The Bottom Line
- Corporate structure is not a shield for bad faith: Using a sister company to formally hire a candidate to avoid a recruitment fee can be deemed an unlawful act, making the original company liable for damages.
- Director’s actions can create corporate liability: When a director controls multiple related companies, their actions in orchestrating a scheme to circumvent obligations can be legally attributed to the company that benefits from the scheme.
- Digital trails are decisive: WhatsApp messages and emails provided undeniable proof of the director’s intent to deceive the recruitment agency, overriding the formal legal structure of the employment contract.
The Details
The case involved a straightforward business arrangement that went sideways. A recruitment agency, NB Personeel, introduced a candidate to a potential employer, Holland Filter. After an interview, the candidate was hired. However, the employment contract was not with Holland Filter, but with a sister company, [B.V. 1]. When NB Personeel sent its invoice for the recruitment fee, Holland Filter refused to pay, arguing that since it was not the formal employer, no fee was due. On paper, their argument seemed plausible as they had not signed the recruiter’s terms and the candidate was not on their payroll.
The court’s decision hinged on evidence that revealed the director’s true intentions. NB Personeel presented WhatsApp messages exchanged between Holland Filter’s director and the newly hired employee. In these messages, the director acknowledged that the employee was “factually” working for Holland Filter and explicitly stated the reason for using a “totally different BV” was to circumvent the recruiter’s “enormous margins.” The director even coached the employee on how to phrase a statement for the court, asking him to confirm he had never worked for Holland Filter.
While the court agreed that no formal contract existed between the recruiter and Holland Filter, it found Holland Filter’s actions constituted an unlawful act (a tort). Citing Dutch Supreme Court precedent, the judge ruled that a director who has control over multiple legal entities cannot simply abuse the “identity difference” between them to evade financial obligations. The director’s deliberate scheme to bypass the fee was deemed an act of bad faith. This unlawful conduct was attributed directly to Holland Filter, making it liable for the damages suffered by the recruitment agency—an amount equivalent to the lost fee. The court also admonished the director for violating the duty of truthfulness owed to the court.
Source
Rechtbank Limburg
