The Netherlands: Hospitality Industry Employee’s Duty to Complain

The complainer in the late-night bar 

There is a lot of complaining going on in the Netherlands — about the weather, the food, our colleagues and much more. Complaints are also made in the hospitality industry, by guests for example, and by employees. But did you know that employees also have a duty to complain? This is explained below.

Not complained, nothing gained

Dutch law requires employees to submit complaints to their employer within a reasonable time after they discover or should reasonably have discovered a defect in performance of the employer’s duties. An employee who fails to do so may no longer rely on that defect. There is, therefore, a duty to complain. Not complained, nothing gained.

The Late-Night Bar judgment

The duty to complain is now also regularly the subject of labor litigation. An employee of a late-night bar complained to his employer that he was not being paid overtime for his work after closing time. According to the complaining employee, this was in violation of the Collective Labor Agreement for the hotel, restaurant and café industry. The late-night bar argued that the employee had breached his duty to complain because for years the paychecks had listed which overtime hours were paid. The late-night bar therefore believed that the employee was no longer entitled to back pay for the overtime worked after closing time. After all, the employee had received his paychecks each month showing the recorded overtime hours paid. The Amsterdam Appellate Court disregarded the argument that the employee did not dare to complain because he was afraid of losing his job if he did. 

The employee did not leave it at that and pressed on with his complaint before the Dutch Supreme Court. He argued before the Supreme Court that there was not a "defect in performance," but rather a failure to perform at all. After all, the employee had never been paid for his work after closing time. As a result, the duty to complain did not apply, according to the employee's complaint before the Dutch Supreme Court. Again, however, the employee's complaint fell on deaf ears. "The failure to pay a wage or overtime pay in full is not, by its nature, a failure to perform at all," the highest court found. 

In a nutshell, the employee had waited too long to complain and did not receive his overtime pay.

Fail to complain and risk being passed over

The Late-Night Bar judgment has been a wake-up call for employees. Employees who fail to complain risk being passed over. So, more and more complaints are being aired under labor law. And because employees need protection, in the vast majority of cases judges rule that employees have not been too late to complain. 

Earlier this year, however, the Zeeland-West-Brabant District Court ruled that an employee who worked on a shift roster had been too late to complain about being entitled to overtime pay. The employee claimed that he had been required to carry out work before and after clocking in and out. But because the employer could no longer find that out due to the long time the employee took to complain, the duty to complain was breached.

Conclusion

Employees have a duty to complain if they want to claim overtime pay, allowances and other wage components. A failure to complain promptly results in a loss of entitlement. There is, therefore, a duty to complain. Not complained, nothing gained. The Late-Night Bar judgment has given the duty to complain a more prominent role in labor law and has given business owners in the hospitality industry an additional argument for stating that they are no longer required to pay overtime pay, allowances and other wage components.