Introduction
Recently on July 16, 2021, the Court in First of Curacao brought out a decision in a labor case wherein an employee was terminated by the employer for refusing to vaccinate against the COVID-19 virus. ECLI:NL:OGEAC:2021:132.
Synopsis
The employer terminates the employment agreement with the employee with immediate effect, due to the refusal of the employee to vaccinate against COVID-19. The employee evokes the annulment of the termination and claims continuation of salary payment. The employer requests the court to confirm that the termination is valid. Alternatively, the employer requests the court to dissolve (ontbinding) the employment agreement on the basis of serious reasons, without payment of a compensation to the employee.
The crux of the case is whether the employer may require the employee to vaccinate against the COVID-19 virus.
Termination with immediate effect is null and void
The court opines that the freedom of choice of the employee is infringed to a degree that interferes with her constitutional rights (of privacy and physical integrity), and concludes that the termination with immediate effect is – in the absence of a law that makes vaccinations compulsory – null and void.
The court dissolves the employment agreement
The court does however dissolve the employment agreement on the basis of changed circumstances, despite the serious financial consequences thereof for the single mother of two minors. The court takes into consideration (among others) the fact that the employer went to great lengths to avoid personal contact with non vaccinated individuals by introducing changes in its business operations. The employer is ordered to pay a compensation of Naf 7,500 to the employee, minus severance pay (cessantia).
At odds with announcement by the Aruba Labor Department
The decision is at odds with the public announcement by the Labor Department of Aruba that employees may not be required to vaccinate against COVID-19. This decision sets a clear precedent for potential implications in case the employee refuses to vaccinate against the COVID-19 virus.