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Employee entitled to salary if unable to work due to homemade fireworks?

17 January 2022

New Year's Eve is over and the new year has begun. Normally, kilos of fireworks are shot into the air on New Year's Eve. Lighting fireworks is a risky activity, especially when it concerns homemade fireworks. What happens if an employee lights  his own fireworks and becomes unfit for work as a result? Is the employee still entitled to continued payment of wages during illness? This question was answered by the subdistrict court of Leeuwarden in early 2021.

This case involved an employee with the position of a tile-layer. In his shed, he was mixing substances to make gunpowder, and ultimately to make his own fireworks for New Year's Eve. He also this in previous years. During the mixing process, the substances exploded and the employee sustained serious injuries to his wrist and hand, which left him completely unable to work. The employee's wife informed the employer of the accident and reported him ill.

The company doctor then reported that the employee's recovery would take a long time. A week later, his employer stopped paying the employee's salary because, according to the employer, the employee had taken a particularly high risk with his actions which qualified as conditional intent.

Continued payment of wages during illness, unless intentional

If an employee is unable to work due to illness, he is entitled by law to continued payment of 70% of his salary for 104 weeks. An employee is not entitled to continued payment of wages if, among other things, the illness was caused by intent. The intention must be aimed at the occurrence of the inability to work.

Ruling of the court

The court considered that this was not a case of conditional intent (the criminal variant), which already exists if the defendant has acted in a very risky manner. In this case there must be actual intent, which is aimed at the occurrence of inability to work.

According to the court, it is not plausible that the employee had the intention to injure his hand and become unable to work, but only intended to create fireworks. Therefore, there is no question of actual intent and the employee is therefore entitled to the statutory continued payment of 70% of his wage.

Reasonableness and fairness

In the event of inability to work, the CLA for the Construction Industry increases the continued payment to 100% and does not provide a regulation which reduces this in a case like the one in question. The employer should therefore, pursuant to the CLA, continue to pay the employee his full salary.

However, the judge was of the opinion that, in view of the cause of the inability to work, it could not be ruled out that in proceedings on the merits, it would be ruled to be unacceptable for the employer to continue paying 100%. Therefore, in these preliminary relief proceedings, the wage claim was awarded up to 70% of the salary.

Conclusion

This judgment shows once again that intent aimed at inability to work is only assumed in very specific cases. The requirement of intention is only met if the intention is actually aimed at inability to work.

There is, however, a possibility for an employer in a case like this to only continue to pay 70% of the salary. If an employer is obliged to continue to pay 100% during illness (by the CLA or employment contract), an exception can be made regarding the additional 30%. For example, the employment contract or CLA can state that an employee who has become unfit for work through 'his fault or cause' is only entitled to continued payment of the statutory 70%.



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