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My little brother, lets call him A for now, came to me today and said his boss, call him B, came to him and said that he (B) had been paying him (A) 600 euro too much for 2 years long. Ofcourse B wants the money back but he is not sure yet how and will come back to A after talking with the money manager (I guess accountant). A does not want to pay 14.400 euro at once, and getting paid 600 less each month for 2 years will bring him bankrupt (though we could probably figure some things out).

My question is: What are A his rights? Does he have to pay the money back? Must it be all at once? All the two years? And what happens if he leaves the company right now? Is he even able to?

Some details about A and B and how this happened:

A started working for B almost 3 years ago (he was 16). 2 years ago some software of B its company, that made sure payments happen automatically, stopped. But the payments did not (idk how exactly this happened or worked). The idea was that B pre-paid A (and all other employees) 150 each week. And substracted in week 4 the 600 (4 weeks * 150) from the monthly wage. Because B it's company stopped the software something went wrong and did not substract this 600 for 2 years. A is the only employee this happened to, A says. The company falls within the Bouw & Infra CAO.

A works in the Netherlands, therefore I would like an answer about the rights in NL.

As reply to comment:

I dont know how much A has been spending. Though he told me he could technically pay it. So he has 15k. To be clear btw, A never knew he got paid too much, he really didn't. He does not check those things.

A should have been receiving his normal month wage each month minus the 600. Because the 600 is already paid each week within the month (4 / 600 = 150 a week paid). What he got is his normal monthly wage + the 600. They never substracted it.

"loan"? Sorry bad translation on my part, corrected it. It means wage/wages.

What happened on payslip: Normally what should happen is A his normal wage should be shown as pay-out but also -600 "pre-paid" should be shown. What actually was shown on the payslip was the normal wage without the -600 pre-paid. Making it look like a normal payslip.

How A and B in the end handled the situation: A and B agreed to each pay 1/3 of the money. So A pays back 1/3 of the money. B pays 2/3 and the accountant of B pays 3/3. I don't know why exactly the accountant pays 3/3.

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    @sharur I added my reply to my question.
    – Allart
    Aug 30, 2022 at 16:05
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    @Rick I think I found it. Thanks for the help so far!
    – Allart
    Aug 30, 2022 at 18:09
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    @Rick This text within that page says alot I guess: In principe kan de werkgever het teveel betaalde loon terugvorderen omdat het onverschuldigd is betaald. Maar als de werknemer aannemelijk kan maken dat hij volstrekt niet wist dat de loonbetaling niet klopte dat kan de werkgever in redelijkheid niet het teveel betaalde loon van de werknemer terugvorderen. Sorry it's in dutch. I tried google translate but that messes up the whole message. It's an old document tho, 2014.
    – Allart
    Aug 30, 2022 at 18:13
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    I just google translated and it seems to make a lot of sense, what is "messed up" about it? This is what I got: In principle, the employer can reclaim the excess wages because they were paid unduly. But if the employee can demonstrate that he was completely unaware that the wage payment was incorrect, the employer cannot reasonably reclaim the excess wage from the employee.
    – Esther
    Aug 31, 2022 at 20:56
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    @Esther Oh hey, that indeed looks like the correct translation and the same I get now. Maybe my mind was not their at the time... :(
    – Allart
    Aug 31, 2022 at 21:21

2 Answers 2

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It also depends on the state of mind. If your brother's salary was €4,000 a month, but €4,600 was paid and your brother believed that was the correct salary, then he would have relied on that. He wouldn't have asked for a raise because he was happy with the salary. He wouldn't have left for another job paying €4,600 because he would have believed that isn't an improvement.

So if the company made your brother believe that the salary was €4,600 a month, they are very much at fault as well. They didn't just hand over the cash, your brother would also have received a payslip. And the payslip is an official document, that you would have used to calculate your taxes for example, that you need to be able to rely on. If I had to check what my salary is, the payslip would have been what I refer to.

It would be a different situation if the money he was owed according to the payslip and the money being paid into his bank account were different. It may be different if the payment suddenly went up for no reason.

If this is what his payslip says: He should tell the boss that he remembers quite clearly negotiating for the higher salary. And that he checked his first payslip, and if that payslip had been lower than he would have known that the company wants to pay less, and either negotiated some more, or left immediately. Paying him from month 1 means that they agreed to this payment. Asking him after 24 months is entirely unfair since he was under the impression that the salary would be higher, and that is why he didn't ask for a raise or leave the company.

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  • Thats a good one actually. When im home I will ask him if the extra 600 also ended up on his payslip. Thanks for the help! I will come back to you.
    – Allart
    Sep 12, 2022 at 11:00
  • @Allart Better to check the contract and see if it matches the payslip, then check what was actualy paid.
    – Mark Johnson
    Sep 12, 2022 at 12:49
  • @MarkJohnson What is more likely: A company being so incompetent that they overpay for 24 months, or a company trying to rip off an employee?
    – gnasher729
    Sep 12, 2022 at 13:18
  • @MarkJohnson But the salary on the contract is not up to date I belive. When they change it they do not send you a new contract.
    – Allart
    Sep 12, 2022 at 13:18
  • @gnasher729 A judge will only be intersted in facts, not wild speculations. They will want to see the employment contract (plus any Addendum to the employment contract) ; the payslips to see if the agreed amount is being paid and the net amount (after taxes etc.) being paid out ; then the amounts actualy being transfered. Should the final result show that the double amount was actualy paid out, then the judge will come to the conclusion that overpaid amount should be returned. The judge will not agree with you that the 'company [is] trying to rip off an employee'.
    – Mark Johnson
    Sep 12, 2022 at 17:31
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Does he have to pay the money back?

Yes, based on §812 German Civil Code, since there was no legal ground for the extra € 600 per month.

(1) A person who obtains something as a result of the performance of another person or otherwise at his expense without legal grounds for doing so is under a duty to make restitution to him. ...

Only when your brother didn't notice the extra sum when it was paid out and spent it (no longer enriched), would §818(3) come into effect.

Though he told me he could technically pay it. So he has 15k.

Since the sum (24*600=14400) is available, it must be paid back.

The employer can require him to pay back the whole sum at once since it is available.

And what happens if he leaves the company right now?

Your brother would still be liable for his debt.

Is he even able to?

Yes.

Sources:

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  • Hey Mark, thanks for your answer. I have a question though. Does Germany have the same law as the Netherlands? Since im looking for an answer about the Netherlands. Also, what do they mean with prestation? The employer made a mistake, not a prestation right?
    – Allart
    Sep 12, 2022 at 10:07
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    @Allart There are 2 parties to the contract, both didn't check the monthly payments. Only when the employer knew throughout the period and undertook nothing would the situation change.
    – Mark Johnson
    Sep 12, 2022 at 10:51
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    Mark, the employer told him after two years. Anything before that the employee didn't know. And there is a major problem for the employer: The employee believed that his salary was higher, and that is very much the fault of the employer. So making this change will make the employee want to quit and look for a place that actually pays €600 more. Plus who says this is a fact? It's the employer's opinion, two years later. My first job in the UK, my salary was £2,000 higher than the job offer. Two years later someone might find the job offer and want £4000 back, but that was not my salary.
    – gnasher729
    Sep 12, 2022 at 11:48
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    @MarkJohnson, first it turns out you were wrong. Second, the employer knew what payments were made. The employer is a company. For a company, stupidity is no excuse. If a company makes four extra payments every month then they legally know, whether they are aware of it or not. There were payments going out, there was a bank account that got lower, they knew.
    – gnasher729
    Sep 13, 2022 at 11:01
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    @gnasher729 Just as you answer contains generalized speculation, so does your comment. This is a matter of contract law, where both parties are responsible in insuring that the contract is upheld. So your statement: 'and your brother believed that was the correct salary, then he would have relied on that.' would be rejected by a judge (based on the from the OP quoted dutch law, which is the same in german law). You answer quotes no laws whatsoever. (Remember this is a law forum) ; 'then they legally know': please state the law where that is stipulated.
    – Mark Johnson
    Sep 13, 2022 at 12:05

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