Karel's Legal Blog

More complex than you think!

Experience teaches us that it is often difficult for employers to deal with the often complex labor law legislation of the Netherlands Antilles in a practical manner. The legislation is not combined in one law or ordinance, but to complicate matters, it is spread out over the Civil Code (Book 7a), several ordinances like the ‘Termination of Employee Agreements Ordinance’, the ‘Cessantia Ordinance’, the ‘Collective Employment Agreements Ordinance’, and various resolutions and treaties like the ‘Hotel & Catering Industry Resolution’, the ‘Hotel, Restaurant and Casino Resolution’, and the ‘International Treaty of Human and Political Rights’.

When dealing with reorganizations, or a summary dismissal due to (alleged) theft or non-performance, it is, to say the least, useful for employers to keep the dismissal dossier up to date. I often come across situations in which an employee has, according to the employer, been underperforming for an extended period of time, while the employer has nothing about the matter in writing. Indeed, I have even encountered situations in which an employee has received a positive evaluation during performance appraisals while according to the employer the employee is actually unsatisfactory. As a lawyer I am then given the unrewarding task of convincing a judge that the positive appraisal was meant to motivate the employee, to improve his performance, or that the employer had difficulty telling his employee he was not performing as required, because he felt sorry him.

The possibilities for dismissal in the Netherlands Antilles labor laws are not easy to understand. When is a case ready for dismissal? How many verbal/written warnings must be given to an employee before he may be dismissed? Can an employee be dismissed summarily when arriving late for work for the umpteenth time? How do you go about terminating a contract by mutual consent? What can an employer do when he feels that his employee is taking too much vacation in a particular year, even though he has sufficient free days to do so? These are just a random selection of the many questions I receive on a weekly basis. You should receive lucid advice and concrete estimates of the chances, risks, and costs, from an attorney-at-law specialized in labor law. Additionally it is always useful to receive practical tips and suggestions on how to resolve dismissals as quickly and smoothly as possible. The well known proverb ‘pennywise pound-foolish’ is (perhaps) applicable here. Ask critical questions and lay down your demands clearly to your attorney, it’s your right to do so.
 
Most dismissal cases are ultimately resolved because the employer and employee, usually assisted by their own legal advisors, reach an amicable settlement. During termination of an employees’ employment contract it is important that you, as the employer, is up to date and well informed about your legal status and the strength of your case.
 
Which provisions should you never forget when drawing up a termination agreement? Unfortunately I observe too often that an employer thinks he has sufficient knowledge and experience to deal with these cases on his own and unfortunately forgets to clear an outstanding loan at the end of the employment term, while parties grant each other full and final discharge. Do not assume too readily that you in your role of employer understand labor law in all its facets. Using legal counsel can help you avoid pitfalls. Prevention is often better than the cure, also financially.

William ten Veen
Attorney – Spigthoff Curacao

(22 June 2010)

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Filed under: legal by Karel.Frielink