PHILIPSBURG: --- The Court of First Instance has ordered N.V GEBE to pay former Chief Operations Officer (COO) and ICT Manager Merril Temmer over half a million guilders within 30 days or he should be reinstated in his position as the ICT manager. Failure to comply with the ruling handed down on Wednesday will cost NV GEBE a daily fine of NAF. 500.00.
Based on the verdict NV GEBE has failed to show the urgency and reason for the immediate termination since Temmer was not responsible for the March 16th, 2022 cyber attack on NV GEBE’s systems.
Temmer brought the case against NV GEBE when the company failed to respect his labor agreement which they signed in 2021 when he was appointed Temporary Manager and COO of the company. The contract clearly indicates that should the COO contract terminate then Temmer will go back to his previous position as the ICT manager, or another managerial position should the ICT position is no longer available.
The court did not find Temmer responsible for the cyber attack and neither responsible for any wrongdoing post the Black Byte attack on March 16th, 2022. Temmer has been represented by Attorney at Law Lucas Berman.
BACKGROUND
On September 2, 2022, when Temmer resumed his work after the period of medical leave the Supervisory Board informed Temmer of its intention to suspend him as COO, which decision was actually taken by the Supervisory Board on September 12, 2022. In short, the suspension decision states that the suspension is necessary for two months due to an external investigation to be set up into what exactly occurred before and after the hack.
In a separate letter dated October 27, 2022, the Prime Minister of Sint Maarten, as a shareholder of GEBE expressed the reasons for the shareholder's intention him to resign. Reference was made to the findings of a 'Special Representative and Crisis Team' in which, according to the shareholder, various grounds for dismissal have come to light, namely:
a. Failure to safeguard forensic evidence.
b. Failure to adhere to NV GEBE's own internal ICT policies.
c. Failure to cooperate with investigations.
d. Handling of Aurora InfoTech matters
e. payout or bonus
Each of these grounds is accompanied by an explanation.
All allegations have been rigorously contested and contradicted by Temmer through his attorney.
Temmer was not allowed to perform work after 7 November 2022 and he has not been paid any wages since then, GEBE cited a lack of confidence in Temmer but was not able to explain what the lack of confidence consists of, Temmer in his claim said that the lack of trust can be repaired by engaging a mediator.
Based on the calculations Temmer is entitled to
ANG 1,675,947.40 gross plus ANG 57,000.00 net, including his monthly wages of NAF 15,370.00
plus emoluments, including:
a. holiday allowance 8% ad NAf. 1,280.33 per month;
b. company telephone and NAf. 118.66 per month;
c. year-end bonus/13th month of NAf. 1,280.33 per month;
d. company car, with a purchase/catalog value of NAf. 45,500 (valued at the addition of NAf. 568.75 per month);
e. fuel card (coupon book) ad NAf. 100 per month;
f. employer's pension contribution of NAf. 2,499.74 per month;
g. tax-free expense allowance of NAf. 165 per month;
h. taxed expense allowance (internet, telephone, insurance) of ANG 235 per month;
i. life insurance/ annuity of NAf. 164.46 per month;
j. health insurance of NAf. 270 per month;
k. reimbursement of medical expenses on average of NAf. 712,- per month (exact amount per submitted receipts);
all plus the statutory increase of 50% if sums of money are not paid on time, and furthermore subject to forfeiture of penalty payments of USD 200 per day with a maximum of USD 100,000 if the company car, fuel card, telephone, and laptop are not made available to Temmer until the employment contract has been legally terminated;
3. Gebe will order Temmer to be admitted to his duties in his position of
!CT manager, or in another suitable managerial position, under penalty of forfeiture of penalty payments of USD 5,000 per day without a maximum, or at least order to comply with the applicable return guarantee, also under penalty of forfeiture of penalty payments of USD 5,000 per
a day without attaching a maximum to it; alternatively
4. Order to order Temmer to pay an amount of ANG 1,653,896.20 gross and ANG. 56,250 net;
more subsidiary
5. a decision to be taken in good justice; primary, subsidiary, and more subsidiary
6. Order to pay the costs of the proceedings, including the extrajudicial costs and the lawyer's fees actually incurred, plus the statutory interest from the day of the decision to be made.
4.2. Temmer relies on the expressly stipulated condition, upon his appointment as TM and later COO, that he could return to his ICT management position. This condition has always been accepted by Gebe and laid down in agreements. Gebe must adhere to that unimpaired. This means that Temmer can claim compliance with the terms of employment, but also re-employment, since he has a great interest in the latter because of the defamatory image of his non-activity, which was widely reported in the national press and as a result of which his good name has been smeared. Should the Court be of the opinion that there is no (any longer) an employment contract between the parties and that an appeal to the return guarantee must therefore be rejected, Temmer will request compensation for the material damage suffered and to be suffered by him, being the amount, he owes to loss of income until retirement age. In all cases, Temmer also requests the award of immaterial damages and full reimbursement of the legal costs actually incurred by him.
All this leads the Court to award an amount per month of ANG 18,757.86 gross plus ANG 165.00 net, all up to the date of the legal termination of the employment contract. The Court of First Instance allocates the legal increase on this to a percentage of 10%, now that there is no basis for the more advanced claim in view of the background of the dispute. This can be traced back to a legal difference of opinion about the interpretation of the assignment agreement.
Separately, Temner is also claiming the surrender of a company car, a fuel card, a telephone, and a laptop, under penalty of penalty payments. The Court understands that these are the facilities that a ICT manager can claim at GEBE As will become apparent below, the employment contract between the parties will be terminated as of 1 June 2023. The Court therefore only upholds this claim in the event that GEBE exercises its right to withdraw the cancellation request. If GEBE decides not to do so, it no longer makes sense to provide these facilities to Temmer for a few days. The penalty payments associated with this conditional allocation will be reduced and maximized.
The same applies to the claim for re-employment. If GEBE were to maintain the employment contract as of June 1, 2023, it should, as a good employer, give Temmer the opportunity to resume his work as an ICT manager or in another suitable management position. Also with regard to this conditional allocation, the associated penalty payments were negated and increased.
Because Temmer's primary claim for continued payment of wages is allowed, the subsidiary and more subsidiary claims are not discussed.
Temmer has nevertheless requested an integral cost award in all cases. The Court rejected that claim. According to settled case law, the starting point is that the parties to the proceedings can each claim a fixed compensation for the costs of the proceedings. Only in special circumstances can this starting point be deviated from and a full court order for costs can be awarded. The court must exercise restraint in this respect and limit its application to cases of abuse of procedural law and/or wrongful act. In particular, this concerns a claim or a defense of which a party to the proceedings knew or should have known the inaccuracy or assertions of which that party had to understand in advance that they had no chance of success.
Although this has not been included separately in the petition of the petition, the Court also understands that Temmer wishes to claim compensation in all cases for immaterial damage suffered by him due to damage to his honor and good name by GEBE’s behavior. That claim cannot be allowed because it is insufficient that there is only psychological discomfort and feeling hurt.
GEBE is the unsuccessful party and must therefore pay the costs of the proceedings. The claimed compensation for extrajudicial costs will also be awarded.
The Court verified that the request for dissolution of the employment contract is not related to the existence of any prohibition on termination.
In addition, GEBE did not act with sufficient diligence to declare the dissolution of the employment contract due to culpable acts or omissions.
The Court applies this recommendation and arrives at an amount of NAf for the B-factor. 17,930.66 gross per month. This includes the monthly wage, the holiday allowance, and the 13th month, but not all others. Considered that applying a C-factor to be set at 1.5 is fair in this case.
This brings the severance payment to be awarded to Temmer to NAf.
457,231.83 gross (17 x 17,930.66 x 1.5). The cessantia payment (if any) accruing to Temmer is deemed to be included therein.
The Court disregarded the discussion about whether or not the condition of payment of this severance payment should be attached to it.
