According to lawyer David Kock, he was surprised that GOA picked the strategy of paying employees directly, and not the more logical method, preferred by the Netherlands and most other islands, safeguarding the employee-employer relationship by funneling all aid, via employers.
The more time goes by, he explains, the more difficult it is to retract that strategy that interrupts the important connection between work-giver, and worker.
Additionally, that unproductive strategy of handing money directly to the employee stimulates the employer to let workers go without pangs of guilty, and stimulate the employee to break away, as he is getting paid by the state, anyway.
GOA originally instructed employers to do their utmost to hold on to employees, but with no guests, there is no work, and no income, that is when the principle of ‘No Work – No Pay’ comes into play, it is anchored in law here, with few exceptions.
This is what TEAM DK-Legal writes in their recent blog: To dismiss an employee from work, the employer must ask permission at the Department of Labor, seeking what is known as a: ‘Dismissal permit.’ Which takes time to get. The question remains: Must employers pay salaries in the meantime, taking into account that there is no work to be executed during this CoVid19 period.
The first measure employers may take is to send employees on vacation. Based on article 4, item #3 of the Vacation Ordinance, the timing of this decision and the duration is determined by the employer.
Item #2 of that law stipulates that an employee may request vacation and that the employer, preferably comes to an amicable agreement about it.
Item #3 gives the employer the option to send employees home on an obligatory holiday, without the need to consult him/her.
HOWEVER, the situation we are currently facing is a rather unique one and it naturally allows the employer to send his employee on vacation, BUT do employees still have the right to receive a normal salary during this time??
In our case, mid pandemic, with employers NOT generating any income, employers may apply the ‘no work, no pay,’ rule before making the decision to dismiss employees altogether.
Based on article 1614b in our Civil Code, the employer is not obligated to pay salaries during the time that employees aren’t working.
1616B is the ‘no work, no pay,’ article, stating the employers are not obligated to keep paying salaries during no work periods. But at the same time the article stipulates that an employee has the right for a salary if the employer is the one causing the no work situation.
So legally, where do we stand on the negative consequences of the measures implemented by GOA to avoid CoVid19 spread??
Jurisprudence does not give an answer to this last question. Probably because a situation such as this has never been faced before.
Actual literature offers similar examples of bad weather where employees cannot come to work. That’s on the employer, but only for a limited time. If the bad weather persists, then the ‘no work, no pay’ becomes justified, seeing that the employer does not have any influence over the elements.
We can also conclude that in case of a pandemic – no clients, no work, no income – this is not a risk for the employee. However, at the same time we believe that this is a risk that – if it lasts long – cannot be laid on the employer.
We believe, says TEAM DK-Legal, that a pandemic is an exceptional risk that does not fall under the normal risk factors businesses encounter, and thus we may conclude that employers aren’t responsible for the fact that there is no work, thus the ‘no work, no pay’ principle may be applied.
Of course, the employer may for a more humane reason pay only a percentage of the salary or only minimum wages, obviously this is the best social and moral solution based on solidarity, taking into consideration the difficult times ahead, but the TEAM DK-Legal recommends this as a short term solution, and it cannot send the employers into ruin. Employers are not obliged by law, to max their financial resources or use their reserves, go into debt and/or mortgage all they got, to continue to support employees.
In conclusion: ‘No work, no pay’ policy is a last resort, and when it comes to a point where there are no other viable options, employers may use it as a fair and justified policy instrument.
In case there is a CAO applicable, the situation can be different for union, Collective Work Agreements.
Aruba, maart ’20
David G. Kock ([email protected])
Demis G. Illes ([email protected])
Evelyn M.J. Cafarzuza ([email protected])
Petra M.K. Smit ([email protected])