Text 27617, 83 rader
Skriven 2009-02-18 11:23:38 av Roy Witt (1:397/22)
  Kommentar till text 27613 av Michiel van der Vlist (2:280/5555)
Ärende: Contractual restrictions
================================
18 Feb 09 10:29, Michiel van der Vlist wrote to Roy Witt:

 MvdV>>> Here it has happened that peple got saddled with contract
 MvdV>>> specifying a try out period of over two month. During this try
 MvdV>>> out period the relation can be terminated - by both parties -
 MvdV>>> without cause.  The law limits it to a maximum of two month. So
 MvdV>>> a term of three month is automataicall void. But if the
 MvdV>>> employee does not know that, he may not contest it.

 RW>> OTH, if the contract is for 90 days and the company terminates him
 RW>> during the first 60 days, he may contest it.

 MvdV> And he will surely win. Whatever "win" is in such a case. It may
 MvdV> not be worth the cost of the lawyer.

He could be awarded another 30 days of salary, since the contract was for
90 days.

 RW>> Ignorance of the law may not be an excuse, but then, neither is
 RW>> taking advantage in contracts. Which the courts should find the
 RW>> company did in that case.

 MvdV> Wrong. Again.. As I told you many times, there is more than just
 MvdV> the written text of the law. There is also precedent, culture,
 MvdV> interpretation and tradition.

I see three items there that would be the main criteria, the law,
precedent and interpretation of the contract. Culture and tradition don't
seem to me to be as important, since culture and tradition can change at
any time.

 MvdV> The court would rule in favour of the employee, but not for the
 MvdV> reason you give.

Maybe.

 MvdV> A try-out clause is an option, it is not mandated by law.

We call that a 'probationary period', which gives the employer the
option of continuing the employee's employment or not, depending on
their criteria of judging performance. i.e. poor performance can lead to
an early termination of an employee. That's how it is here, of course.
Your mileage may vary in the NL.

 MvdV> The court would rule that as the clause about the try-out period
 MvdV> did not comply with the legal maximum, the clause was nul and void
 MvdV> and the contract were to be read as if there were no try-out clause
 MvdV> at all.

In the U.S., that clause would be given the 'blue pencil' test, where some
of the words are struck-out to clarify the clause. If it is still clear
about the clause's intentions, what remains will be used to make a
judgement.

 MvdV> And so the court would rule a case of "unjust dismissal" as the
 MvdV> proper procedure for dismissal was not followed.

That works here as well.

 MvdV> It would not get him back the job, but the company would probably
 MvdV> have to pay his salary until the proper procedure for dismissal was
 MvdV> followed, which could take up to six month.

I was once asked if I 'really' wanted my job back, after the company
demonstrated that they didn't want to employ me any longer. My position
was in an area where a lot of 'office' politics was going on and my side
was being eliminated one at a time. Even my boss got fired eventually.

Three years later I was working at the same company as a 'contractor',
which means that I was working there under contract by another company.
You should have seen the look on the face of the guy who fired me, 3 years
earlier. When he spotted me approaching him, all he could see were his
feet as we passed in the hallway.

                R\%/itt


"The man who reads nothing at all is better educated than the man
 who reads nothing but newspapers." - Thomas Jefferson


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