Can an employer dismiss me just like that? How long is the period
of notice? What can I do if I don't agree with my dismissal?
This
folder will try to answer these and other questions of employees
about dismissal.
1.
Employment protection
The
dismissal law is stipulated in the Civil code and the Dismissal
ordinance. It is called ‘lei di retiro’.
The
dismissal law protects the employee from unreasonable and arbitrary
dismissal. But it does not see to it that an employee can never
be dismissed.
Sometimes
an employer is forced to dismiss an employee because of a decrease
in business activities or due to the closing down of the company.
It may also be a case of proven unfitness for the job or serious
misbehavior of the employee. In those cases too an employer should
be able to dismiss the employee.
Besides,
an employee might want to resign to accept a better job elsewhere.
However,
the laws governing dismissal also stipulate a few cases in which
an employee cannot be dismissed. We will return to these cases later.
2.
Who is protected by the law?
The
law (Civil code and Dismissal ordinance) protects basically all
employees from dismissal based on unreasonable grounds. The Dismissal
ordinance, however, is not applicable to:
- employees
in a public corporation (civil servants but also labourers and employees
working for the government on a labour contract);
- educational
personnel and teachers;
- clergymen
(for example priests and ministers);
- employees
that perform domestic labour in the household of private persons
(domestic servants).
- a
director’s labour contract;
- a
labour contract for a fixed period with the exception of a contract
for a fixed period which is directly or indirectly preceded by a
contract for an indefinite period or contracts in which the same
worker has successively worked for different employers, who can
reasonably be considered to be each other’s successor with
regard to the work performed.
- cases
of bankruptcy.
3.
If your employer wants to dismiss you
If
your employer wants to dismiss you an approval from the Director
of the Directorate of Labour is generally required. The Dismissal
ordinance namely provides that if an employer wants to dismiss an
employee by giving notice, an examination by the Government on grounds
of reasonableness is required before dismissal can take place.
For
this the employer has to apply for approval at the Directorate of
Labour.
In
the application the employer has to state a reason for the intended
dismissal and will have to substantiate this reason. The reason
could for instance be:
- closing
down or reorganization of the company, for instance as a result
of decreasing business results (business-economic reasons);
- unfitness
of the employee for the job;
- a
disturbed work relationship between employer and employee.
A civil
servant of the Directorate will ask you to comment upon the intended
dismissal. If you don't have any comments, you may suffice with
the words "I will wait for the decision by the Director of
the Directorate of Labour".
The
dismissal file will then be submitted to the dismissal commission.
This commission, consisting of at least two employer representatives,
two employee representatives and an impartial chairperson, advises
the Director. Ultimately, the latter is the one who decides on granting
or refusing the request for dismissal. You will be notified of the
decision in writing. The maximum period for the administrative processing
of an application for permission to dismiss employees is six weeks.
In special cases this period can be extended with six weeks after
the consent by the Minister of Economic and Labour Affairs.
4.
Date and period of notice
Only
after the dismissal permission has been granted, can the employer
give notice to the employee. In doing so, the employer has to observe
the effective date of termination and the period of notice. The
date of termination means the actual day of termination of labour
relations. The period of notice, which the employer has to consider,
depends on the duration of the employee’s contract and is
as follows:
·
one month if the employment lasted less than five years;
·
two months if the employment lasted 5 years or longer but less than
10 years;
·
three months if the employment lasted 10 years or longer but less
than
15 years;
·
four months if the employment lasted 15 years or longer.
The
term for the director’s assessment of the request or the redundancy
plan can be deducted from the period of notice, if the remaining
period of notice is at least one month. The period of notice for
the employer can only be shortened in a collective labour agreement.
The period can be expanded by written agreement.
If
the employee wants to resign, other rules apply. In this case the
employee must give the employer one month notice.
Mind
you: an exception to the above rule can be stated in a written labour
agreement. For example, a longer period of notice can be agreed
upon (up to six months).
The
duration of the period of notice is often stated in the labour agreement.
This period of notice can also be stated in the collective labour
agreement or in a regulation filed in the clerk of the court’s
office.
An
employee can terminate his/her employment orally or in writing.
The latter option is preferred.
During
the entire period, from the request for a dismissal permit to the
actual date of dismissal, you must receive your full salary as usual.
You must of course continue to work in this period unless the employer
does not find it necessary.
5.
Cases in which no dismissal permission is required.
In
the following cases the Director's approval is not required:
a.
dismissal "on the spot";
b.
dismissal by mutual consent;
c.
the expiring of a fixed-term labour contract;
d.
dismissal within the trial period;
e.
dissolution of the labour contract by court.
These
cases will be dealt with below.
a.
DISMISSAL "ON THE SPOT".
Dismissal
"on the spot" terminates the employment with immediate
effect. No permission for dismissal is required.
Dismissal
"on the spot" must be based on an urgent reason of which
the employee must be notified immediately.
A few
examples of possible urgent reasons are:
- theft
by the employee;
- drunkenness
or debauchery by the employee during work;
- unwillingness
to work on the part of the employee;
- gross
neglect of duties by the employee.
If
this is not the case, the employee can request the judge in first
instance to annul the dismissal. The employee can also file a claim
for damages incurred.
Mind
you: as an employee, you can also resign "on the spot",
for instance if you are not paid on time.
b.
BY MUTUAL CONSENT.
In
this case both you and your employer agree to terminate the labour
agreement.
c.
A FIXED-TERM LABOUR CONTRACT.
If
you work on a fixed-term labour contract this contract ends when
the period of time agreed upon lapses. It is possible that a certain
event is mentioned in the agreement instead of a date, for example,
the termination of a project. The labour agreement also ends in
this case.
As
of 1 August 2000 no notice needs to be given for the termination
of a continued, temporary labour contract and so the continued temporary
labour contract will terminate automatically. On the other hand,
after a chain of four continued temporary labour contracts whereby
a period of less than three months lapses between each contract,
the fourth contract automatically becomes an agreement for an indefinite
period (a permanent contract). The same rule applies if less than
four contracts for a certain period of time have succeeded each
other with intervals of three months or less and together these
contracts have exceeded a period of 36 months (including the intervals).
In both cases the employment will become permanent. Notice must
be given to terminate this employment.
An
exception to the chain rules applies to a labour contract for more
than three years, which is continued only once for less than three
months. In this case the employment will not become permanent.
d.
TERMINATION OF THE LABOUR CONTRACT DURING THE PROBATIONARY PERIOD.
If
a trial period has been agreed upon in a labour agreement or a collective
labour agreement, the labour agreement can be terminated with immediate
effect during the probation period by both the employer and the
employee, without giving notice.
Mind
you: the probation period has a maximum of two months and has to
be agreed upon in writing.
e.
DISSOLUTION OF THE LABOUR CONTRACT BY COURT.
The
court of first instance can dissolve a labour agreement at the request
of employer or employee because of grave reasons. The judge then
stipulates if, under what conditions and when the labour contract
is to be terminated.
6.
When dismissal is prohibited.
An
employer cannot dismiss an employee (by giving notice) during the
employee’s illness or unfitness to work due to an accident,
unless the illness or unfitness to work lasted for at least one
year.
An
employer is not allowed to terminate an employee’s contract
during the employee’s maternity leave or during the period
in which an adult worker (or a minor worker whose contract has lasted
at least six months) cannot perform his work because of military
service.
In
addition, an employer is not allowed to terminate an employee’s
contract because the employee is a member of a trade union or the
employee takes part in trade union activities, unless these activities
are performed during work hours and the employer has for legitimate
reasons not given the employee permission to do so.
As
of 1 August 2000 every clause by virtue of which employment terminates
because the employee marries or due to the employee’s maternity
leave, is null and void.
7.
If you don't agree with your dismissal.
If
you think that your dismissal is unreasonable or is not being executed
according to the rules, it is best to turn to your labour union
or the Directorate of Labour (complaints section) as soon as possible.
They
can advise you on the possibilities of defense.
If
you don't agree with your dismissal "on the spot", you
should in any case oppose it immediately and clearly. Preferably
do so in writing.
8.
More information
Is
there anything not clear to you or you want to know more about the
Dismissal Law? For this you can contact the Directorate of Labour
in Curaçao, Bonaire and St. Maarten.
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