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Employee's claim for adjustment was statute-barred 

by Henriette Stakemann

Published: June, 2017

Submission: June, 2017

 



Following an industrial arbitration award in 2012, a teacher in an educational institution became aware that, for a long time, he had been subject to a wrong collective agreement and had therefore not received enough salary. Against this background, a dispute arose regarding, inter alia, adjustment of salary, overtime pay, holiday pay and pension contribution for the period 1 October 2007 - February 2009. Judgment of 30 May 2017 from the Danish Eastern High Court.

Pursuant to Section 4 (1) of the Danish Limitation Act, employment law claims become statute-barred after 5 years. In this case, the repayment obligation was acknowledged more than 5 years after the last outstanding claim. The question was whether the fact that the employee had not been aware of the legal basis of the claim until after the issuance of the industrial arbitration award could suspend the statute of limitation. Moreover, the question was whether the educational institution's dialogue with the employee about the claim had interrupted the statute of limitation.

The employee argued that the statute of limitation must have been suspended until the issuance of the arbitration award. In his opinion, it was not until this time that he had been aware that he had been subject to the wrong collective agreement.

The Eastern High Court referred to the Supreme Court judgment U 1997.1633 H, according to which the fact that the employee had not been aware of the legal basis of the claim until after the delivery of a judgment did not interrupt the statute of limitation. The High Court found that this should also be applicable to industrial arbitration awards.

Furthermore, the High Court found that the employee's dialogue with the employer about the correct collective agreement did not interrupt the statute of limitation. Consequently, the employee's claim for adjustment was statute-barred, and the court found in favour of the employer.

The judgment shows that ignorance on issues relating to collective agreements is classified as ignorance on legal and not factual issues in the sense of the Danish Limitation Act. This means that the statute of limitation for employment law claims under Section 4 (1) of the Limitation Act will not be suspended even if the employee is unaware of the existence of the claim and does not become aware of the claim's existence until after the issuance of an industrial arbitration award.

Plesner represented the educational institution in both the city court and the high Court.


 


 

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