PHILIPSBURG – KRK Corporation, a company, doing business as Diamonds Forever and Milano Diamond Gallery, is on the ropes because it paid two former employees black (‘zwart’) on top of their regular income. The court ordered the company to pay one former employee nearly $17,000 – two-third of the money it should have paid between June 2018 and June 2019. Another former employee is entitled to $1,200.
KRK employed the two workers since 2006 at Genoa Jewelers. The male employee received a gross salary of $2,925.46, the female employee $1,500. On top of this regular salary, the male employee received a monthly black payment of $2,075, while the female employee received $150.
The dispute has rumbled through the courts since 2018; on September 28 of that year, the court ordered the company to continue paying the regular net income of $2,245.31 and $1.265.68, respectively.
A year later, the former employees submitted petitions to the court demanding the payment of their black income, their right to return to work, or cessantia-payments. Attempts to settle the matter out of court failed. The court said that the plaintiffs’ claim of black payments was well-documented and noted in its March 31 ruling that the agreement to pay part of the salaries black is a fact.
The court referred to the Haviltex-criterion to hold KRK to the payment of the black income. The 1981 Supreme Court Haviltex-arrest establishes that one should not only look at the text of a contract but also at the meaning parties give to it considering the circumstances of the case and based and what they might expect from each other.
The black payment clause does not void the labor contracts, the court ruled, but it declared another clause void: the agreement not to inform the tax inspectorate about the black payments.
“Bot
h parties have to reckon that the tax inspectorate would find out anyway,” the ruling states. The court notes that part of the responsibility for this scheme falls on the employees, even though they deserve a certain level of protection as the weaker party in labor relationships. “This does not mean that they should not feel anything from participating in a black salary-clause. Nemo auditor propriam turpitudinem allegans: “Those who cheat the government should not expect maximum help from that same government,” the ruling states.
For this reason, the court did not award the former employees the full compensation for their black payment arrears. It ordered KRK to pay 2/3 of the black payments over the period June 2018 – June 2019.
For the male employee, this amounts to $16,599.96 and for the female employee to $1,200.
The ruling is provisionally enforceable.
[Publisher’s note: In Dutch, paying someone under the table and not reporting this, is known as ‘zwart’ betalen; hence the term black payments.]
