Legal Assistance with Employment Contracts

Questioner

'After two temporary employment contracts, my employer is proposing a new permanent contract to me with a Relationship Clause, Confidentiality Clause and Secondary Work Clause. Of course, I have no intention of violating these, but the penalty clause linked to this is as follows: In the event of a violation of one or more of the prohibitions described in Articles 12, 13 and 14 of this employment agreement, the employee shall forfeit to the employer a fine, immediately due and payable without notice, notice of default or judicial intervention, of three gross monthly salaries for each violation and a fine of half a gross monthly salary for each day or part thereof that the violation continues, without prejudice to the right of the employer to recover the actual damages suffered from the employee as well as compliance. The parties hereby expressly deviate from the provisions described in paragraphs 3, 4 and 5 of Article 7:650 of the Dutch Civil Code. I have difficulty with the fact that my employer, if he believes that I have committed an offence 'without a warning, notice of default or judicial intervention', can impose a fine of a quarter of a year's salary. And with this he also declares sections 3, 4 and 5 of the BW art. 7:650 invalid. It can therefore happen that, if I make a mistake without being aware of it, my employer can decide to withhold a quarter of a year's salary or more, I have to prove that I did not do this intentionally, and the costs of legal proceedings are at my expense? Should I accept this, can I refuse this, or can I ask for financial compensation in my salary, for example to take out legal insurance?

Lawyer

Dear questioner, I believe that the provision is valid as such. The employer may deviate from Articles 3,4 and 5 of 7:650. (see 7:650 paragraph 6 of the Dutch Civil Code). I am not convinced that the amount of the possible fine is fair. Such fines are often reduced by a judge, of course depending on the situation. If the penalty clause is invoked against you, you can always turn to the judge. I then advise you to work together with a dismissal lawyer.

Lawyer

Such a clause may be agreed upon, but the penalty is excessively high. I therefore advise you to negotiate about this (1 month's salary is more reasonable). For more normative information, you can contact one of the labor law attorneys here directly, without obligation, e.g. via the 'direct contact' link that you will see with this answer - if you are logged in.