{"product_id":"vragen-4312-ik-ben-reeds-3-jaar-in-dienst-bij-een-bedrijf-en-we-ontvangen-allemaal-ieder-jaar-een-13de-maand-nu","title":"Am I entitled to a 13th month in the event of dismissal?","description":"\u003ch4\u003e Questioner\u003c\/h4\u003e\n\n I have been employed by a company for 3 years and we all receive a 13th month every year. Now I have resigned as of December 1st. Am I entitled to a pro rata part of the 13th month benefit? I have looked at my contract and the 13th month benefit is not mentioned in it. However, it was mentioned in my job interview and it has been paid to employees for years.\n\n\u003ch4\u003e Lawyer\u003c\/h4\u003e \nBased on the known case law, your question cannot be answered unequivocally. Judges can deal with this differently. The reason for refusing to pay this 13th month will be decisive. Examples:\n\n District Court of Breda 09-02-2000, JAR 2000\/67:\n\n Employee was employed by employer until 1 December 1998. The employment contract concluded between parties stipulated that payment of an additional 13th month would take place in December. Parties disagree on the question of whether employee is also entitled to a proportional part of this benefit, since he left employment before December.\n \nIn the opinion of the subdistrict court, the aforementioned provision does not state that an employee must be employed in December of any year in order to be eligible for the 13th monthly benefit of that year. Since a 13th month is by its nature nothing more or different than deferred wages, an employee is also entitled to the benefit if he leaves the company before the last month of the year. A 13th monthly benefit is accrued proportionally. Therefore, the employee can claim a portion thereof in proportion to the number of months worked in that year, in this case 11\/12ths of the total benefit.\n\n Amsterdam Court of Appeal, 09-11-2010, JAR 2011\/12:\n \nIn the employer's appeal, the court considers that it has not been established that the profit distribution as referred to in the employment contract has become a fixed thirteenth month. The employees received the distribution over three years, and it has been established that in 2006 it was announced that insufficient profit had been made, but that the director would nevertheless pay the distribution from his own pocket. This does not indicate the existence of a fixed thirteenth month. The letter from the works council is not specific enough to justify a different conclusion. The question then is whether the management was allowed to conclude that the operating result in 2007 did not allow the distribution. The court is of the opinion that this is the case. The management included the group result and future expectations in its considerations. These are factors that the management was allowed to take into account in the court's opinion. Since the group result was negative and future expectations were bleak, the decision not to make a profit distribution was not unacceptable by standards of reasonableness and fairness.\n \nIn case law it is unclear when annual, not entirely obligatory, payments become an acquired right. Judges tend to be reserved on this point, provided that the employer has applied a careful weighing of interests.\n\n I conclude that your claim is not entirely hopeless if you pursue it through the courts, but you must take into account that there is a chance that any judge could reject your claim on the basis of your employer's defence, which is still unknown to me.\n\n In my opinion, the chance that a judge will grant your claim is greater if the refusal to be invoked by your employer is based solely on your resignation. If, on the other hand, your employer invokes a business economic reason, it will be more difficult to have your claim granted.\n\n","brand":"Rechtswinkel.nl","offers":[{"title":"Default Title","offer_id":55019796922717,"sku":"","price":0.0,"currency_code":"EUR","in_stock":true}],"url":"https:\/\/www.rechtswinkel.nl\/en\/products\/vragen-4312-ik-ben-reeds-3-jaar-in-dienst-bij-een-bedrijf-en-we-ontvangen-allemaal-ieder-jaar-een-13de-maand-nu","provider":"Rechtswinkel.nl","version":"1.0","type":"link"}