An assistant broker with a full-time permanent contract reports sick. After 700 days of absence, the company doctor advises to gradually build up to the own work. The employer considers this impossible and does not cooperate.
Nine months later, according to the company doctor, there is no longer any restriction on hours
The assistant broker claims his full salary for the period since the build-up advice from the company doctor. How does the judge rule in summary proceedings?
Considerations of the judge in summary proceedings
As regards the nine-month period, it cannot be determined whether and to what amount the employee is entitled. After all, the parties disagree on the question of whether there is (any) wage value and what the amount should be for the work to be performed by the employee. In a build-up schedule, the company doctor indicated that the employee must build up to 75% of his own hours and own tasks in full. But this was not applied. The claim for payment of the outstanding salary for the nine-month period is therefore dismissed in summary proceedings.
However, this does not apply to the wage claim for the salary over the period thereafter. After all, after those nine months, the company doctor has indicated that there is no longer a restriction on hours per day or per week. The employee’s failure to work during this period is not due to incapacity for work due to illness, but to the circumstance that the employer has not given him the opportunity to perform his duties. This is at the expense and risk of the employer. This means that the employee is entitled to continued payment of 100% of his salary from the nine months onwards.
Note: The employer apparently had reasons not to want this then still disabled employee in the office after almost two years of absence. That does not mean that he is not liable for salary if it is established that the employee is now fully capable of working.