Pursuant to the law, the court is authorised ex officio to moderate a wage claim that is based on the voidability of the dismissal if allowing the wage claim would have unacceptable consequences in certain circumstances. In its ruling of 16 April 2010 (National Case-Law Number: BL1532), the Dutch Supreme Court once again confirmed that the court must exercise restraint and further must give clear reasons for its decision. In the process, a court is obliged to consider all particulars of the case. As such, it is once again being made clear that wage moderation is certainly not something that goes without saying. Indeed, this is all the more reason for employers themselves to take measures after a summary dismissal to limit the financial risk of wage payment if the summary dismissal is reversed. This is possible, for instance, by means of conditional or unconditional termination proceedings.

In a case that was handled at the Court of Appeal, the employee was in the employ of the employer based on employment for a short period of time before being summarily dismissed. He apparently did not heed warnings from his employer and was absent without leave. The employee adopted the position that no duly valid summary dismissal had taken place, so that the employment relationship still existed. Subsequently, the employee demanded continued payment of salary up to the moment the employment relationship would end in a legally valid manner. The employer put up a defence against such a demand and argued, among other things, that the employee had not made sufficient effort to find a job elsewhere. In addition, a disparity would result if the employee’s wage claim was awarded, as he had in fact only worked for a short period of time. In and of itself a disparity would actually be cause for moderation of a wage claim, but a court must exercise restraint in doing so as well as give clear reasons therefor. According to the Supreme Court, the reasoning of the Court of Appeal was insufficient, so that the judgment of the Court of Appeal was quashed. In other words, the parties will remain without clarity on this issue for a while.

Melanie Breedveld