Judge pronounced judgment again regarding demands temporary employees

WILLEMSTAD - Personnel from temp agencies are not automatically employed when working with the company for more than one year. This is the tenor of a judgment in a lawsuit instituted by two temporary employees against transport company Antillean General Transport (AGT) and temp agency Impacto.

In the lawsuit that was submitted late last year, followed by a judgment earlier this month, the judge had to give a verdict on a second dispute between temporary employees and the company they were working at. Two temporary employees had taken AGT and Impacto to court. One temporary employee joined Impacto in 2007 and has been working at AGT since then. The other employee joined Impacto in 2004 and has also been working at AGT since then. Referring to the national regulation on the deployment of temps, the two are of the opinion that the holder of a license can deploy a temp for a maximum period of twelve months at a company. From this the requestors concluded that after the 12-month period deployment at AGT, ‘their employment contract with Impacto is ended, and an employment contract between requestors and AGT for an indefinite period is (automatically) established’.The temporary employees draw the argument for the employment contract with AGT from the fact that AGT always treated them as employees, that they had been deployed continuously at AGT from the beginning, that AGT determines the specification of duties, that AGT draws up schedules and work schemes and that the temps weren’t replaced by others upon their absence. The requestors also believe that AGT and Impacto not only contravened the law but also the principles of being a good employer.

However, the judge didn’t elaborate on the demands from the two temporary employees. Their preposition that their contract with Impacto terminated after the twelve months and that an employment contract for an indefinite period was (automatically) established, has ‘no legal basis’ according to the judge and ‘as the law stands’. “Although AGT doesn’t pay requestors a salary, the situation described by the requestors is after all characteristic for every (working) relation between a temp and the company in question, while the circumstance that requestors had been working continuously at AGT from the beginning is irrelevant. The same applies for the fact that AGT hadn’t hired other temps during the requestors’ absence.”

In his judgment the judge does not elaborate on the question if Impacto and AGT had acted unlawfully and against the principles of being a good employer. The requestors wanted the judge to run ahead of the draft national regulation Short-term Contracts that curbs the continuous renewal of short-term employment contracts. However, the judge chose not to elaborate on this point. “The judge is to be very reticent when anticipating pending legislation.

All the more since the draft proposed regulation of among others the legal position of temporary employees is a controversial matter and it is highly questionable whether the current draft will be adopted.”

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