By Attorney at Law Suhendra Leon
Besides the health challenges the coronavirus represents, there are the economic challenges for many, including employers and employees. At the moment, my partner and I are at home trying to work with a one-year-old. My productivity has been severely affected by this situation, but I am grateful that I still have a job and that I am able to work. But like so many others, I am also concerned about our future and the health of my relatives and friends.
As businesses are severely impacted by the measures that have been taken by the different governments worldwide, people that are dependent on these businesses to provide for themselves are suffering.
In St. Maarten, the economic impact is already felt by almost everyone, as a great part of the economy is dependent on tourism. With this article, I want to illustrate some of the legal measures that employers can take in St. Maarten and the position of the employees regarding these measures.
It is of utmost importance to know that even in these difficult times, the labour law of St. Maarten is still applicable. As such, employers need to adhere to the labour laws, and are not allowed to dismiss employees and disregard the law if they face economic hardship during this crisis.
This means that the employer would still require a permit of the labour office to dismiss an employee, or has to request the court to dissolve the labour agreement. Naturally, employers and employees are still competent to agree on termination of the labour agreement.
Other measures employers may think of to reduce costs in these difficult times are: reducing vacation days, “no work, no pay”, reducing working hours (and as a consequence salaries) and other agreed remunerations or mass dismissal.
It is well known that employees are well protected in our legal system. Any initiative that the employer may consider to amend the labour agreement of the employee (even temporarily) requires cooperation of the employee.
Some employers are inclined to apply “no work, no pay” in this situation. Assuming that the interest of the employer is to continue his business after the crisis, I would not recommend this, as it’s not without risk.
In the recent past, in what local lawyers call the Irma Jurisprudence, we have seen that employees have recurred to the court and that the employer is ordered to pay the salary over the period that it did apply “no work, no pay”. As this situation is unprecedented, it is possible that the court rules otherwise, depending on the individual situation, but at this point, considering the past jurisprudence, I would consider it unlikely.
Reducing working hours and other agreed remunerations will require agreement of the employee, because it entails that the labour agreement will be changed (temporally). For this purpose, the employer can make a reasonable proposal to the labour unions or the individual employees.
The reasonableness of the proposal will depend on the circumstances of both the employer and employees. If the proposal is reasonable considering the circumstances of the employer and the employees, good employeeship requires the employee to accept the proposal.
What's reasonable is very difficult to say, as it would depend on the financial situation of the employer and the duration of this crisis and such. In cases that parties cannot agree on what is reasonable, they may request the court to determine the reasonableness of the proposal. This can also be done with retroactive effect after the crisis has passed.
This situation is difficult as there are plenty of employers that do not have the financial means to continue to pay their employees. I hope that the stimulus plan that the government has proposed will offer some relief to those employers and employees.
My recommendation to employers and employees is to talk to each other and take each other’s interests into consideration. The employer wants to keep the business afloat to survive this crisis, and the employee requires income for his basic needs. Both employee and employer need to think long-term. Legally, this means that the employer needs to avoid future claims of employees that could bankrupt its business.
Employees have to consider that if they do not agree to reasonable proposals of the employer, that may entail a temporary salary reduction, there may not be a job to return to after the crisis has passed.
I would not be a lawyer if my last recommendation would not be to document every taken step.
