Background

In the Netherlands, an employer must inform an employee one month prior to the end date of the employee’s fixed-term employment contract at the latest whether or not the agreement is to be renewed (Article 7:668 of the Dutch Civil Code). The question of whether an employer has complied with this obligation is often under debate. In a recent ruling by the court in Rotterdam, for example, it was disputed whether an employer had provided notification of termination of a fixed-term employment contract to an employee.

In summary, the employee had filed a wage claim against the employer. The employer took the view that it did not owe the employee any wages, since it had informed the employee in good time that the employment agreement would not be renewed. The fixed-term employment agreement had, according to the employer, therefore ended by operation of law.

The employee contested receipt of the notification by the employer. Since the employer asserted that the letter had been sent, the employer was expected to provide evidence accordingly. The employer did so, by first entering into evidence the letter of notification. Subsequently, the employer showed the court that the email in which the letter was sent to the employee in fact appeared in the relevant email account under ‘sent items’. The employer demonstrated this in court on a laptop.

The court’s decision

The element considered decisive by the court was the fact that the employer had also informed the employee of this notification of non-renewal by WhatsApp message. The employee contested receipt of the WhatsApp message by the employer. By way of proof, the employee showed print screens of her mobile phone that showed that she had not received any messages from her employer in the period that the message had supposedly been sent by the employer.

In court, however, the employer showed the presiding judge his mobile phone to demonstrate that the messages had been sent. Alongside the message were two blue ticks. The court concluded from those that the message had not only been sent, but also that the employee had received and read the message. WhatsApp displays two blue ticks alongside a message as soon as that message has been opened by the recipient. As stated in a previous ruling by the court in Groningen (ECLI:NL:RBGRO:2012:BY2140), these blue ticks provides conclusive proof that the message was delivered to the recipient’s phone and that the recipient opened the message.

According to the court, this established that the employee must have received the notification and must also have opened it. Therefore, the employment agreement has ended by operation of law. For that reason, the employee was not entitled to the salary payment claimed.

Comment

This ruling shows that when it comes to providing evidence of receipt of a letter by an employee, an employer may use all possible means available. The days of a transmission receipt from the fax machine may be long gone, but fortunately modern technology also allows for adequate means of proof.