clause does not constitute insufficient performance, but constitutes non-performance in its entirety (see Supreme Court 8 March 2024, ECLI:NL:HR:2024:336).

It remains to be seen what the significance of the recent rulings will be in practice. Although, in principle, the obligation to complain does apply if the employer has not paid enough salary the employee, it may be difficult for the employer – given the relationship of authority that is by definition present in an employment relationship – to successfully invoke it against the employee. A restrained review by the courts thus might remain the basic principle for the time being. In any case, it is important for employees to approach their employer in time, so that a failure to complain can in any case not be held against them.