Determining the end date of an employment contract is a subject that at first glance does not seem very complicated. Nevertheless, discussions about this regularly arise especially when it has been agreed that an employment contract ends on a certain date. To make it concrete: for example, if an employment contract ends on 1 March, is 28 February or 1 March the last work (and pay) day? And what about deadlines that start running? In early February, the Supreme Court clarified this to us once and for all.
NEED TO DETERMINE CORRECT END DATE
A correct determination of the last day of an employment contract is first and foremost, of course, important for the question of until when work is performed and wages must continue to be paid. In addition, it is important, if not more important, to determine what the correct end date is when expiry dates are involved. This is because due dates within employment law are so-called ‘fatal deadlines’. In other words, if you are a day, or even just a minute, late in making your claim, you really are too late and your claim will therefore lapse.
PETITION EXPIRY PERIOD
The issue the Supreme Court had to consider recently also concerned the expiry period for filing a petition. The employer in question had terminated an employment contract as of 1 March without granting a transitional allowance. The employee in question subsequently petitioned the subdistrict court because she still wanted to receive a transitional allowance from the employer. This petition was filed on behalf of the employee on 30 May, assuming that this was just in time within the three-month expiry period. However, the subdistrict court declared her inadmissible because the petition was filed too late, assuming that 28 February was the last working day.
The case then went to the court of appeal, which, unlike the subdistrict court, gave the employee the benefit of the doubt and ruled that, because of the use of the word per, the employment had not ended on 28 February but a day later, on 1 March, which would still have made the filing of the petition on 30 May timely.
The case then ended up before the Supreme Court, which disagreed with the trial court and upheld the judgment of the subdistrict court. The Supreme Court considered that the parties had not deviated from the starting point of Section 7:672 (1) of the Civil Code, which states that notice of termination of an employment contract is always given by the end of the month. According to the Supreme Court, an obvious and in practice common and easily manageable interpretation of the statutory regulation for the termination of the employment contract entails that the contract ends at the end of the last working day, as a result of which the employment contract no longer exists the following day.
If the parties have not agreed that the notice of termination is given by a day other than the end of the month, the employment contract therefore ends on that day, the Supreme Court said. The same applies to termination as of the first day of the following month. The employee’s employment contract had therefore already ended on 28 February 2018, so she had filed her petition seeking payment of the transitional compensation too late and was no longer eligible for her compensation.
With regard to expiry periods within employment law, the above means that an expiry period starts to run on the first day on which an employment contract no longer exists. Thus, in the situation described above, this was on 1 March and the three-month period expired on 28 May.
Despite the Supreme Court’s clarification on the use of the word “per”, we still advise employers to always mention in a confirmation letter what the last working day is, so that there is no ambiguity on this for the employee as well.
In addition, we advise employees not to run unnecessary risks with expiry dates because, apart from the aforementioned discussion about the end date, other complicating factors may come into play, such as the question of what to do with days that fall on the weekend, on a generally recognised public holiday or when February lasts a day longer than normal.
Any questions? Feel free to contact us.