PHILIPSBURG:--- Former statutory director of NV GEBE Merril “Jimmy” Temmer has been victorious in the court case he filed against his employer NV GEBE.
The court of First Instance ruled that NV GEBE must honor the return agreement “clause” in the contract that was offered to Temmer when he was hired as the Chief Operations Offer (COO) as such the government-owned company must continue to pay Temmer and all his benefits until a new decision is rendered in appeal or the supreme court if NV GEBE chooses that route, or they can honor the court’s decision and reinstate him to his position as manager of the IT department or an equivalent position within the company.
Temmer who was appointed Temporary Manager prior to being appointed the statutory director after he passed the screening was the IT manager of the IT Department of NV GEBE. Soon after being appointed Temporary Manager he left on medical leave but returned to his function one day before the Council of Ministers instructed the Supervisory Board of Directors to remove him as they have launched an independent investigation into the March 16th hacking.
Temmer was escorted out of NV GEBE when he refused to give up his position so that the special representative Troy Washington takes his position. Temmer in a letter to the SBOD indicated that appointing Washington as a special representative (Temporary Manager) creates a conflict of interest since his construction company “Washington Construction Company NV” has contractual agreements with NV GEBE while he also has family ties to the Supervisory Board of Directors.
employment contract between the parties
4.7. For the time being, the Court is of the opinion that, pursuant to the TM and COO agreements, the employment contract between Temmer and GEBE has not come to an end. According to the clear wording of the TM and COO Agreements, the intention of the parties is unmistakable that the employment contract will be maintained during the period that Temmer performs work as TM and COO. Nor have any facts and circumstances been put forward on the basis of which the conclusion can be drawn that the employment contract has now been concluded
After all, it has not been canceled or dissolved, while it must also be deduced from the wording of the TM and COO Agreement that there can also have been no question of termination on the basis of mutual consent. The legal effect of entering into the Agreement TM and COO is only that the parties were released from their obligations during the validity of that Agreement TM and COO. However, the 'dormant' employment contract has not come to an end. The termination or termination of the TM and COO Agreement also did not put an end to the 'after-effect' provision of the return guarantee that the Court of First Instance used under the finding of fact.
quoted.
4.8. Incidentally, the Court has not become clear which contradicted assertions of Temmer and/or GEBE - where the existence of the employment contract is concerned - should be proven by an order of evidence. The provision of Section 2:8 of the Dutch Civil Code also does not oppose a 'dormant' employment contract that the parties envisaged. We object to this provision against the existence of an employment contract as a legal relationship between the legal person and one of the directors of the legal person. The parties have therefore provided for this by entering into contracts for services with each other, namely by means of the TM Agreement and the COO Agreement.
4.9. If the judge in preliminary relief proceedings sees it wrong and no employment contract may be accepted between the parties, that will not make much difference to GEBE's financial obligation towards Temmer. After all, even then Temmer can invoke the return guarantee and demand compliance with it. The violation of this will then lead to GEBE's obligation to pay compensation to Temmer, which can be budgeted for the time being based on the primarily claimed wages and emoluments. The subsidiary claim could then be (partially) awarded.
4.10. It should be deduced from the provision of 9.4 of the COO Agreement that Temmer has not been offered any certainty that he would be able to return to work as an ICT manager after the end of his COO position. Wei has been given certainty on this contractual basis that he will be offered a comparable position/function with therefore comparable employment conditions.
invoking return guarantee
4.11. For the time being, the Court is of the opinion that the TM Agreement and the COO Agreement have come to an end - no one disputes this either - and that Temmer can therefore invoke the return guarantee.
creditor default
4.12. GEBE defends itself against this right of Temmer by invoking creditors' default pursuant to Section 6:59 of the Dutch Civil Code of Temmer. According to GEBE, Temmer has terminated the COO Agreement in violation of the cancellation rules. This opportunistic position of GEBE bypasses the General Court. After all, GEBE itself pursued the end of Temmer's activities as COO and even the termination of his position as COO: first through the suspension and then through the termination decision of 9 November 2022. The restrictive effect of reasonableness and fairness means that GEBE cannot successfully invoke Temmer's possible failure to comply with cancellation regulations that
GEBE itself does not take this into account either. In this regard, the Court refers to the letter of 24 November 2022 from GEBE in which the termination decision ('corporate resolution') of 9 November 2022 is cited. This letter states that GEBE accepted Temmer's resignation from his position on November 7, 2022, in its decision of November 9, 2022, so Temmer's position as COO came to an end on November 7, 2022.
4.13. GEBE does not refer to any violation of a notice period and GEBE even states that Temmer's COO position came to an end on November 7, 2022. From this point of view, pursuant to 9.3 under iv of the COO agreement, there is no question of a violation of a notice period: after all, the corporate relationship between Temmer and GEBE came to an end on 7 November 2022, after which the contractual assignment between the parties was also terminated without observing any notice period. could come to an end.
destruction 'of the return guarantee
4.14. According to GEBE, it erred in the formation of this clause.
GEBE did not know that Temmer had made such major mistakes as an ICT manager
fall, according to GEBE. This profession does not meet the requirements of the regulation of
Article 6:228 of the Dutch Civil Code. It has not been stated or proved which incorrect information Temrner provided
GEBE has provided or what information he should have provided but that is now correctly left. It has also not become clear whether, and if so, from which incorrect
representation are both parties to the return guarantee gone out.
4.15. The statement that (exclusively) Temmer is to blame for the cyber attack and the adverse consequences of this recognizes the responsibility of directors, members of the Supervisory Board of GEBE, and the multitude of Temporary Managers who have taken on the role in recent years have been at the helm of GEBE not to mention the usual (political) interference by the sole shareholder of GEBE: Land Sint Maarten.2 This statement also ignores the responsibility of all those who
1 Nota bene: the cyber attack takes place on March 17, 2022, while the return guarantee was first of the COO Agreement on May 18, 2022, is stipulated.
l Are facts of general knowledge in SXM that do not require proof.
Judgment date: December 29, 2022
are now at the helm of GEBE to deal with the consequences of a cyber-attack. They bear responsibility for the difficult recovery of GEBE's ICT organization, as a result of which the adverse consequences of the cyber attack are still being felt. The Court, therefore, ignores the statement that GEBE erred when entering into the return guarantee. The Court, therefore, assumes a valid return guarantee.
restrictive effect of reasonableness and fairness
4.16. This appeal also fails: the Court of First Instance is white on what has been considered and ruled above.
4.17. The Court is therefore of the preliminary opinion that Temmer can successfully rely on compliance with the (valid) return guarantee, in any case on the obligation to continue payment of the agreed wages with emoluments (compare fact-finding sub 2.1.). Now that no guarantee has been given that Temmer could return to the GEBE organization as ICT manager, this part will be rejected below. Under the COO Agreement, immerse, Temmer also qualifies for reassignment to a comparable position as ICT manager and the Court has not been sufficiently informed of what other position is available to Temmer. Nor can GEBE be required to appoint Temmer as ICT manager. Not because he is personally to blame for the consequences of the cyber attack or the difficult recovery, but because GEBE may believe that another employee is more suitable for the position of ICT manager.
4.18. The statement that GEBE has no confidence in Temmer's performance as an ICT employee needs no further discussion. After all, Temmer does not have to return as an ICT manager on the basis of this summary judgment. It alleged lack of confidence can be assessed in proceedings on the merits. Furthermore, the alleged lack of confidence cannot affect the commitment resulting from the return guarantee. The scope of GEBE's possible liability for compensation and the allocation of an advance on the compensation to be determined in proceedings on the merits also do not require discussion. After all, the primary monetary claim will be awarded hereafter.
4.19. As the unsuccessful party, GEBE will be ordered to pay Temmer's legal costs, which can be estimated as follows:
-standing charge ANG 7,500.00
operating costs ANG 240.50
-salary authorized representative ANG 1,500.00 total ANG 9,240.50
3 Only in cases of gross negligence or intent can a successful employee be held liable towards his employer. In these interlocutory proceedings (this degree of) guilt of Temmer has in any event not been made plausible.
Judgment date: December 29, 2022
4.20. The judgment will be declared provisionally enforceable because Temmer's interest in the execution of the judgment, despite a possible appeal, outweighs GEBE's interest in being allowed to await the appeal without the summary judgment is enforceable. Tamer will anyway
must be able to provide for its livelihood, while it has not been argued or shown that GEBE's liquidity position has deteriorated to such an extent that execution of this summary judgment, despite the appeal, is irresponsible.
4.21. All other arguments of the parties no longer require discussion.
5. The decision
right in summary proceedings
5.1. orders GEBE to pay Temmer the agreed wage of ANG 15,370.00 gross with all other emoluments monthly from 7 November 2022, plus the statutory increase of 10% if payment is not made on time,
until the court on the merits decides otherwise in an irrevocable4 judgment;
5.2. orders GEBE to pay the costs of the proceedings, which are currently estimated at ANG 9,240.50 on Temmer's side, plus statutory interest from 14 days after today until the time of full payment;
5.3. declares the judgment provisionally enforceable so far;
5.4. rejects the more or otherwise advanced.
This vonis was given by mr. C.T.M. Luijks, Judge, assisted by the Registrar, and pronounced in public on December 29, 2022. The Registrar is unable to sign this Voru\is.
Click here to read the verdict delivered today December 29th, 2022
