This question was raised when a truck driver was injured for the umpteenth time during the futsal.
The employer had at an earlier stage several times with the conscious driver talked about his sickness absenteeism. During these talks, he advised him to choose another sport there are frequent omission had cost the company a lot of money.
The driver had no intention of giving up his hobby and got injured some time later.
Was the last straw for the employer and the driver short on his wages. To underpin this were an article of the Collective Agreement for goods transport by road. It states that, in principle, the employer is obliged by illness to supplement the sickness benefit from 70% to 100% of salary payable. Here, however, an exception is made if and when the illness is caused by own fault and that fault. The employer was clearly applicable and considered it a possibility of reduction.
Naturally, the driver did not quite agree and initiated a case before the Cantonal Court in Arnhem to make the discount undone. The Subdistrict Court of First Instance gave the driver the same and ordered the employer still going to pay the back wages on. The basis for this decision lies in Article 629 paragraph 3, Book 7 of the Civil Code which states that the right to discount only exists if there is intent on the part of the employee. The court decided that the article in the conscious collective agreement just trying to find connection with the said article in the Civil Code. Since there was no question in this case, in the opinion of the Court of intentional discount was therefore not allowed.
On appeal, the Court in Arnhem, the employer decided in favor of maintaining that there is another criterion mentioned in the CAO indeed. Given that the employee based on the history could have known that the conscious sport for him was an unacceptable risk of injury is, in the opinion of the Court that in fact own fault and that fault. The discount on the wage was consequently granted yet.
- the CAO uses a different criterion than the law. In other collective labor agreements, eg. The hospitality and temporary employment has found a better connection. The aim is in most cases bad evidence. The burden of proof lies with the employer for this. Unless there is something on video is that the employee requests a third party deliberately injuring him so with a view to becoming disabled, the proof will be very difficult. The criterion own fault and that fault is an easier provable criteria. Who no particular reason from the skylight at 5 meters altitude jumps may feel that the chance is great that he broke an ankle or worse. Then if that happens and the victim complains one will say soon ?? own fault ??, you've done to yourself. He does this not to have done with the intention to break something. After all, it does not always have to walk out wrong. Intent is therefore no question.
- To what extent an employer may extend as far interfere with the privacy of the employee? This is much more a question of conscience. There are numerous studies that show that exercise is good for physical and mental health and therefore good for an employee and therefore also good for an employer. Personally I think that there are situations conceivable in which the interest of the employer is so great that he can go about this in discussion with an employee. Finally, both parties have signed an agreement with each other in which one party undertakes to performed labor for the benefit of another party for which that person paid a reward. If it turns out that the employee is unable to systematically to carry out the agreed work it seems to me that the other stipulated wage is entitled to submit for discussion. Again sports is good, but perhaps depending on the type of work, not every sport. In the case above, I think it would have been completely different if it had affected an office worker instead of a driver on a truck. The first could just most likely work with a foot or knee injury.
Does this ruling now reaching implications for future situations? In my opinion not. This case is mainly influenced by the conscious collective agreement. The remainder will always be the law applicable and as mentioned structure will remain difficult to prove.