Obligation to complain in employment law

Suppose the employer pays an incorrect number of overtime hours. As an employee, should you then complain about this in a timely manner? The duty to complain is rarely applied in case law. Recently, the Amsterdam Court of Appeal made an interesting ruling and explained the conditions under which the employer can rightly invoke the duty to complain.

The duty to complain actually states that if employee does not complain in time, his/her claim will lapse. The Supreme Court has previously ruled that the duty to complain applies to all obligations, thus including the employment contract. However, it is not easy for an employer to successfully invoke it. This is mainly due to inequality compensation. This is because the protection of the employee against the large employer is central, and this is not compatible with the duty to complain.

The case involved a catering employee who was employed by employer from 2011 to 2018. After leaving employment, she sent a letter to employer that the collective labour agreement had been incorrectly complied with with regard to the engagement and payment of overtime.

The subdistrict court granted a small part of this. On appeal, with regard to the overtime, the employer indicated that employee had not complained in time. He should - in short - have complained earlier. The Court of Appeal upheld this appeal.

In what does the appeal for breach of the duty to complain succeed in this case?
The employee knew that overtime was paid, as he could see this on his pay slip. Nor was this case about occasional overtime, but structural overtime. He could see monthly on his pay slip that overtime was/is not paid. Another important point was that the collective agreement gave the employer the option of compensating overtime in time. Only if this was not possible, then employer had to compensate in cash. Since the employee in this case complained only after leaving employment, the employer could no longer offset the hours against time. The employer suffered damages as a result.

Specifically, therefore, the employer can - under circumstances - justifiably invoke breach of the duty to complain if:

1. Employee was aware of his/her rights (in this case, the employee knew because overtime was paid, but too little);
2. Employee did not/not complain in time;
3. Employer suffered a disadvantage due to not/not timely complaining (in this case, the employer could not compensate in time).

Especially the last part will pose a problem for many employers, because not every collective agreement has a time-for-time arrangement. Then you have the problem that an employee can no longer check how much overtime has been worked? However, this is the employer's responsibility. The employer should still have the documents, as there is a 5-year limitation period.

So a reliance on the duty to complain is indeed possible under circumstances, but the employer really has to meet certain requirements.

Translated with www.DeepL.com/Translator (free version)