NETHERLANDS ANTILLES LABOR LAW (III)
Notice of termination of an employment agreement for an indefinite period
Notice by the employer requires a permit from the the Director of the Directorate of Labor Affairs (“DDLA”; “Directeur van Directie Arbeidszaken”). Until this DDLA permit is obtained, any notice is null and void and does not terminate the employment.
In the application for an DDLA permit the employer must specify the reasons for the intended termination. These reasons must be substantiated: the employer must bring evidence. The DDLA sends a copy of the application and of the exhibits thereto to the employee, inviting him or her to respond within five working days. After this first round of arguments both parties are allowed to submit another reaction on the other party’s arguments within three working days. Sometimes the DDLA schedules a hearing.
The DDLA assesses whether the proposed termination is reasonable, taking into account the interests of the employer and the employee. The grounds for termination can, from a practical point of view, be distinguished into three categories: (i) economic grounds (including reorganization/restructuring), (ii) grounds related to the performance of the employee and (iii) insurmountable problems in the relationship between the employer and the employee. In all situations it is up to the employer to convince the DDLA that a termination of the employment is warranted under the specific circumstances of the matter. It is thus of the utmost importance to the employer to insure that the application is properly drafted, well reasoned and documented.
In practice it is generally not too difficult to convince the DDLA that the employer is forced to reduce the labor force (including reorganization / restructuring) because of a reduced volume of business if indeed such economic grounds exist (ad i).
The decision of the DDLA is irrevocable and not subject to appeal. The procedure generally takes around two to three months.
Karel Frielink
Attorney (Lawyer) / Partner
