On Wednesday 6 September, 2017 our island was hit with a devastating hurricane. As a result, many persons lost their lives, homes, businesses and other property. We sympathize with all who lost property and loved ones. However, in the wake of hurricane Irma, we appeal to all employers to practice good business practices and integrity when dealing with your employees. We understand the extenuating circumstances at hand, and therefore, encourage both employers and employees to cooperate and act in accordance with the labor laws of the land.
We encourage employers firstly to communicate with their employees. The worse thing to do in a time like this is to abandon your staff completely. Invite employees to a central location and discuss with them the damages to the building and merchandise and the consequences thereof. Business owners may want to discuss payment and employment options with their staff on an individual basis. Be honest and direct, but give them options.
We urge businesses as much as feasible to retain their staff. In an effort to do this, employers may want to reallocate or reassign staff members to different departments or duties. Perhaps it may be necessary that persons take on different roles for the time being to suit the immediate needs of the business for a time. We ask that workers also be flexible to accept reallocation of tasks or responsibilities. If the labor contract between the company and the employee allows, payment options can be discussed. All agreements outside of what is written in the labor contract must be mutual and in written form such as for example a reduction in working days or wages. Note also that the written agreement must be in accordance with the labor laws of the land. Any employers seeking assistance with drafting a sound mutual agreement can consult legal assistance or visit the Department of Labor Affairs and Social Services.
Although, we strongly encourage businesses to seek means whereby they can maintain their staff, if dismissals must take place permission must still be requested by the Department of Labor Affairs and Social Services (applicable for employees in indefinite employ). There is also an option of rescinding employment relationships through the courts. All persons under contract must be paid out for the remainder of their contractual period if the contract is not being extended, and given due notice. To reiterate, at present time, businesses have one of three options:
1) Retain employee through mutual agreement in writing (terms to include job duties, payment, work hours, etc.)
2) Mutual agreement in writing for termination of labor agreement ( to include severance payments, notice period, all outstanding vacation days and days worked)
3) Dismissal (through the Department of Labor Affairs and Social Services)
4) Dismissal (through the court or legal system)
An important notice for employers is that payment must be upheld for the periods of time when a national curfew was issued by the government of St. Maarten. Employees must not be financially penalized for these times since they were unable to work due to no fault of their own; therefore, they must be paid for those
periods. Note also that the “No Work, No Pay” policy does not apply in this situation. If workers want to work, but are unable to work because their place of work is closed, damaged or employers have migrated, they are still entitled to their wages.
Any employer or employee with questions concerning pay, dismissal, nature of work, work hours, etc. should visit the Department of Labor Affairs and Social Services and ask to speak to a Dismissal and Complaints Officer. We are currently located in the new government building across from the University of St. Martin (USM). Employees also have a right to apply for legal aid to contest any unlawful dismissal from their employer, or any action that they deem infringes on their rights.
Again, the Department of Labor Affairs and Social Services encourages employers and employees to act responsibly and with integrity during this time. We encourage both parties to work together as the nation rebuilds. In order for the economy to revive, we must adjust, regroup and rebuild.
We can rebuild and we will- together.