Withheld payment to cover penalty payments in case of breach of consultancy contract

Withheld payment to cover penalty payments in case of breach of consultancy contract

Temporary agency subcontractor

The staffing company Pelmatic Sweden AB (Palmetic) provides staff to healthcare providers.

B.H., a physician and subcontractor of Palmetic, enters into an agreement with the company regarding service for wks. 36 and 37 in 2018.

Palmetic then enters into an agreement with Capio Närsjukvård AB (Capio) for the delivery of B.H.’s services during the said weeks.

The agreement between B.H. and Palmetics states that, among other things, the illness or accident of close relatives, certified by a doctor, counts as a valid absence.

Before the agreement is concluded, B.H. mentions to Palmetics that she may need to take care of her partner during the w. 36 after surgery.

However, after some reflections, she decides to sign the work agreement in both weeks.

Despite the agreement, B.H. does not serve during the w. 36.

Palmetic will therefore be obliged to pay a fine of SEK 40,000 to Capio and thus contains the corresponding amount of B.H.’s salary.

B.H. then brings an action against Palmetics and requests that the outstanding salary be paid.

Burden of proof

The District Court (TR) begins by examining whether B.H.’s absence has been valid.

B.H. did not submit a medical certificate in connection with her absentia.

However, she has had such a document issued retrospectively.

However, it has not been issued by the treating physician or person with such competence.

In the opinion of TR, a medical certificate should be issued by someone who at least examined the patient and therefore considers that the document does not make the absence valid.

According to B.H., a representative of Palmetics has stated that a fine from Capio is not applicable and that the requirement for a medical certificate is waived.

According to TR, the burden of proof lies with B.H., which has not substantiated that the claim was expressly remissioned.

However, there are email correspondences between B.H. and Palmetics that suggest otherwise.

The court’s overall assessment is therefore that B.H. was required to prove his absence with a medical certificate.

TR further examines B.H.’s announcement that she might not be able to work during the v.

36 means she has reservations about serving.

For that assessment, the parties’ agreements are considered to be the main starting point.

The Court considers that no clear reservation can be deduced from the parties’ email correspondence, without B.H.’s messages being contradictory.

Since, despite its concerns, B.H. has also concluded work agreements for w. 36, TR considers that she has no reservations about service.

The last point before the Court is whether Palmetics limited its damage.

B.H. gave less than a week’s notice when she announced that she would not be able to work, after which Palmetics tried to find a replacement without success.

In view of the short time palmetics had to resolve the situation, the Court considers that they have tried to limit their damage to the extent possible.

Breach

The Court of Appeal (HovR) initially examines whether B.H. has reserved his right to serve.

HovR agrees with TR that B.H.’s message has not been unequivocal and therefore does not consider that she has made such a reservation.

The court will then proceed to determine whether Palmetics informed B.H. that certificates were not needed.

The Court states that it is apparent from the parties’ agreements that B.H. is obliged to produce a certificate of valid absence.

B.H. has also failed to show any evidence to substantiate her claim that Palmetics has resentained the requirement for a certificate.

HovR therefore shares TR’s assessment on this issue as well.

HovR also agrees with TR regarding the assessment of the certificate submitted retrospectively and therefore does not consider that this means that the absence is valid.

B.H.’s claim that Palmetics stated that she did not have to reimburse capio for compensation is also not substantiated.

In an overall assessment, HovR considers that B.H. is guilty of breach of contract.

Liability – limit damage

It is also apparent from interviews and email conversations that B.H. has agreed that she could be liable to Palmetics for non-service.

The damage has therefore been foreseeable and the starting point is therefore that she will replace the company.

The Court’s assessment is also that Mrs B.H. has not shown that she has expressed reservations about possibly not being able to work during the weeks covered by the agreement and therefore there has been no reason for Palmetics to limit the damage that might arise.

For the same reason stated by TR, HovR also does not see what has been proven that Palmetics failed to try to limit her injury following B.H.’s announcement that she would not be working.

HovR’s overall assessment is that Palmetics had the right to withhold its payment, which means that TR’s judgment stands.