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10 February 2020 / article

The provisional witness hearing in the employment law practice

The principle of ‘truth-finding’ is increasingly important in Dutch civil procedural law. In addition, legal proceedings should be conducted as efficiently as possible, when they cannot be prevented entirely. The provisional witness hearing can serve both purposes and, moreover, is an excellent tool for estimating the chances of successful litigation; also on appeal. These are all reasons why industry-wide (collective social and pension) funds also use this procedural method.

An employer who falls within the scope of mandatory industry-wide (collective social and/or pension) regulations is obliged to, among other things, register his employees with the appropriate industry-wide funds and to pay pension premiums and collective social contributions for those employees.

However, it often happens that an employer remains unknown to an industry-wide fund and/or appears to be reluctant to provide the relevant information that can be used to assess the aforementioned ‘scope applicability’. In such cases, the industry-wide fund in question should consider the next (procedural) step.

‘Sitting still’ is usually not a valid option; if the scope rules are applicable, an industry-wide pension fund must take into account future claims by the (former) employees of the employer, who will be automatically entitled to pension rights. Industry-wide collective social funds have similar interests.

An industry-wide fund will therefore have to assess whether (any proof of) applicability of the scope rules exists. In many cases, a provisional witness hearing is the most practical means of obtaining evidence at an early stage. A provisional witness hearing not only leads to a clearer picture of the relevant facts, but also to a better assessment of the chances of (successful) litigation. On the basis of provisional witness statements, for example from the director(s) and / or (other) employees of the company, it can be assessed which relevant facts can be proven. In addition, the provisional witness hearing can make the following legal proceedings more efficient, in case these proceedings are unavoidable.

The court will, in principle, have to grant a request to hold a provisional witness hearing, if all the legal criteria are met. Such a request, even though it is ‘preliminary’ in nature, can also be made during a pending legal procedure.

In a judgment of 21 December 2018 (ECLI:NL:GHDHA:2018:3677), the The Hague Court of Appeal ruled that such a request can also be made on appeal. In that case it was a factor that the employer in question continued to refuse to cooperate voluntarily in a ‘scope investigation’ and that the judge in first instance had rejected the subsidiary claim that was related to that investigation.

A provisional witness hearing will usually take place before litigation. The aforementioned ruling of the The Hague Court of Appeal, however, illustrates that this method can ‘even’ be used on appeal. It must be assumed that the provisional hearing of witnesses on appeal must take place before the parties have submitted their respective procedural statements, because of the so-called ‘two-conclusion rule’ (Supreme Court of the Netherlands, November 21, 2008, ECLI:NL:HR:2008:BF3938).
A provisional witness hearing can be very useful for an industry-wide fund to obtain clarification at an early stage about the relevant (legal) facts, as well as to be able to make a better estimate of the chances of successful litigation.

An employer in the Netherlands should not await a provisional witness hearing (or any legal action, for that matter) and should proactively check whether he is obliged by law to participate in any industry-wide (collective social and/or pension) fund(s). Don’t wait too long, because the risk and financial stakes can be very high. Claims regarding these mandatory regulations can have a retroactive effect of up to twenty years. Loyens & Loeff has prominent expertise and is able to assess whether (and to what extent) such a risk exists by providing a so-called ‘quick scan’.


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