Until May 2015, an employee worked 36 hours a week in the position of Allround Operator Production for a gross monthly salary of € 3,153.44. In May 2015, the employee became incapacitated for work and two years later, in May 2017, he was awarded a WGA benefit. As part of his reintegration, the employee has resumed his original work as an operator for 12 hours a week at a gross monthly salary of € 1,051.04.
In 2018, the employee became ill again and was unable to work the remaining 12 hours a week. An IVA benefit was subsequently awarded to the employee. The employment contract has been terminated by the employer after permission for dismissal from the UWV has been obtained.
In that context, the employer paid the employee a transition payment, calculated on the basis of the last-earned salary, which was based on a 12 hours per week contract. The (heirs) of the employee took the position (among other things) that the transition payment should have been calculated on the basis of the full salary of the 36 hours per week that the employee had worked until 2015.
The court refers to the Kolom decision of the Supreme Court and establishes that in this case the conditions set by the Supreme Court for the creation of the right to a (partial) transition payment in 2017 have been met: structural loss of hours of more than 20% of the original number of hours, and that loss of hours was the result of compelling circumstances, namely the (permanent) incapacity for work of the employee. According to the court, this means that now – at the end of the employment contract – the employee can still claim the transition payment calculated on the basis of the wage for the original 36 hours.
Unfortunately, the court hardly motivates why in the given circumstances the former number working hours should be the basis of the calculation: the court only refers to the general purpose of the entitlement to the (partial) transition payment, which would follow from the decision of the Supreme Court.
It may go a bit far to ask employees to immediately request payment of a partial transition payment when the hours are adjusted. This certainly applies if it is not clear yet whether a situation is structural and sustainable or not. In that sense, the solution chosen in this case is pragmatic and practical.
In view of this ruling, employers should in any case take into account that for years after an adjustment of working hours, the original contract hours and the corresponding wage must be taken into account when calculating the transition payment.