Yes, it will happen to you as an employee or as an employer: a situation arises where the question comes up, "Is there disability and/or a labor dispute? This is not an easy question to answer. So let's start at the beginning: what is a labor dispute?

A labor dispute

Conflict literally means clash, struggle, difference of opinion. In practice, we speak of a conflict when there is a situation in which two or more parties have different opinions, feelings or needs and neither party is willing to accommodate the other. It can also be when two or more parties disagree with each other's point of view and are unable to mutually respect these different views.

If we translate this explanation to the employment situation, it means that when the employer wants something the employee does not want or vice versa, it creates a labor conflict.

There is a labor dispute according to the STECR workbook definition:

"two individuals, an individual and a group or two groups, within the boundaries of a labor organization, have a labor dispute if at least one of the parties feels that the other party is thwarting or annoying it. This may relate to job content, labor relations, working conditions or terms and conditions of employment."

Suppose: a performance review has taken place in an employment situation where the employee and the employer do not agree on how to fill the position.

Some conversations between the two have taken place but the situation does not improve and escalates. The next day the employee calls in sick. The employer and the employee sit down again. However, the employee insists on calling in sick.

Then what?

The employer must report the employee sick. The company doctor may ask about the (possibly medical) reason behind calling in sick and looks at the employee's workload capacity. The following situations may then arise:

1. There is no impaired load capacity; there is a conflict;
2. There is reduced workload and conflict.

Situation 1

Thus, if situation 1 exists, there is no reduced workload. However, the employee does not work. If so, since January 1, 2020, if there is no work, wages must still be paid unless the failure to work is for the account and risk of the employee (Article 7:628 BW). The question is whether not working is for the employee's account and risk. Rulings from the various courts are not unequivocal in this regard.

The company doctor will include in the advice that there is no question of reduced work capacity and will advise to hire an expert, which in most cases will be a mediator. If the parties cannot reach an agreement with a mediator, a so-called settlement agreement (the parties negotiate the terms of the termination) or the intervention of a lawyer or a judge will result in the termination of the employment. It must then be demonstrated that everything has been done to resolve the conflict and that reinstatement is not possible. A transfer fee will then also have to be paid.

Situation 2

If there is situation 2: there is a reduced workload and a conflict. The company doctor must then act in accordance with the applicable guidelines with the aim of reporting recovery as soon as possible. The applicable guidelines are described in the STECR guideline "Workplace Conflict".

One of the stated goals is, "To put more emphasis on resolving the conflict situation and as little as possible on the disability question. This is also described as the "medicalization" of labor conflicts. However, it must be prevented that situations in which there is indeed (also) disability are not recognized as such."

Disability

If the company doctor considers that there is incapacity for work, both parties are obliged to find solutions and reintegration. The following steps are then required:

1. Starting mediation;
2. Follow the steps as mentioned in the STECR workbook labor conflict, this guide should also be used by the company doctor;
3. Exploring opportunities in a different place/position within the organization (1st track);
4. If that is not possible, the reintegration will have to be carried out outside the own employer (2nd track);

If one of the parties does not want to cooperate with the proposal for mediation without good reason, this can lead to a long-term disability in which there may have been missed reintegration opportunities. If the UWV, during the WIA assessment, finds that there have been missed reintegration opportunities, a wage sanction may be one of the options.

Keep up the conversation

Bee Puls We advise you to strive for a healthy organizational culture in which managers and employees talk openly and honestly with each other and giving feedback is normal. Constantly talking to each other reduces the chance of a labour dispute. The Occupational Assessor from Puls In addition to the company doctor, they can have a guiding and advisory role in this process. Would you like to know more about this? Please feel free to contact us for more information.