Informatiesessie Sxm 2010 Ingekort Engels

NAME:NAME: KENNETH LOPESKENNETH LOPES

DIRECTORATE OF LABOURDIRECTORATE OF LABOUR

FUNCTION: FUNCTION: HEAD HEAD DIRECTORATE DIRECTORATE OF LABOUR SINT OF LABOUR SINT

MAARTENMAARTEN

TEL:TEL: 2354423544

THE LABOUR THE LABOUR LEGISLATIONLEGISLATION

THE LABOUR LEGISLATIONTHE LABOUR LEGISLATION

To find in:To find in: The Civil Code The Civil Code Several public regulations such as:Several public regulations such as:

Minimum Wages OrdinanceMinimum Wages Ordinance Vacation RegulationVacation Regulation Labour Regulation 2000, Labour Regulation 2000, Dismissal LawDismissal Law Severance Ordinance,Severance Ordinance,

Agreements for the Agreements for the performance of labourperformance of labour

The Civil Code states two sorts The Civil Code states two sorts (former three) of agreements for (former three) of agreements for the performance of labour:the performance of labour: the agreement of contracted work the agreement of contracted work the agreement for the performance of the agreement for the performance of

fixed service fixed service It generally concerns the relation between a It generally concerns the relation between a

professional and his clients (e.g. lawyer, professional and his clients (e.g. lawyer, notary, accountant, etc.)notary, accountant, etc.)

the working agreementthe working agreement

Definition Working Definition Working Agreement Agreement

(Art. 1613a Civil Code)(Art. 1613a Civil Code) An agreement whereby one party, An agreement whereby one party,

the employee, commits himself:the employee, commits himself: during a fixed period of time,during a fixed period of time, to perform work,to perform work, in the employ of the other party, the in the employ of the other party, the

employer,employer, against wages.against wages.

The Working AgreementThe Working Agreement

A working agreement should A working agreement should have the following elements:have the following elements: Work Work Wages Wages Authority (supervision) elementAuthority (supervision) element

Element I: WorkElement I: Work

Employee must perform workEmployee must perform work The work must be of value:The work must be of value:

employment relationship trainee is not a labour employment relationship trainee is not a labour agreement.agreement.

It is performed in the framework of a training and It is performed in the framework of a training and aimed at extension of own knowledge and experienceaimed at extension of own knowledge and experience

Work must be performed by the Work must be performed by the employee himselfemployee himself

No third party is allowed to perform the workNo third party is allowed to perform the work Jurisdiction: a particularly called person can replace Jurisdiction: a particularly called person can replace

employeeemployee

Element II: WagesElement II: Wages

Employer must take into account the Employer must take into account the provisions of the Minimum Wages provisions of the Minimum Wages OrdinanceOrdinance

Money, food, work-clothes, use of Money, food, work-clothes, use of housing etc.housing etc. can be elements of can be elements of wages (art. 1613n C.C.) wages (art. 1613n C.C.)

Element III: AuthorityElement III: Authority

This is the most distinguishing This is the most distinguishing feature of the working agreement.feature of the working agreement. This element is lacking in both, in the This element is lacking in both, in the

contracted work as in the agreement for contracted work as in the agreement for the performance of fixed servicethe performance of fixed service

The employer is authorized:The employer is authorized: to execute authority;to execute authority; to give orders (binding indications/ to give orders (binding indications/

instructions);instructions); to supervise the work.to supervise the work.

The formThe form

The working agreements is form The working agreements is form free; free; Can be agreed upon verbally or in Can be agreed upon verbally or in

writing writing For a number of provisions the For a number of provisions the

written form is prescribed, e.g.: written form is prescribed, e.g.: Trial period (1615n C.C.)Trial period (1615n C.C.)

ContentContent

Parties are free to come to an Parties are free to come to an agreement regarding:agreement regarding: working hours,working hours, the the duration, duration,

remuneration, vacation, etc.remuneration, vacation, etc. Thereby they are limited by public Thereby they are limited by public

law regulations as:law regulations as: Minimum Wages Ordinance, Vacation Minimum Wages Ordinance, Vacation

Regulation, Labour Regulation 2000, Regulation, Labour Regulation 2000, Dismissal LawDismissal Law, Severance Ordinance etc, Severance Ordinance etc..

DurationDuration

For a fixed or for a non-period of time.For a fixed or for a non-period of time. Since coming into force of the Ordinance Since coming into force of the Ordinance

Flexibilisation of the Labour Legislation:Flexibilisation of the Labour Legislation: Is it no longer possible to extend labour Is it no longer possible to extend labour

agreements for a fixed time period indefinitively;agreements for a fixed time period indefinitively; Notice is no longer required for the termination of Notice is no longer required for the termination of

a extended temporary labour agreement;a extended temporary labour agreement; The extended temporary agreement (up an till the The extended temporary agreement (up an till the

third temporary agreement) ends automatically.third temporary agreement) ends automatically.

Obligations of the Obligations of the employeremployer

(art. 1614 till art. 1614z (art. 1614 till art. 1614z C.C.)C.C.) pay wagespay wages

protect employee against dangersprotect employee against dangers behave as a good employer (art. behave as a good employer (art.

1614y)1614y) supply referencesupply reference

on request of employeeon request of employee at the end of a labour agreement (art. at the end of a labour agreement (art.

1614z)1614z)

RewardReward Employer has the obligation to pay Employer has the obligation to pay

wageswages at least the hourly minimum wage and on timeat least the hourly minimum wage and on time

No work no pay (art. 1614b)No work no pay (art. 1614b) However, employee retains his right to However, employee retains his right to

wages for a relatively short period in wages for a relatively short period in case of:case of: Sickness or accident (a couple of weeks);Sickness or accident (a couple of weeks); Fulfillment of legal “duties” (a couple of hours);Fulfillment of legal “duties” (a couple of hours); Special circumstances (one or more days);Special circumstances (one or more days); pregnancy and maternity leave;pregnancy and maternity leave; Employer’s absenteeism.Employer’s absenteeism.

Obligations of the Obligations of the employee employee

(art. 1615 till art. 1615d) (art. 1615 till art. 1615d) perform labour to best capacity (art. perform labour to best capacity (art.

1615)1615) perform labour personally (art. perform labour personally (art.

1615a)1615a) stick to instructions of the employer stick to instructions of the employer

(art. 1615b)(art. 1615b) to behave himself as a good to behave himself as a good

employee (art. 1615d)employee (art. 1615d)

Ways to terminate Ways to terminate working agreementworking agreement

Working agreements can be Working agreements can be terminated in the following ways: terminated in the following ways: Mutual consent;Mutual consent; Death of the employee;Death of the employee; When the time has elapsed;When the time has elapsed; Dissolution of the working agreement by Dissolution of the working agreement by

court;court; Termination during the trial period;Termination during the trial period; Dismissal “on the spot” (urgent reason);Dismissal “on the spot” (urgent reason); Notification.Notification.

Termination when the time agreed Termination when the time agreed upon has lapsedupon has lapsed

Working agreement terminates Working agreement terminates automaticallyautomatically Prior notice of termination is not neededPrior notice of termination is not needed The prolonged temporary working The prolonged temporary working

agreements also ends automatically, agreements also ends automatically, except:except:

After a series of four extended agreements, After a series of four extended agreements, following each other within 3 months;following each other within 3 months;

If less than 4 fixed agreements, follow each If less than 4 fixed agreements, follow each other at less than 3 months intervals and these other at less than 3 months intervals and these agreements combined exceed a 36 months agreements combined exceed a 36 months periodperiod

Termination during trial Termination during trial periodperiod

Both parties can terminate the Both parties can terminate the agreement immediately without agreement immediately without giving a reason;giving a reason;

Requirements trial period (art. Requirements trial period (art. 1615n):1615n):

Can be agreed upon only in writing;Can be agreed upon only in writing; can last maximum 2 months;can last maximum 2 months; must be for both parties just as long;must be for both parties just as long; succeeding trial periods may not sum up succeeding trial periods may not sum up

longer then 2 longer then 2 months.months.

Termination by Termination by notificationnotification

Dual dismissal system:Dual dismissal system: Prior authorization is necessary Prior authorization is necessary

(Dismissal Law) to cancel working (Dismissal Law) to cancel working agreements agreements by notification by notification (Civil Code)(Civil Code)

For For notificationnotification one must take into one must take into account:account: The effective date of termination The effective date of termination The terms of notificationThe terms of notification

The period of notice (art. 1615i C.C.)The period of notice (art. 1615i C.C.) Notice prohibitions (art. 1615h C. C.Notice prohibitions (art. 1615h C. C.))

Period of notice for the Period of notice for the EmployerEmployer

(1615i C. C.)(1615i C. C.) Depends on the duration of the Depends on the duration of the

employmentemployment less than 5 years: less than 5 years: 1 month 1 month more than 5, less than 10 years: more than 5, less than 10 years: 2 months2 months more than 10, but less than 15 years: more than 10, but less than 15 years: 3 3

monthsmonths more than more than 15 years: 15 years: 4 months4 months

The period of noticeThe period of notice for thefor the employer:employer: may only be shortened through a CLA;may only be shortened through a CLA; can be extended can be extended through a through a written agreement.written agreement.

Period of notice for the Period of notice for the EEmployeemployee

1 month1 month The period of notice for theThe period of notice for the

employee:employee: can be shortened or can be shortened or extendedextended through a through a

written agreementwritten agreement;; cannot be extended to more than 6 cannot be extended to more than 6

months.months. for the Employerfor the Employer not shorter than the not shorter than the

double of the double of the EmployeeEmployee;;

Notice prohibition (art. Notice prohibition (art. 1615h)1615h)

Employer cannot cancel working Employer cannot cancel working agreements:agreements: in case ofin case of sickness or accident; sickness or accident;

unless sickness has lasted at least 1 yearunless sickness has lasted at least 1 year during during pregnancy and maternity leavepregnancy and maternity leave;; during achievement of the military service of an: during achievement of the military service of an:

adult employee or employee under the age of 21 adult employee or employee under the age of 21 whose employment has lasted at least 6 monthswhose employment has lasted at least 6 months

because of the marriage of employee;because of the marriage of employee; because of membership of a trade union, and because of membership of a trade union, and

because of trade union activities unless during because of trade union activities unless during working hours and employer has not given working hours and employer has not given authorizationauthorization

Minimum Wages Minimum Wages OrdinanceOrdinance

Minimum Wages Minimum Wages OrdinanceOrdinance

Stipulates that the employer has the Stipulates that the employer has the obligation to pay the employee at least obligation to pay the employee at least the hourly minimum wage. the hourly minimum wage.

Since August 2001 the system of Since August 2001 the system of minimum wages was adapted in such minimum wages was adapted in such way that from that date only hourly way that from that date only hourly minimum wages are applicable.minimum wages are applicable.

The hourly minimum wage applies to all The hourly minimum wage applies to all workers, including household personnel.workers, including household personnel.

New system of minimum New system of minimum wageswages

In the new system:In the new system: Minimum weekly wages are determined Minimum weekly wages are determined

by multiplying the number of hours by multiplying the number of hours worked per week by the minimum worked per week by the minimum hourly wage;hourly wage;

Monthly wages are calculated by Monthly wages are calculated by multiplying the weekly minimum wage multiplying the weekly minimum wage by 4.33by 4.33

Gross hourly minimum Gross hourly minimum wagewage

Differs per island territoryDiffers per island territory Curaçao:Curaçao: Naf. 7.30 (21 years and Naf. 7.30 (21 years and

over)over)      Bonaire:Bonaire: Naf. 7.21             Naf. 7.21             Saba:Saba: Naf. 6.26Naf. 6.26 Sint Eustatius:Sint Eustatius: Naf. 5.95Naf. 5.95 Sint Maarten:Sint Maarten: Naf. 7.96Naf. 7.96

Minimum Youth wagesMinimum Youth wages

Since 1 sept. 1993 Since 1 sept. 1993 Minimum Youth Minimum Youth

wages                   wages                   20 years:20 years: (90%)                    (90%)                    19 years:19 years: (85%)          (85%)          18 years:18 years: (75%)          (75%)          17/16 years:17/16 years: (65%)  (65%)                                     

Labour Labour Regulation Regulation

20002000

Labour Regulation 2000 Labour Regulation 2000 (I)(I)

Contains rules with regards to: Contains rules with regards to: working hours, working hours, break, break, period of rest, period of rest, overtime, overtime, labour by children and youths, labour by children and youths, labour in full continue service, nightshift labour in full continue service, nightshift

and dangerous labour by youths, and dangerous labour by youths, labour by domestic personnel.labour by domestic personnel.

Labour Regulation 2000 Labour Regulation 2000 (II)(II)

Applies to:Applies to: employee with an income < then or = to the employee with an income < then or = to the

premium border of the Ordinance Sickness premium border of the Ordinance Sickness Insurance (art. 3);Insurance (art. 3);

premium limit is adapted annually;premium limit is adapted annually; 1 jan 2010: Naf. 4.764,50 p/month (Naf. 1 jan 2010: Naf. 4.764,50 p/month (Naf.

57.174,-- p/year);57.174,-- p/year); not applicable on:not applicable on:

civil servants, crew members, dockers, civil servants, crew members, dockers, aviation staff and independent workers (art. 1 aviation staff and independent workers (art. 1 paragraph 2) paragraph 2)

Schedule and Non-Schedule and Non-schedule workersschedule workers

Labour Regulation 2000 make a Labour Regulation 2000 make a distinction between Schedule and distinction between Schedule and Non-schedule workers:Non-schedule workers: Schedule workers:Schedule workers: workers of which workers of which

labour is performed at several times (outside labour is performed at several times (outside office hours); office hours); before 7.00 o’clock and after 20.00 o’clockbefore 7.00 o’clock and after 20.00 o’clock on Sunday and on public holidayson Sunday and on public holidays

Non-schedule workers:Non-schedule workers: workers for which workers for which the regular working hours is applied. the regular working hours is applied. after 7.00 but before 20.00after 7.00 but before 20.00

Working hours Working hours Non-schedule Non-schedule workers workers (art. 8)(art. 8)

Maximum 10 hours p/d and maximum Maximum 10 hours p/d and maximum average of 40 hoursaverage of 40 hours p/w calculated p/w calculated over a period of 4 weeks;over a period of 4 weeks;

Including overtime: maximum 11 Including overtime: maximum 11 hours p/d and maximum average of 50 hours p/d and maximum average of 50 hourshours p/w, calculated over a period of p/w, calculated over a period of 4 weeks.4 weeks. Calculated over a period of Calculated over a period of 13 weeks maximum 45 hours p/w13 weeks maximum 45 hours p/w

deviation is possible by C.L.A.deviation is possible by C.L.A.

Working hours Working hours Schedule Schedule workers workers (art. 8)(art. 8)

maximum 10 hours p/d and maximum maximum 10 hours p/d and maximum average of 45 hoursaverage of 45 hours p/w calculated p/w calculated over a period of 4 weeks; over a period of 4 weeks;

Including overtime: maximum 11 Including overtime: maximum 11 hours p/d and maximum average of 55 hours p/d and maximum average of 55 hourshours p/w, calculated over a period of p/w, calculated over a period of 4 weeks.4 weeks. Calculated over a period of Calculated over a period of 13 weeks maximum 50 hours p/w. 13 weeks maximum 50 hours p/w.

deviation is possible by C.L.A.deviation is possible by C.L.A.

Periods of rest Non-Periods of rest Non-schedule workers (art. 9)schedule workers (art. 9)

the the period between 20.00period between 20.00 o’clock in o’clock in the evening and 7.00the evening and 7.00 o’clock o’clock in the in the morning; morning;

rest day (Sundays)rest day (Sundays) Weekly at least two parts of a day Weekly at least two parts of a day

(otherwise than Sundays)(otherwise than Sundays) Six-day workweek is therefore Six-day workweek is therefore

possiblepossible all holidaysall holidays

Periods of rest Schedule Periods of rest Schedule workers workers (art. 9)(art. 9)

Daily the period outside the working Daily the period outside the working hourshours the period of rest per 24 hours must be at least 11 the period of rest per 24 hours must be at least 11

hourshours Once every 7 days this may be reduced to 8 hoursOnce every 7 days this may be reduced to 8 hours

The weekly day offThe weekly day off at least once every 7 weeks on Sundayat least once every 7 weeks on Sunday

Weekly at least a part of a dayWeekly at least a part of a day Prior to or after 13.00 o’clockPrior to or after 13.00 o’clock

Per year at least 5 holidaysPer year at least 5 holidays

Break (art. 10)Break (art. 10)

For both groups the same;For both groups the same; each day on which the employee performs each day on which the employee performs

work more than 6 hours (whether it is work more than 6 hours (whether it is overtime or not), after maximum 5 hours overtime or not), after maximum 5 hours of labour it must be interrupted by a of labour it must be interrupted by a break of at least half an hour;break of at least half an hour;

interruption of less than 15 minutes interruption of less than 15 minutes doesn’t count as a break;doesn’t count as a break;

labour during break is considered as labour during break is considered as overtimeovertime

Overtime Overtime

Can ocure as a result of:Can ocure as a result of: work during the period of rest of the work during the period of rest of the

employee, e.g.:employee, e.g.: during breakduring break on a day off or parts of the dayon a day off or parts of the day on rest day on rest day on holidayon holiday

work longer than the maximum working work longer than the maximum working hours p/d (10 hours) or p/w (average hours p/d (10 hours) or p/w (average 40, 45, 48 and 55 hours40, 45, 48 and 55 hours))

Obligations of the employer Obligations of the employer regarding overtime (art. 16)regarding overtime (art. 16) A minimum of 3 hours of overtime should be paid A minimum of 3 hours of overtime should be paid

if the employer calls upon the employee to work if the employer calls upon the employee to work on a day on which the employee is free according on a day on which the employee is free according to his schedule;to his schedule; deviation is possible by C.L.A.deviation is possible by C.L.A.

Provide a hot mealProvide a hot meal or a financial compensation if or a financial compensation if the employee performs the employee performs more than 10 hours work more than 10 hours work on a day;on a day; deviation is possible by C.L.A.deviation is possible by C.L.A.

Instruction to work overtime has to be given as Instruction to work overtime has to be given as timely as possible.timely as possible. interests of the employee must be taken into interests of the employee must be taken into

consideration as much as possible.consideration as much as possible.

Overtime compensation Overtime compensation (art. 15)(art. 15)

Exceeding maximum working hoursExceeding maximum working hours

((per day or after 4 weeks)per day or after 4 weeks) 150%150% work during break work during break 150%150% Overtime on scheduled day off Overtime on scheduled day off 175%175% Overtime on day of rest Overtime on day of rest 200%200% Overtime on holiday Overtime on holiday 250%250% Overtime in combination with Overtime in combination with

night shift (only schedule workers)night shift (only schedule workers) 175% 175%

Particular provisionsParticular provisions The labour regulation has further The labour regulation has further

particular rules with regard to the particular rules with regard to the working hours, break, period of rest working hours, break, period of rest etc. for:etc. for: Stand-by shiftStand-by shift Labour in night shift (art. 12)Labour in night shift (art. 12) Labour in full-continue company (art. 26)Labour in full-continue company (art. 26) Domestic personnel (art. 25)Domestic personnel (art. 25) In addition there is also a Labour Decree In addition there is also a Labour Decree

Hotels, restaurants and casino’s with Hotels, restaurants and casino’s with special rules special rules

Labour Decree Hotels, Labour Decree Hotels, Restaurants and Restaurants and

Casino’s (I)Casino’s (I) Contains rules for the company Contains rules for the company

branches in the sectors hotels, branches in the sectors hotels, restaurants and casino;restaurants and casino;

Working hours:Working hours: maximum 10 hours p/day and maximum maximum 10 hours p/day and maximum

average 48 hours p/week, calculated over average 48 hours p/week, calculated over 4 weeks;4 weeks;

Including overtime: maximum 11 hours Including overtime: maximum 11 hours p/day and maximum average 55 hours p/day and maximum average 55 hours p/week, calculated over 4 weeks.p/week, calculated over 4 weeks.

Labour Decree Hotels, Labour Decree Hotels, Restaurants and Restaurants and

Casino’s (II)Casino’s (II) break:break:

on a day on which more than 6 hours of on a day on which more than 6 hours of labour is performed: a break of at least labour is performed: a break of at least half an hour, unless the service does not half an hour, unless the service does not allow that allow that

Period of rest:Period of rest: once every 13 weeks on Sunday once every 13 weeks on Sunday Per 24 hours at least 11 hours restPer 24 hours at least 11 hours rest

Labour Decree Hotels, Labour Decree Hotels, Restaurants and Restaurants and

Casino’s (III)Casino’s (III) Overtime compensation:Overtime compensation:

AfterAfter the maximum working hoursthe maximum working hours150%150%

     (per day or after 4 weeks)(per day or after 4 weeks) labour during break:labour during break:

150%150% overtime on rest day or holiday:overtime on rest day or holiday:

200%200%

Vacation Vacation Regulation 1949Regulation 1949

Vacation Regulation (art. Vacation Regulation (art. 1)1)

Applies to:Applies to: all employees who are working on the all employees who are working on the

basis of a working agreementbasis of a working agreement Does not apply to:Does not apply to:

sailorssailors home workershome workers live-in children of the employer, for live-in children of the employer, for

whom they workwhom they work

Minimum number ofMinimum number of Vacation daysVacation days

For each year working For each year working consecutively with the same consecutively with the same employer, the employee is entitled employer, the employee is entitled to a vacation of at least 3 times the to a vacation of at least 3 times the contracted number of workdays per contracted number of workdays per week with pay.week with pay. In case of six working days per week, In case of six working days per week,

employee is entitled to at least 15 vacation employee is entitled to at least 15 vacation daysdays

More vacation days can always be More vacation days can always be agreed upon between partiesagreed upon between parties

Granting vacation (art. Granting vacation (art. 4)4)

Preferably consecutively; Preferably consecutively; VacationVacation can be divided; can be divided;

on request of employee or when activities on request of employee or when activities demand so demand so

At least half the vacation has to At least half the vacation has to be given consecutively;be given consecutively;

Decision regarding the moment Decision regarding the moment on which the vacation will begin, on which the vacation will begin, lies with the employerlies with the employer

after mutual consultation. after mutual consultation.

Loss of right to vacation Loss of right to vacation (art. 3)(art. 3)

The right to vacation over a The right to vacation over a previous year expiresprevious year expires if an if an employee has not been to work employee has not been to work during that year:during that year: Due to sickness or accident forDue to sickness or accident for at least at least

6 months;6 months; Due to compliance with legal Due to compliance with legal

obligations for at least 6 weeks.obligations for at least 6 weeks.

Delay (art. 5) or revoke Delay (art. 5) or revoke (art. 6) the vacation(art. 6) the vacation

The employer can delay the date of or The employer can delay the date of or revoke the already started vacation:revoke the already started vacation:

on request of employee, oron request of employee, or due to reasons related to the company’s due to reasons related to the company’s

interest interest Employer must compensate for the travel- and Employer must compensate for the travel- and

hotel expenses the employee has suffered (art. 8)hotel expenses the employee has suffered (art. 8)

The vacation or the part that was not The vacation or the part that was not enjoyed, will be considered as revokedenjoyed, will be considered as revoked

In case of sickness in the meaning of the In case of sickness in the meaning of the Sickness Insurance Ordinance at the Sickness Insurance Ordinance at the beginning or during the vacation (art. 7)beginning or during the vacation (art. 7)

Saving up vacation daysSaving up vacation days (art. 9)(art. 9)

Vacation days can be joined till a Vacation days can be joined till a maximum of 6 times the stipulated maximum of 6 times the stipulated number of workdays per weeknumber of workdays per week Vacation days above this maximum will lapseVacation days above this maximum will lapse

Employer is obligated to have the joint Employer is obligated to have the joint max. vacation be taken within 3 months max. vacation be taken within 3 months after the request (6 months for after the request (6 months for company where work is done company where work is done continuously) continuously) Employee is obligated to take this vacation, Employee is obligated to take this vacation,

asked or unaskedasked or unasked

Saving up vacation days Saving up vacation days (II)(II)

The joint maximum vacation will The joint maximum vacation will be given consecutively and be given consecutively and cannot be delayed or revoked, cannot be delayed or revoked, except:  except:  in case of sicknessin case of sickness

Vacation days at the Vacation days at the termination of the termination of the service (art. 10)service (art. 10)

All vacation days, which have not be All vacation days, which have not be taken, will be paid according to taken, will be paid according to their value in money;their value in money;

Part of a day will be calculated as a Part of a day will be calculated as a whole day.whole day.

Dismissal Dismissal OrdinanceOrdinance

Dismissal protectionDismissal protection

The dismissal law is stipulated in the Civil The dismissal law is stipulated in the Civil code and the Dismissal ordinance. code and the Dismissal ordinance.

The dismissal law protects the employee The dismissal law protects the employee from unreasonable and arbitrary dismissal. from unreasonable and arbitrary dismissal.

The The Dismissal Dismissal ordinanceordinance stipulates that i stipulates that if f the employer wants to dismiss an employee the employer wants to dismiss an employee by giving notice, an approval from the by giving notice, an approval from the Director of theDirectorate of Labour Affairs Director of theDirectorate of Labour Affairs is generally required.is generally required.

the employer has to apply for approvalthe employer has to apply for approval

Application of Application of the Dismissal the Dismissal ordinanceordinance

The Dismissal The Dismissal ordinanceordinance does not apply to:does not apply to: employee in a public corporationemployee in a public corporation

civil servants, labourers and employees civil servants, labourers and employees working for the government on a labour working for the government on a labour contractcontract

educational personnel and teacherseducational personnel and teachers Clergymen Clergymen (e.g. priests and ministers); (e.g. priests and ministers); employees that perform domestic labour in the employees that perform domestic labour in the

household of private persons (domestic servants). household of private persons (domestic servants). a director’s labour contract; a director’s labour contract; cases of bankruptcy cases of bankruptcy a labour contract fa labour contract for a fixed period (exception on or a fixed period (exception on

this)this)

Dismissal reasons Dismissal reasons

In the application for approval the employer In the application for approval the employer has to state a reason for the intended has to state a reason for the intended dismissal dismissal

The three most important reasons for the The three most important reasons for the intended dismissal could for instance be: intended dismissal could for instance be: Business-economic reasons, for instance the Business-economic reasons, for instance the

closing down of the company, reorganization or the closing down of the company, reorganization or the reduction of economic activity as a result of reduction of economic activity as a result of decreasing business resultsdecreasing business results

unfitness of the employee for the jobunfitness of the employee for the job a disturbed work relation between employer and a disturbed work relation between employer and

employeeemployee

Dismissal procedure Dismissal procedure Employer files a substantiated request with the Employer files a substantiated request with the

Directorate of Labour Affairs. For this purpose there Directorate of Labour Affairs. For this purpose there are special forms.are special forms.

Parties are heard by the civil servants of the Parties are heard by the civil servants of the Directorate. Directorate.

Civil servant writes a report with his findings and Civil servant writes a report with his findings and conclusions conclusions

The dismissal file will then be sent to the dismissal The dismissal file will then be sent to the dismissal commission. commission.

The commission advises the Director of the The commission advises the Director of the Directorate of Labour Affairs. Directorate of Labour Affairs.

The Director can grant or refuse a permission for The Director can grant or refuse a permission for dismissal. dismissal.

The Director decides within 2 weeks after receiving The Director decides within 2 weeks after receiving the advise and within 6 weeks after receiving the the advise and within 6 weeks after receiving the request. request.

Employer and employee(s) will be notified of the Employer and employee(s) will be notified of the decision in writing. decision in writing.

The dismissal The dismissal commissioncommission

A separate A separate dismissal commissiondismissal commission is is appointed for each island.appointed for each island.

Task: to serve Task: to serve the Director of the the Director of the Directorate of Labour Affairs Directorate of Labour Affairs with with recommendationrecommendation

Composition: Composition: the commission consists of the commission consists of at least two employer representatives, at least two employer representatives, two employee representatives two employee representatives as well as as well as their substitutestheir substitutes and an impartial and an impartial chairpersonchairperson

Collective dismissal (art. Collective dismissal (art. 5)5)

If the employer intends to If the employer intends to terminate within a period of 3 terminate within a period of 3 months 25 employees,months 25 employees, or more than or more than 25% of his employees, with a 25% of his employees, with a minimum of 5 employees;minimum of 5 employees; Employer mustEmployer must communicatecommunicate at least 2 at least 2

months before the termination to the months before the termination to the director of director of the Directorate of Labour Affairs the Directorate of Labour Affairs

Employer mustEmployer must s submit a redundancy plan ubmit a redundancy plan within 8 days of notificationwithin 8 days of notification

Redundancy planRedundancy plan Must contain at least the following Must contain at least the following

elements:elements: the number of employees the employer intends the number of employees the employer intends

to dismiss, with a specification of function, age, to dismiss, with a specification of function, age, sex and seniority; sex and seniority;

the date of the intended termination of the the date of the intended termination of the labour agreements; labour agreements;

the result of the consultation with the labour the result of the consultation with the labour union if the employees are represented by a union if the employees are represented by a trade union;trade union;

the measures the employer has taken to alleviate the measures the employer has taken to alleviate the consequences of the dismissal for the the consequences of the dismissal for the employees involvedemployees involved..

Severance Severance OrdinanceOrdinance

Severance Pay (art. 1)Severance Pay (art. 1) A A one-time payment in cashone-time payment in cash which the employer which the employer

must pay to his employee when the working must pay to his employee when the working relationship with the employee terminates;relationship with the employee terminates;

Calculated on the basis of number of years of Calculated on the basis of number of years of service;service;

This right originates after the first full year of This right originates after the first full year of service of the employee. service of the employee.

It doesn’t matter if the employee is in permanent It doesn’t matter if the employee is in permanent service, or works on the basis of a temporary service, or works on the basis of a temporary contractcontract

The employee must claim his severance pay from The employee must claim his severance pay from the employer within one year (the employer within one year (art. 5 paragraph 1)art. 5 paragraph 1)

Who is entitled to a Who is entitled to a severance payment severance payment (art. 3)(art. 3)

An employee who is in service of An employee who is in service of an employer longer than 1 year an employer longer than 1 year and whose service terminates:and whose service terminates: Other than through his own fault, or Other than through his own fault, or

example: Because of business-economic reasonsexample: Because of business-economic reasons by circumstances which are not attributed by circumstances which are not attributed

to himto him:: example 1: if the employee wants to quit his job example 1: if the employee wants to quit his job

because of a urgent reason as result of the action of because of a urgent reason as result of the action of the employer;the employer;

Example 2: employee decide to quit because of Example 2: employee decide to quit because of advance ageadvance age

Scope (art. 1)Scope (art. 1)

Severance Ordinance does not Severance Ordinance does not apply to:apply to: civil servants or employees civil servants or employees

workingworking in the public sector in the public sector teachers in subsidized teachers in subsidized

denominational educationdenominational education

No right to severance payNo right to severance pay Employee is dismissed “on the spot”Employee is dismissed “on the spot” Employee resignsEmployee resigns

exceptions in jurisdiction:exceptions in jurisdiction: because of advance age and many years of because of advance age and many years of

service;service; because of disturbed work relationship due to because of disturbed work relationship due to

the employerthe employer Employee passes awayEmployee passes away

When the employee already had a severance When the employee already had a severance claim on the employer, at the moment of his claim on the employer, at the moment of his passing away, his next of kin can claim the right passing away, his next of kin can claim the right to this paymentto this payment

Amount of the severance Amount of the severance pay (I)pay (I)

(art. 3 paragraph 1)(art. 3 paragraph 1) DependsDepends on duration of the serviceon duration of the service Calculated on the basis of the last Calculated on the basis of the last

earned wageearned wage For calculation of the years in For calculation of the years in

service a period of more than 6 service a period of more than 6 months is considered as a full year months is considered as a full year of service, after the first year of of service, after the first year of service service

Amount of the severance Amount of the severance pay (II)pay (II)

(art. 3 paragraph 1)(art. 3 paragraph 1) For the first till the tenth full years For the first till the tenth full years

in service: one week’s wage per year in service: one week’s wage per year in service;in service;

For the eleventh till the twentieth For the eleventh till the twentieth full years in service: one and a quart full years in service: one and a quart times the week’s wages per year in times the week’s wages per year in service; service;

For the next full years following: For the next full years following: twice the week’s wages per year in twice the week’s wages per year in service.service.

Severance and company Severance and company pension pension (art. 3)(art. 3)

Employee preserves right to Employee preserves right to severance:severance: If the company pension is less than If the company pension is less than

AOV-benefit (naf. 800,-);AOV-benefit (naf. 800,-); If the company pension, in case the If the company pension, in case the

AOV-benefit is entirely or partially AOV-benefit is entirely or partially deducted fromdeducted from this, amounts to less this, amounts to less than twice AOV-benefit than twice AOV-benefit

Bankruptcy of the Bankruptcy of the employer employer

(art. 4)(art. 4) Social Security BankSocial Security Bank pays severancepays severance::

In case of bankruptcy of the employer In case of bankruptcy of the employer in case suspension of payment has been in case suspension of payment has been

granted to employer;granted to employer; Social Security BankSocial Security Bank can decide also can decide also

to pay:to pay: if employer is if employer is in a position where he has in a position where he has

stopped payingstopped paying, while he:, while he: has not yet been certified in state of bankruptcyhas not yet been certified in state of bankruptcy has not been grantedhas not been granted suspension of paymentsuspension of payment

Bankruptcy of the Bankruptcy of the employeremployer

Request for severance pay (Request for severance pay (claim on claim on the severance fund)the severance fund) must be must be submitted within 1 year after the submitted within 1 year after the suspension of the service at the suspension of the service at the Social Security Bank (art. 5 Social Security Bank (art. 5 paragraph 1)paragraph 1)