Since January 1, 2015, employers have had an obligation to give notice. This obligation entails that the employer must announce in writing to the employee with a fixed-term employment contract (of six months or longer), no later than one month before the end of that employment contract, whether the employment contract will be extended. It must also indicate, if applicable, the conditions under which the employment contract will be extended.
If the employer fails to do so, the employer shall owe the employee compensation equal to the amount of wages for one month (excluding vacation allowance). If the employer fails to give timely notice of the employment contract, the employer owes the employee pro rata compensation.
Despite the fact that the law clearly states that the notice must be given in writing, case law in recent years has alternated on the question of whether the written notice can nevertheless be omitted under circumstances and thus the employer does not owe a notice fee if no written notice was given. In a judgment dated October 7, 2022, the Supreme Court finally ruled on this question.
Case study
In the case presented to the Supreme Court, the employer had orally informed the employee in a timely manner that his employment contract would not be renewed. The employee had also found another job as of the termination date, so the employee had not actually suffered any disadvantage by not (also) receiving a written notice. In these proceedings, the employee requested that the employer be ordered to pay a notice fee of one month’s salary. This was because the employer had not informed him in writing at least one month before the employment contract ended that the employment contract would not be continued. The court ruled that there was no unacceptable claim by the employee to pay the notice fee.
Supreme Court ruling
The Supreme Court considers the complaint raised on this issue in cassation as follows:
“The regulation of the duty to give notice in Section 7:668 of the Civil Code is of mandatory law. This provision aims to strengthen the position of the employee with a fixed-term employment contract in such a way that he obtains clarity in a timely manner by means of a written notice as to whether or not his employment contract will continue. In doing so, the legislator deliberately chose that the employer who does not comply with the obligation to give written notice is liable to pay the notice fee. It can be deduced from the foregoing that the severance pay is partly in the nature of an incentive to comply with the obligation to give written notice. It is in keeping with this character to assume that the severance pay is always due in the event of non-compliance with the written requirement, even if it was clear to the employee by other means that the employment contract would not be continued or if the employee did not suffer any disadvantage due to non-compliance with the written requirement. In light of the foregoing, the plea is unfounded.”
