Former CFO v De Volksbank N.V. – Arnhem-Leeuwarden Court of Appeal, 30.05.2022 ECLI:NL:GHARL:2022:4294
Published on:
The Arnhem-Leeuwarden Court of Appeal held that De Volksbank’s former CFO worked under an employment contract, despite an agreement explicitly describing him as an independent contractor. The permanent full-time position, organisational integration, employment-like benefits and absence of commercial risk outweighed the CFO’s seniority and professional autonomy. The Court also found that his dismissal violated the prohibition on dismissal during sickness and awarded €270,000 in fair compensation.
1. Background and Legal Question
The former PwC partner began working for De Volksbank in January 2020 under an agreement titled “contract for services for a statutory director.” The agreement expressly stated that the parties did not intend to create an employment contract.
He worked at least 40 hours per week and became the bank’s statutory director and CFO. Following his dismissal, he argued that the relationship legally qualified as employment.
Explanation
The Court had to decide whether the CFO was genuinely an independent contractor or an employee despite the wording of his contract.
3. Benefits, Commercial Risk and Entrepreneurship
The CFO received paid holidays, sickness arrangements and insurance benefits associated with employment. His remuneration was administered through systems resembling payroll.
He did not share in De Volksbank’s profits or losses and bore no meaningful entrepreneurial risk. His earlier work through a management company at PwC did not change the nature of this specific relationship.
Explanation
Someone may be an entrepreneur in one role and an employee in another. The relevant question is how the person operates within the particular relationship being assessed.
4. Decision, Dismissal and Legal Significance
The Court of Appeal reversed the District Court and classified the relationship as an employment contract under Article 7:610 BW.
The corporate dismissal as statutory director remained valid, but terminating the employment relationship violated the prohibition on dismissal during sickness. The Court awarded:
€270,000 gross in fair compensation;
€9,659.30 gross in transition compensation; and
compensation for 28.5 outstanding holiday days.
Explanation
Because the CFO was legally an employee, he was entitled to employment-law protections and compensation despite the independent-contractor agreement.
Timeline
Court of Appeal
Sources
- https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:GHARL:2022:4294
- https://www.rechtspraak.nl/organisatie-en-contact/organisatie/gerechtshoven/gerechtshof-arnhem-leeuwarden/nieuws/2022/05/uitspraak-hof-in-zaak-ontslagen-cfo-volksbank
- https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBMNE:2021:3667
- https://wetten.overheid.nl/BWBR0005290/#Boek7_Titeldeel10_Afdeling1_Artikel610
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