A fixed-term contract can be entered into for a specific period but also for a project, where the termination of the project then signifies the end of the employment contract (the resolutive condition). With the increase of this type of flexible contracts, a useful ruling from the cantonal judge Amsterdam (JAR 2017/260).
This case concerned an employee who started working for the employer as a secretary on January 1, 2017. The agreement was made for “the Secretary project” at UWV and ends by operation of law when the project ends. On April 25, she reported sick to the employer. The employer then informed the employee that UWV had terminated the assignment as of April 25, 2017, and that the employment contract was therefore also terminated as of that date. The employee claims that the employment contract was not validly terminated and that she is entitled to continued payment of wages. The employer files a counterclaim for dissolution.
The employer argues, among other things, that the employment contract between the parties is a temporary agency contract pursuant to Article 7:690 of the Dutch Civil Code with a temporary agency clause (i.e., that the contract automatically ends if the client terminates the assignment). The subdistrict court judge considers that the employment contract cannot be regarded as a temporary agency contract. It is important that nowhere in the contract is there any mention of “temporary agency work” or “temporary agency contract” or similar terms. Since a temporary agency contract provides the employee with less legal protection than a regular employment contract, this must be clearly indicated to the employee.
This does have some characteristics of it, but since the agreement is nowhere referred to as a temporary employment contract and is instead described as a part-time employment contract, it is not sufficiently established that the parties intended to enter into a temporary employment contract. The employment contract has also not ended because the UWV indicated it was terminating the assignment to the employee. The assignment to the employee is not the same as the “Secretary project” of the UWV.
The employer has not shown anything indicating that the termination of the assignment by the UWV has taken place. Only an email from the UWV has been submitted, stating that the employee herself allegedly indicated that she would no longer return. The UWV has said nothing about the ending of the Secretary project, but only stated that “the assignment to the employee” has ended. The “assignment to the employee,” however, is not the same as “the Secretary project” of the UWV. Confirmation that the project as such has not ended also follows from the UWV email which does mention that the employee’s tasks have been taken over by another employee. Since the end of the employment contract is linked to the end of the project, it is decisive whether the activities of this project have ended, and this has not been demonstrated. The employee rightly stated that the time of termination of the employment contract cannot be determined objectively, that is, independently of the will of the parties. Such an interpretation of the concept of project in this case would mean that the employer, or with her consent the UWV, has full discretion to terminate the project for which the employee was hired by ending the assignment to the employee. According to established case law, this is not a fixed-term employment contract, but in this case, it is a contract for an indefinite period.
A valuable lesson for the secondment agency then. A resolutive condition is possible, but it must be formulated very precisely.
