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Absence from work due to detention

When an employee is arrested and put in jail, there are numerous reasons for an employer to end the labour contract. The employer might fear having a convicted felon at the workplace. The employer and the other colleagues could be at risk if the jailed employee returns to work and has not been rehabilitated in prison. The employer does not want the name of his company or organization to be associated with "criminals" and would rather look for another employee who is more honest and effective than the one who has been arrested and jailed.

Is the absence of work due to detention, a reason to summarily dismiss the employee, and/or terminate the labour contract? To answer this question, I will distinguish two scenarios:

- The employee is detained but not convicted (yet).

- The employee is convicted and sentenced to jail.

The employee is detained, but not convicted

In this scenario, the employee is in pre-trial detention for further interrogation, but not convicted (yet). The employer is not obliged to pay salary for the period the employee remains in detention, based on the "no work, no pay"-principle. As long as the detained employee has not been found guilty (yet), the employer must also take the presumption of innocence into consideration. Nevertheless, it is still possible that the employer has a plausible ground for termination of the labour contract in this scenario. This depends on the nature of the criminal conduct, the nature of the detained employee's profession and other circumstances.

Two following situations have to be taken into consideration:

a. There is no connection between the nature of the criminal conduct and the nature of the employee's profession.

b. There is a connection between the nature of the criminal conduct and the nature of the employee's profession.

There is no connection between the nature of the criminal conduct and the nature of the employee's profession: By lack of connection between the nature of the criminal conduct and the nature of the employee's profession, the employer has – most likely – a small chance to terminate the labour contract or summarily dismiss the employee based on the mere fact that the employee is detained. For example, a waiter at a restaurant gets arrested and detained for physical mistreatment of his spouse. In this case, there is no connection between the nature of his criminal conduct (domestic violence) and the nature of his profession (which is to serve drinks and food).

The employer cannot terminate the contract on the mere fact that the waiter is absent due to pre-trial detention for domestic violence. To justify a termination of the labour contract, additional circumstances like the following instances have to be proven:

- The waiter's pre-trial detention was too lengthy that it caused serious problems for the employer's organization in such a way that the detained employee has to be replaced.

- The waiter already performed his work below par frequently during his employment.

- The waiter has been involved with the police and (lengthy) detained before for other misconduct(s).

The additional circumstances to the detention can then form grounds for the employer to end the labour contract.

There is a connection between the criminal conduct and the nature of the employee's profession: When there is a connection between the criminal conduct of the detained employee and the nature of his/her profession, the lack of trust in the employee can form the basis for the employer to terminate the labour contract. This is mostly the case when the detained employee has a profession where safety and reliability are very important (i.e., police officer, bank employee, Day Care Centre teacher, Child Welfare Board employee).

When the following, for example, is true:

- A police officer is in pre-trial detention for threatening his girlfriend with a firearm.

- A bank employee is in pre-trial detention for embezzlement.

- A Day Care teacher is in pre-trial detention for having child pornography on his/her computer.

- An employee of the Child Welfare Board is in pre-trial detention for physically abusing his/her child...

...the employer has a reason to terminate the labour contract based on the lack of trust along with eventual additional circumstances which make it undesirable to continue the labour contract.

The employee is convicted to jail time

When the employee is eventually convicted and sentenced to jail, the termination of the labour contract cannot be based on the mere fact that the employee is absent from work as result of a jail sentence, no matter how despicable the criminal conduct may be. This can be concluded from a case at the Supreme Court in 2010. An employee, born in 1952, worked at the credit accounting department of a bank since September 1971.

In April 2006, the employee was arrested and ended in pre-trial detention on suspicion of sexual abuse of his minor stepson. As this prevented the employee from doing his work, his employer stopped paying his salary. In August 2006, the employee was sentenced to an unconditional prison sentence of two years. The bank summarily dismissed the employee. The employee contested the summary dismissal and started a proceeding in first instance in which he requested a declaratory judgment from the Subdistrict Court which states that the summary dismissal was null and void. The employee opined that the summary dismissal was null and void as there was no urgent reason for the bank to dismiss him.

The employee claimed a declaratory judgment from the Subdistrict Court stating that the summary dismissal was null and void. After the claim of the employee was granted by the Subdistrict Court and the Court of Appeal, the bank went into cassation at the Supreme Court.

The Supreme Court concluded that in principle, all circumstances have to be taken into account in order to determine whether or not a summary dismissal of an employee is legally valid. The mere fact that an employee is absent from work due to detention does not suffice as a reason for summary dismissal. The Supreme Court concluded that it depends on additional circumstances to decide whether or not an employee's detention and his absence from work suffice to justify a summary dismissal. Additional circumstances, for example, may be that the employee can be blamed for being detained, or whether or not he has informed the employer about his detention.

In the situation at issue, the Supreme Court considered it important that the criminal conduct was not in any way related to the work the employee was doing for the bank. The criminal conduct entirely took place in the employee's private life. There was no evidence that the punishable act of the employee had any negative impact on his work performance. On the contrary, in this proceeding, it was confirmed by the bank that the employee performed his work excellently during his employment. The Supreme Court concluded that the bank had not incurred any direct damage as a result of the employee's detention since the bank already stopped paying salary from the moment the employee was placed in pre-trial detention.

Conclusion

In order to terminate the labour contract/dismiss an employee based on the mere fact that he is detained and therefore absent from work, the employer must take the following into consideration:

- The connection between the nature of the criminal conduct and the nature of the profession.

- The duration of the employment.

- The damage the detention eventually caused to the employer.

- Other (personal) circumstances of the employee.

As understandable as it might be for an employer to (try to) dismiss a detained employee, it cannot be assumed that a conviction gives the employer the automatic right to terminate the labour contract or to treat the convicted or detained employee as someone who has "fired himself" due to his "criminal" conduct.

Please note that the content of this article is general in nature and intended strictly for informational purposes.

By Luciano M.G. Dundas, attorney at law and associate at BERMON

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