In a 2013 case, a judge in Rotterdam decided that the expatriate employment contract under which a Cape Verdean employee performed work in the Netherlands, was a temporary employment contract. According to the judge, this expatriate employment contract was only a temporary addition to the permanent employment contract, which was concluded on Cape Verde.
In this specific case, the employee started working at an international company on Cape Verde in 1998 as a traffic agent. Her employment contract became of permanent duration in 2003. In 2005, the company decided that the employee would come to the Netherlands to work here. She would come for one year on the basis of a temporary employment contract.
Ultimately, the one year period was extended until 2008. In the same year the employee returned to Cape Verde. The employee was required once more in the Netherlands as from June 2009. She started working in the Netherlands again on a temporary contract for the duration of one year. At the end of her one year employment, they implicitly extended her employment contract for one more year. In 2012, her Cape Verdean employer decided to terminate her employment contract in the Netherlands per June 2012. He expected her to return to work on Cape Verde.
In the meantime, the employee had built her home in the Netherlands, and refused to go back to Cape Verde. She argued that her employment contract in the Netherlands was not legally terminated. In her opinion, the employment contract she concluded in Cape Verde was no longer valid. She stated that the employment contract she concluded in the Netherlands replaced the employment contract concluded in Cape Verde.
Furthermore, she argued that the temporary contract concluded in the Netherlands automatically became a permanent employment contract as it succeeded a temporary contract within three months, as is in line with Dutch law*.
She claimed employment in the Netherlands and salary as from June until her employment contract was legally terminated in the Netherlands.
On the other hand, her employer argued that the employee had maintained her permanent employment contract concluded in Cape Verde. During the period of employment in the Netherlands, she had temporary employment contracts while her indefinite employment contract was ‘sleeping’.
The judge shared the view of the employer. He confirmed that the expatriate employment contracts were only temporary additions to the indefinite employment contract of the Cape Verdean company. The judge mainly based his opinion on the fact that in the first expatriate employment contract it was explicitly agreed that the employment in the Netherlands was only for a definite period. Moreover, it was explicitly agreed that the employee would return to Cape Verde after this definite period to do her originally agreed work. Therefore, her employer could evoke her to return to work in Cape Verde.
Expats, what does this mean for you?
In case you are working in the Netherlands on the basis of an expatriate employment contract, be aware that this could be called a temporary employment contract. You might be called to your original place of work again.
If you need advice about your legal rights according to your employment contract, contact one of our legal experts.
*In 2015, the Dutch law was amended. Instead of 3 months in between consecutive temporary contracts, employees now have 6 months.
Godelijn experienced an international upbringing and education as an expat child living in Africa and England. Back in The Netherlands, she studied law at the University of Utrecht (1990). She then embarked on her legal career as a lawyer by working 10 years for the well-known law firm of ‘Wladimiroff en Spong Advocaten’. In 2000 she joined GMW lawyers as a partner and is the head of the Labour law and Pension section.
Godelijn specialises in international employment law and has extensive experience in dealing with both non-contentious and contentious international employment matters including (collective) redundancy packages and dismissal. She works for both companies and individual employees, enabling her to keep an open mind to both sides of a case. Naturally she helps her clients when a problem has arisen, but prefers to act before an escalation has taken place. Advice on a fair Human Resource policy is an essential part of her work.
Godelijn Boonman is considered to be the undoubted employment specialist for the expat community because she is bilingual, has a large international clientele and a wealth of experience in international employment law matters. She is therefore frequently asked to be the key note speaker at international seminars.
Godelijn has a keen interest in the international community and is a member of the advisory board of ACCESS .