This is apparent from a decision made public yesterday by the Amsterdam District Court.
The waiter has been working for an Amsterdam branch of the Sumo sushi chain since 2017, with a contract for 5 to 10 hours a week. Last year, the restaurant had to close its doors for months due to the corona pandemic.
In May last year, the restaurant concluded a settlement agreement with employees, which stipulated that from June only actually worked hours would be paid.
Waiter refuses to deliver
After the lockdown in October, the employee asked for work via the app several times. Because he was unable to work as a waiter due to the closure of the restaurant, his employer offered him to deliver. But the man refused.
He did request the restaurant at the end of last year to pay his salary for November. The restaurant then announced that it would not pay him a salary for hours not worked.
In the end, however, the waiter was not satisfied. Last June, he demanded more than 4,100 euros net in arrears for the months of January 2020 to May 2021. According to him, his employer was legally obliged to pay him a minimum number of hours, based on his hours worked in the previous year.
According to him, the settlement agreement from May 2020 – with the provision that only hours worked were paid – could be made by the paper shredder, because it would have been concluded under duress.
The waiter also stated that he should have refused the replacement work as a meal deliverer, because that was a completely different job. In addition, he argued that he had no experience as a delivery person and that the delivery work would be unsafe because of customer contact.
Earlier this month, the Amsterdam subdistrict court ruled in favor of him only in part. Sumo has indeed to pay the man more than 1000 euros, because the restaurant failed to offer him a so-called ‘fixed employment rate’.
Restaurant had to survive
But at the same time, the subdistrict judge ruled that Sumo could have asked the waiter to deliver meals, given the extraordinary circumstances. “During the second lock down from October, it was necessary for the survival of the company to start delivering orders.”
According to the subdistrict court, the replacement work was not unreasonable either. For example, contact with customers is only of a very short duration, because payment is usually made digitally. The work is also not that different, according to the judge. “In both cases a lot of walking has to be done and there is contact with the customer.”
Because the waiter did not even want to try to deliver, the “not performing work from November 2020 should reasonably be for the account of the waiter”, according to the subdistrict court. That means he can whistle for his money over those months.
The waiter was still working for the sushi joint last June and July.