After more than a year of litigation, we received the verdict from the judge yesterday that ruled in our client's favor. A happy ending for our client with a bittersweet aftertaste. Not only because this case has led to many emotions among our client and his (ex)colleagues, but also because the procedure could have been prevented by the employer if the employer had sought legal advice earlier. Yesterday
Yesterday we were still talking to an employer who thought he did not need a lawyer because there were no conflict situations in his workplace. However, practice shows otherwise. After all, an escalated conflict costs more money, time and effort than preventing it. The employer in question could also have been in a different position today.
In this case, our client, together with two other colleagues, was wrongfully dismissed in May 2020 by a well-known car garage here in Curacao, because the employer believed that the employee refused to work. Refusal to work can indeed lead to summary dismissal under certain circumstances, but the employer must be able to substantiate this.
After the COVID lockdown in May 2020, all car mechanics returned to the workplace. Before resuming mechanic work, the mechanics were required to clean their workstation. The next day, our client returned to work under the assumption that he would resume his mechanic work. However, he was told that he was not allowed to perform this work.
After asking his manager and HR, it was not made clear to him what he should do. Completely unexpectedly, he was fired on the spot that same morning because the employer thought he had refused work. However, the employee believed he had not been given any assignment at all and did not leave it at that.
The employer did not respond to the proposal to reach a settlement, after which the employee was left with the only option of legal proceedings.
In the event of summary dismissal, the employer bears the burden of proof, which burden of proof should not be taken lightly. In this procedure too, the judge ruled that the employer had not fulfilled its burden of proof. This was partly due to our appeal to the unreliability of the witness statements and the fact that the employer could not provide any other evidence that would demonstrate the employee's refusal to work.
Fast forward according to the ruling, the judge yesterday ruled in favor of the employee, with the result that the employer owes the employee the full salary and the default interest with retroactive effect from May 2020. In addition, the employer must also pay a termination payment or allow the employee to return to the workplace after more than 1.5 years.
About the authors
Didi Wildeman
