WILLEMSTAD–Small trust office Century Trust Curaçao cannot fire a 25-year-old employee on the spot because she does not want to be vaccinated against COVID-19.
However, her contract may be terminated due to the changed working conditions. The judge in the Court of First Instance in Willemstad decided this in summary proceedings last week Friday.
One of the considerations in the verdict is that it is an individual’s fundamental right to choose not to be vaccinated. Also, there is no vaccination requirement yet.
Nevertheless, an infringement of this fundamental right by the employer may be justified under certain circumstances, as employers have the legal obligation to protect their employees and third parties in the workplace as much as possible against contamination by COVID-19.
In this case, it concerned a 25-year-old administrative assistant who shared a small office space at the World Trade Center (WTC) with two employees ages 67 and 69. These employees are vaccinated and very apprehensive about contracting COVID-19.
However, the young single mother, who will soon give birth to a second child, continued to have her doubts about the vaccines and, therefore, did not comply with Century’s director’s request to also be vaccinated.
As a result, the woman was dismissed with immediate effect as per April 7, 2021. Her dismissal was annulled by the judge, because there had been no consultation with the employee about the possibilities of limiting the risk of contamination with COVID-19 in the cramped office space.
That consultation would have been obvious, especially as Century has in the meantime terminated the lease of office space in the WTC and will continue its business operations from a private home in a different form, the judge stated in the ruling.
Without a legal vaccination obligation, there is no urgent reason for immediate dismissal if an employee refuses to be vaccinated. Therefore, the employee is entitled to payment of wages until the labour agreement has been legally terminated, the court decided.
Century was granted the opportunity by the judge to withdraw the request for immediate dissolution of the labour contract until July 25, at the latest. Otherwise, the employment contract will be terminated as per August 1.
The trust office must also pay the employee gross compensation of NAf. 7,500. The employee was ordered to return a laptop and accessories to Century.
“Employees cannot – yet – be forced to take a COVID-19 vaccine, because there is no legal basis for this,” said Suhendra Leon of BZSE Attorneys at Law in an invited comment. However, the choice not to take a vaccine can have legal consequences for the relationship with an employer, the lawyer specialised in labour law said.
“Employment law is very casuistic, so all cases stand on their own with their own circumstances. To that extent, I would say that this case does not set a precedent because each case is unique, but it does show that the employer can be successful in terminating an employee who does not want to be vaccinated,” Leon said.