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NEW Court Transcript 1 Termination of Employment Dispute
First instance – single employment law
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On July 12, 2022, the Court of First Instance of Sint Maarten heard a first instance – single procedure in the field of employment law, which is part of civil law. The case number is SXM, known under ECLI code ECLI:NL:
Type of procedure First instance – single BodyCourt of First Instance of Sint Maarten JurisdictionCivil law » Labor law Case number(s)SXM Date of judgment
July 12, 2022 Date published July 13, 2022
Pronunciation
COURT IN FIRST INSTANCE OF SINT MAARTEN
Case number: SXM
Order dated July 12, 2022
regarding
[the employee], residing in Sint Maarten, applicant,
hereinafter: the employee, authorized representative: mr. J. DELSTRA,
against
the legal person under public law
THE STATE OF THE NETHERLANDS, domiciled in The Hague, defendant,
hereinafter: the employer, authorized representative: mr. JJ ROGERS.
1
- The process
1.1.
The General Court took cognizance of the following procedural documents:
a. petition with exhibits, received on May 5, 2022,
b. worker’s productions,
c. employer’s productions,
d. affidavit on behalf of the employee,
e. affidavit on behalf of the employer.
1.2.
The oral hearing took place on 29 June 2022 in the presence of the parties and authorized representatives. The representatives of the employer (the Dutch Representative and his deputy in Sint Maarten who is also the head of the branch) were present via video conference. The clerk has kept a record of what was said. At the same session, the employer’s request for dissolution of the employment contract (SXM ) was discussed.
1.3.
The verdict is set for today.
2
The facts
2.1.
An employment contract has been concluded between the parties with effect from 2 March 2021, for a definite period of time until 28 February 2025. The agreement provides for early termination by either party.
2.2.
The gross salary is EUR 5,825.02 per month. The employee (born on 19 … 197..) is entitled to allowances for posting to Sint Maarten on the basis of the VUBZK; System of provisions for Deployments of the Interior and Kingdom Relations. The employee fulfills the position of (Senior) Policy Officer at the Dutch Representation in Sint Maarten. Dutch law has been declared applicable to the employment contract.
2.3.
By e-mail dated October 22, 2021, the Dutch Representative will inform the employee of the following, among other things:“In the conversation you indicated that you wanted to stay on St. Maarten and with that the position at VNPwish to end and that you want to return to the Netherlands with your family. The reason you stated is that the family is not happy on Sint Maarten.”The Dutch Representative proposes the end of the employment contract as of December 1, 2021 and rapid repatriation to the Netherlands.
2.3.
The employee responds to this with the e-mail of 24 October 2021. In it he writes, among other things:
“It was never the intention to leave immediately, let alone to hand in my resignation (which I have not done).”
“As you yourself point out, my biggest concern is my family, and ensuring a smooth and decent transition. Only then can I leave Sint Maarten with peace of mind, you will have to understand that – also in the context of being a good employer.”
“I would therefore like to invite you for an open conversation in which we jointly look for a suitable solution.”
2.4.
In the e-mail of October 27, 2021, the Dutch Representative wrote to the employee that it was agreed:
return to the Netherlands around Christmas,
date of termination of employment 1 February 2022,
termination of the tenancy agreement of the employee’s home, whereby the employer reimburses one month’s (extra) notice period if necessary,
after returning, looking for new work with the Ministry of the Interior in a supporting role.
2.5.
In his e-mail of October 27, 2021, the employee writes, among other things, the following to the Dutch Representative:“We have agreed that my family and I will be given time and space to properly prepare and complete all matters carefully. A distinction must be made between 1) the physical departure to the Netherlands and 2) the formal end of my appointment.
We both agree on point 1, namely a departure around the Christmas period. The departure date on which we will focus is December 17, 2021. The idea is that I take leave and fly to the Netherlands with my family. After my leave, somewhere in January, I will return to Sint Maarten and arrive at point 2).”
2.6.
In this e-mail, the employee further proposes that he, while working from Sint Maarten, will look for new work in the Netherlands and that he will receive assistance from the Ministry of the Interior.
2.7.
The employer (BZK employee) writes to the employee on 28 October 2021, among other things:
repatriation to the Netherlands before 1 January 2022,
termination of the rent of his home in Sint Maarten as of January 1, 2022,
agree to dismissal by mutual consent as of February 1, 2022,“although we still believe that it is your choice to leave and you should therefore resign yourself. But given the situation in which you end up in the Netherlands, we will accommodate you in this. This means that we draw up an agreement in which we dismiss you and you are subsequently entitled to unemployment benefits. For the avoidance of doubt, the date of February 1, 2022 is non-negotiable.”
“The VUBZK is terminated the moment you move to the Netherlands in accordance with the regulations of the VUBZK”,
the employee is registered for an unemployment case management trajectory with career guidance of a maximum of three months,
“Following your email from yesterday to
[A] ,[B] and[C] I hereby inform you that the option of you returning to Sint Maarten to resume your current position is not acceptable to us. It is now important for your family and for yourself to focus on returning and finding a new job. Moreover, it is unlikely that your longer stay at the VNP will outweigh, among other things, the investment that it would require on our part (think of tickets and the VUBZK) until you have found something else.”
2.8.
In his reply of the same day, the employee reports that he is caught off guard by the speed with which the employer wants to terminate employment:“The proposed deadline of February 1, 2022, and the enormous financial risk we run with it, are absolutely unacceptable for me and my family. It is certainly reassuring to have the possibility to rely on unemployment benefits, but this is of course far from ideal and even more desirable. I am doing everything in my power to find a suitable job in the Netherlands in the shortest possible time, but I foresee that this could take longer than the term now given. I therefore propose that you revise the period of 1 February and extend it to 1 July 2022, a reasonable period of six months after your return to the Netherlands. On the understanding that my contract with BZK can be terminated with immediate effect as soon as I can start working with a new employer,
2.9.
In his e-mail of 8 November 2021, the Dutch Representative informs the employee that, in view of a conversation with him, it makes no sense to continue the conversation about the date of termination of the employment contract. The last paragraph:“As far as the content of your work is concerned, we have decided to assign some other work to you. This is in light of your announcement that you plan to leave in 2022. As indicated, we are not completely satisfied with the quality of the tasks you performed and the speed with which you have familiarized yourself. Naturally, these will be tasks that fit within the job profile of Policy Officer scale 12.(…)As soon as you have found another job, you can submit your resignation to us.”
2.10.
By e-mail dated 19 November 2021, the deputy Dutch Representative informs the employee, among other things, that the division of tasks of the two policy officers at the Dutch Representation will be adjusted. It further states:“2. recently
[the employee]has made it known both internally as well as to many of our stakeholders that at some point for personal reasons he intends to leave VNP and return to the Netherlands. While there is no set timeline for this, as an office we have to prepare for this eventuality. Therefore the division of tasks gives VNP the room to deal with this situation seamlessly whenever it may occur.”
2.11.
On the same day, the employee responds, among other things, as follows:“As indicated in today’s conversation, I took a closer look at the new division of tasks. The fact that this has already been forwarded to colleagues in the Netherlands and on the islands indicates that there is apparently no more room for further discussion like today by you,
[A], has been said. I cannot therefore agree to my new duties. This is because this is not the position I applied for and for which I left hearth and home in the Netherlands.” The employee reports“for the sake of my health and well-being”to take a break and not go to the heath days in Aruba. After that, the employee never performed his duties again.
2.12.
On November 19, 2021, the employee called in sick. on
November 23, 2021 the company doctor in the Netherlands will inform you that, after telephone contact with the employee, he advises to take a time-out of 14 days, and: “After that, it is important to start a conversation to discuss solutions for the current situation. I recommend that you engage a mediator for this.”
2.13.
The employee’s lawyer in the Netherlands wrote on 23 December 2021 that the employee himself had not said he wanted to return to the Netherlands; those words were put in his mouth by the Dutch Representative and he was then pressured to leave the service as soon as possible. The redistribution of work is another means of pressure. The employee submits a termination proposal, including the date for the end of the employment contract, 1 July 2022.
2.14.
It appears from the mediation report of 1 February 2022 that on 27 January 2022 the employee indicated that he was open to discussing the way in which and the conditions under which the employment contract could be terminated.
2.15.
In a letter dated 6 April 2022 from the employer (Director of Kingdom Relations/Countries of the Interior and Kingdom Relations) to the employee, the following message is sent to him, among other things:
no agreement has been reached on an amicable termination of employment,
in view of the failed mediation (a total of 14 sessions), there is a disturbed employment relationship,
the employee has no longer worked since October 2021, but has received salary and foreign allowances,
the subdistrict court will be requested to dissolve the employment contract, but first the employer will look for a suitable position in the context of reassignment of the employee,
for this, the employee must return to the Netherlands because reassignment within the Dutch Representation in Sint Maarten is not possible (too small),
the placement in Sint Maarten will be terminated as of May 10, 2022 and the foreign allowances will be discontinued as of that date,
the employee is asked to participate in a session to create a search profile for the relocation.
2.16.
Blijkens de brief van 10 april 2022 van zijn advocaat in Nederland gaat de werknemer hiermee niet akkoord. De werkgever wordt gesommeerd om de plaatsing niet te beëindigen. Doet hij dat wel dan, volgt er een kort geding. De werkgever geeft aan deze sommatie geen gehoor.
2.17.
Op 17 mei 2022 heeft de werknemer zich ziek gemeld. Op 4 juni 2022 bevestigt de door de werknemer ingeschakelde psycholoog dat de werknemer niet in staat is te werken wegens een depressie. De bedrijfsarts in Nederland oordeelt op 10 juni 2022 dat hij “nu niet belastbaar is met werkzaamheden”.
3
Het geschil
3.1.
De werknemer verzoekt dat het Gerecht, bij uitvoerbaar bij voorraad te verklaren beschikking, de volgende beslissingen zal nemen:
prohibit the employer from implementing the unilateral termination of the employee’s placement at the Dutch Representation in Sint Maarten and the associated changes in work location, tasks and wages, as announced in the letter of 6 April 2022,
order the employer to pay the employee the arrears of wages, including (foreign) allowances, that are owed under the employment contract from 10 May 2022 until the date that the employment contract will be legally terminated, at least for a period determined by the court period to be determined in good justice, plus the statutory interest as well as the statutory increases from submission of the petition until the day of full payment,
order the employer to pay the costs of the proceedings, with the statutory interest thereon.
3.2.
The employer concludes to reject the employee’s claims.
3.3.
The arguments of the parties are discussed in more detail below, insofar as they are relevant to the assessment.
4
The reviewJurisdiction and choice of law
4.1.
The General Court must assess ex officio whether there is jurisdiction to hear this interregional dispute. In the absence of a Kingdom Act of jurisdiction in such cases as provided for in Article 38, paragraph 3 of the Charter for the Kingdom, the court must seek agreement with the jurisdictional provisions that apply to it in the field of private international law (see HR 2 May 2014, ECLI:NL:HR:2014:1063): the provisions of the Code of Civil Procedure (Rv) applicable in Sint Maarten. In the first paragraph, Article 429c DCCP designates the court in the place of residence of either the applicant or an interested party; on the basis of the seventh paragraph, in matters concerning an employment contract, the court of the place where the work was habitually or lastly performed is jointly competent. It is established that the employee performed the agreed work in Sint Maarten, so that the Court of First Instance is also competent to rule on the case. For the sake of completeness, it is noted that the request has sufficient connection with the legal sphere in Sint Maarten (Article 429ba DCCP).
4.2.
The parties agree that the law of the Netherlands, and not that of Sint Maarten, applies to their employment relationship. In view of the choice of law clause in the employment contract, the General Court sees no reason to think otherwise and Dutch law will therefore be applied.
The further assessment
4.3.
The hearing revealed that the employee and his family moved back to the Netherlands on 17 June 2022. His wife and children have since been deregistered from the civil registry in Sint Maarten. The employee would do that himself one of these days. He also announced that, due to his move back to the Netherlands, he regrets that he does not see any possibility to perform his work in Sint Maarten.
4.4.
Unlike the claim under b. of the employee, it is not the case that the employer has stopped the payment of the salary. Until now, the employee continues to receive his salary. In a letter dated April 6, 2022, the employer has informed the employee that (only) the allowances under the VUBZK will be discontinued as of May 10, 2022. The employee claims that these payments be continued until the employment contract has been legally terminated.
4.5.
The General Court considers of its own motion whether it has jurisdiction to adjudicate on the issue of the cessation of the allowances. It has become apparent that the ACRU . Disputes Committeewas created, which among other things adjudicates in disputes about the application of the VUBZK. However, the Court takes the view that both parties have tacitly refrained from invoking the judgment of this Disputes Committee and have wished to submit the case to the government court. That is legally possible. The General Court therefore has jurisdiction to hear this dispute.
4.6.
According to the VUBZK, the employee is entitled to the allowances during his placement, so that they end when the placement is terminated . That is why, in any case, as of June 17, 2022, the date of return to the Netherlands, the allowances have ended by operation of law. Contrary to what the employee advocates, this termination is not manifestly unacceptable according to standards of reasonableness and fairness. In the first place, not because the allowances cannot be regarded as wages within the meaning of the Civil Code; they are allowances that make the relocation, stay in Sint Maarten and repatriation possible. So it is not the reward for the work done; that is the salary agreed in the employment contract. No tax is therefore due on the allowances and no social contributions. Secondly, there is no reason to grant these allowances to an employee living in the Netherlands; there is no longer any question of emigration for which the allowances are intended and the salary that the employee receives is tailored to the Dutch situation. Finally, the agreed work, that of a policy officer at the Dutch Representation in Sint Maarten, cannot be performed in the Netherlands, so that this does not lead to an unacceptable result. At the hearing, the employer also indicated that it was prepared to pay the employee the allowances under the VUBZK in connection with the repatriation to the Netherlands. there is no longer any question of emigration for which the allowances are intended and the salary that the employee receives is tailored to the Dutch situation. Finally, the agreed work, that of a policy officer at the Dutch Representation in Sint Maarten, cannot be performed in the Netherlands, so that this does not lead to an unacceptable result. At the hearing, the employer also indicated that it was prepared to pay the employee the allowances under the VUBZK in connection with the repatriation to the Netherlands. there is no longer any question of emigration for which the allowances are intended and the salary that the employee receives is tailored to the Dutch situation. Finally, the agreed work, that of a policy officer at the Dutch Representation in Sint Maarten, cannot be performed in the Netherlands, so that this does not lead to an unacceptable result. At the hearing, the employer also indicated that it was prepared to pay the employee the allowances under the VUBZK in connection with the repatriation to the Netherlands. cannot be carried out in the Netherlands, so that this does not lead to an unacceptable result. At the hearing, the employer also indicated that it was prepared to pay the employee the allowances under the VUBZK in connection with the repatriation to the Netherlands. cannot be carried out in the Netherlands, so that this does not lead to an unacceptable result. At the hearing, the employer also indicated that it was prepared to pay the employee the allowances under the VUBZK in connection with the repatriation to the Netherlands.
4.7.
It remains to be assessed whether the employer owes the allowances under the VUBZK for the period from May 10, 2022 to June 17, 2022, the period after the employer had announced that the placement will be terminated and the employee and his family are still in Sint Maarten stayed (but did not perform his duties). The Court considers that the employer is not obliged to do so and reasons this as follows. It follows from the documents and what was transacted at the hearing that the employee indicated in October 2021 that the posting to Sint Maarten did not bring his family and him what they had expected. The subsequent contacts show that the employer does not like the fact that the family returns to the Netherlands and that the employee continues to work in Sint Maarten for another six months and in the meantime is looking for another job. Subsequently, the parties cannot reach an agreement, despite a very extensive mediation process, and a whole discussion about a minor point also arises; namely the division of labor between the two policy officials adjusted by the employer, the ratio being the departure to the Netherlands announced by the employee. Moreover, the employer has paid the allowances until May 10, 2022 and thus largely met the wishes of the employee, as expressed in his e-mail of October 28, 2021 (continued payment until July 1, 2022). In the opinion of the General Court it was clear on 6 April 2022 that the mediation had failed, the employee said that he wanted to work but did not come to work and also that any form of agreement on an amicable termination of employment, let alone fruitful cooperation proved impossible. Contrary to what the employee states, it cannot be assumed that he was ill during that period; the company doctor established a labor dispute on 23 November 2021 and not incapacity for work; if the employee did not agree, he could have invoked the opinion of the insurance doctor, but he did not. Based on this, the employer could decide on these reasonable grounds to discontinue the allowances, all the more so now that the employer had announced to the employee more than a month in advance that the allowances would be stopped as of 10 May 2022. if the employee did not agree, he could have invoked the opinion of the insurance doctor, but he did not. Based on this, the employer could decide on these reasonable grounds to discontinue the allowances, all the more so now that the employer had announced to the employee more than a month in advance that the allowances would be stopped as of 10 May 2022. if the employee did not agree, he could have invoked the opinion of the insurance doctor, but he did not. Based on this, the employer could decide on these reasonable grounds to discontinue the allowances, all the more so now that the employer had announced to the employee more than a month in advance that the allowances would be stopped as of 10 May 2022.
4.8.
The claim for continued payment of the allowances is therefore rejected. In view of the repatriation to the Netherlands, the employee no longer has an interest in his claim under a. After all, at the hearing the employee indicated that he had no future for his family and to see him in Sint Maarten.
4.9.
This means that all claims of the employee are rejected.
4.10.
As the unsuccessful party, the employee will be ordered to pay the costs of the proceedings.
5
The decision
The dish:
rejects the claims
orders the employee to pay the legal costs, estimated on the part of the employer at nil in disbursements and at NAf. 1,000.00 in attorney’s salary.
This decision was rendered by mr. AJJ van Rijen, judge, and pronounced on 12 July 2022 in open court in the presence of the clerk of the court.
The Dutch Representation in Sint Maarten.
The Dutch Representative.
The Deputy Representative in Sint Maarten.
Employee of the Ministry of the Interior and Kingdom Relations in the Netherlands.
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