By Attorney at Law Suhendra Leon
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What stays the same in 2023 is that living in Sint Maarten is extremely expensive. It seems normal that everybody has side jobs or side businesses to afford their lives on the island.
This phenomenon brings numerous legal questions to mind:
1. What if the employee is not resting enough because of a side job and is underperforming?
2. What if the employee is competing with the employer working his side job or in his business?
3. What if the employee’s side job or business is performed during work hours?
4. What if the employee is unfit due to sickness to perform work and is still performing his side job?
The Supreme Court did uphold a dismissal with immediate effect because an employee failed to disclose to the employer that he had a second full-time job. The courts considered the nature of the position and the extreme circumstances of the case in their decision. It can be argued that a great amount of time spent working on a side job or business can prevent the employee from properly performing the agreed work at their job. After all, humans are not machines and need rest to function properly.
If an employee is performing competing work as a side job or business, the employee is probably acting contrary to the employer’s interests. Part of being a good employee is that the employer can trust that the employee will act in the good interest of the employer. Therefore, competing with the employer by the employee can be a reason to take disciplinary action against an employee.
The main rule of employment law is no work, no pay, but there are many exceptions to this rule. However, no work, no pay applies if an employee is dedicating his paid working hours to a side job or business (without having obtained permission to do so). Depending on the seriousness of the situation, the employer can also take disciplinary action against the employee.
That an employee is unfit due to sickness to perform certain work does not mean that the employee is unfit to perform other kinds of work. For example, an employee whose main job consists of lifting heavy equipment can be unfit for the main job and fit to do another job that only requires sitting. If an employer has doubts regarding the fitness of the employee because he sees the employee performing other work, the advice is to engage an occupational physician to assess the employee.
In the employment agreements I draft, I usually include that the employee will not engage in paid or unpaid activities without the previous permission of the employer or without informing the employer. In that case, there is an obligation to obtain permission or to inform the employer before engaging in the other job. Awareness of the employee’s side job or business can prevent discussions and conflicts in the future.
Employment is a relationship and every situation is different. In Sint Maarten, extra income most of the time is a necessity for people. The best advice I can give employers and employees is that if the side job or business of the employee is a problem, then have a conversation and try to resolve the issue in a satisfactory way for both parties. If the conversation does not resolve matters, the next step would be to find a legal solution to the matter.
I wish you a happy 2023 and a year devoid of legal conflicts!
