The duty to file a complaint in Dutch labour law: An update

What is the duty to report?

The duty to give notice means that a creditor can no longer rely on a defect in performance if he fails to give notice of it in a timely manner. The creditor must notify the debtor of the defect within a “reasonable time” after the creditor has discovered it, or should reasonably have discovered it. 

The rationale behind the duty to give notice of defects is that a debtor must be able to rely on the creditor to examine, with due diligence, whether the performance meets the terms of the obligation and, if it does not, to notify the debtor promptly. If the creditor gives notice too late, the right to claim is forfeited. This is a significant legal consequence. 

Whether a complaint was filed in a timely manner depends on the circumstances of the case. In employment relationships, it is up to the employer to invoke the duty to complain, and to demonstrate that the complaint was not filed in a timely manner.

Below are some court rulings relating to this obligation to file a complaint.

The Bunny Bunny Bar ruling 

Two employees worked at a nightclub in Amsterdam called The Bunny Bunny Bar. After their employment contracts were terminated, they sought back pay for overtime they claimed to have worked after closing time but for which they had never been compensated. Among other things, the employer argued that the employees had violated their duty to file a complaint. In the employer’s view, the employees had filed their complaints too late. 

The Dutch Supreme Court issued its ruling in this case on 20 September 2024. The Supreme Court confirmed that, in principle, the obligation to file a complaint also applies in labour law. However, the nature of the legal relationship (the employment contract and the resulting position of dependency), and the nature of the benefit (continued payment of wages) are circumstances that are taken into account when assessing whether a complaint was filed in a timely manner. 

Another point of contention was whether the failure to pay wages in full should be regarded as a failure to perform (to which the duty to complain does not apply), or as substandard performance (to which the duty to complain does apply). Since the employer in this case had partially compensated the employee for overtime, this constituted a failure to perform, and the obligation to file a complaint could be invoked. Whether a specific case involves partial performance or a complete failure to perform also depends on the circumstances of the case. 

Although the Supreme Court held that the duty to file a complaint applied, it overturned the judgment of the Amsterdam Court of Appeal. That court had upheld the argument regarding the duty to file a complaint, but wrongly failed to take into account in its assessment a number of circumstances raised by the employee. These included, among other things, the employee’s assertion that employees could not be expected to take action every month, as doing so would jeopardise their employment relationship. The employer’s intimidating behaviour in practice was also relevant, but was not considered as a circumstance in the assessment. This also applied to the fact that the employer had not recorded the working hours himself, even though he was obligated to do so under the collective bargaining agreement and the Working Hours Act. 

According to the Supreme Court, these circumstances were indeed relevant to answering the question of what could be expected of the employee in this case under Article 6:89 of the Dutch Civil Code, and whether the employee had complied with those expectations. 

Vacation pay and the obligation to file a complaint 

On 21 November 2025, the Supreme Court once again ruled on the obligation to file a complaint. The case centred on claims by physical therapists for back pay of vacation wages. 

The Supreme Court held that failing to pay wages (in full) for vacation days constituted a breach of contract, rather than a complete failure to perform. Employees must therefore, in principle, file a timely complaint regarding incomplete payment of wages for vacation days. The Arnhem-Leeuwarden Court of Appeal wrongly failed to address this defence raised by the employer, resulting in the Court of Appeal’s judgment being overturned. 

Practical tips for employers 

The obligation to file a complaint has thus become firmly established in Dutch labour law, and employers (and employees) need to be aware of this. For employers, the following applies:

1. Be on the lookout for claims by former employees.

If you receive a wage claim after the end of employment, always assess whether invoking the duty to report has a good chance of success. Determine: 

Whether the duty to complain applies; 

When the employee discovered, or reasonably should have discovered the defect; 

When the employee first complained; and 

Whether, given the circumstances, this could be considered timely.

2. Keep accurate records of working hours.

In the Bunny Bunny Bar ruling, the Supreme Court emphasised the fact that the employer had failed to record working hours, even though it was required to do so. If an employer fails to keep records, this could work against the employer in the context of a claim based on the duty to file a complaint.

3. Ensure pay stubs are transparent and accurate.

Include all relevant components on the pay stub: base pay, overtime, bonuses, vacation pay, etc. If an employee receives a monthly pay stub that clearly shows what has been paid (and what has not), the threshold for successfully invoking the obligation to file a complaint is lower.

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Cas Jacobs has been working as a lawyer since 2012. He specialises in employment law, with a focus on reorganisations, transactions and employee participation. Cas prefers a practical approach, understands the language of the entrepreneur and enjoys working closely with his clients.

Sophie Janssen is a paralegal, specialised in employment law. She deals with a wide range of employment law matters, including dismissal procedures, reorganisations, and drafting and reviewing employment contracts. She closely follows the latest developments in employment law, enabling her to advise employers in a well-informed manner.