PHILIPSBURG:--- The court of first instance granted NV GEBE its request to terminate its Human Resource manager Clifford Sasso who was placed on suspension.
The verdict was read in open court on Wednesday, August 30th 2023.
Based on the verdict GEBE is allowed to end its working relationship with Clifford Sasso since the company had issued several warning letters to Sasso prior to the last suspension.
NV GEBE must compensate Sasso for his years of service. He is to be paid NAF 264.801.00
Below is the decision of the court both in English and Dutch.
COURT IN THE FIRST INSTANCE OF SINT MAARTEN
Case number: SXM202300375
Decision dated 30 August 2023
the limited liability company N.V. COMMUNITY
ELECTRICITY COMPANY UPPERVVINDSE ISLANDS,
located in Sint Maarten,
applicant, also the defendant in the conditional counterclaim,
authorized representative: mr. Z.].A. BARY,
in return for
living in Sint Maarten,
defendant, the applicant in the conditional counter-application,
authorized representative: mr. C.H.]. MERX.
The parties will hereinafter be referred to as Gebe and Sasso.
1. flat process flow
1.1. Gebe filed a petition with exhibits on March 31, 2023.
On June 23, 2023, Sasso submitted a statement of defense, also a conditional counter-application,
with exhibits submitted. The request was processed on June 29, 2023.
During the oral procedure, the representatives have the floor conducted on the basis of pleadings submitted by them. Sasso also has in
Within the framework of the conditional counter-request, his claim is increased by deed.
The clerk took notes of what was discussed at the hearing.
1.2. The verdict has not yet been determined.
2. The facts
2.1. The following facts will be established between the parties in this proceedings marked. These facts appear from documents submitted and/or follow from statements of the parties insofar as these have been submitted by one party and by the other party have been recognized or have not been contested or have been contested with insufficient reason.
2.2. Sasso, born October 19, 1969, has been employed by Gebe since November 1, 2000, based on an employment contract, most recently as Human Resource manager at a salary of NAf14,883.50 gross per month plus 8.33 9'3 holiday allowance and a thirteenth month. Case number: SXM202300375 sheet 2
Judgment date: August 30, 2023 2.3. In a letter dated 12 April 2018, Gebe sent Sasso a written warning given for dereliction of duty, described as follows:
”l t came to our attention that you, without the knowledge and consent of the Managing Board, subsequently, initiated and processed a lump sum payment for persons that were not included in the initial list that was provided by you and approved by the Managing Board and in turn the Supervisory Board of Directors, by way of an approved budget. you unilaterally instructed the Finance Department to process, with the payroll of March 25, 2018, lump sum payments, to persons whose contracts had ended or were terminated in 2017. By doing so you exceeded your authority. ”
2.4. By letter dated 20 May 2021, Sasso was suspended by Gebe for a period of five days because he failed to inform management during the Covid-19 pandemic
and notify employees who have tested positive for the virus. The Interim Gebe's manager has the following accusation against Sasso described:
”This is completely unacceptable. Management needs to be advised immediately of any positive COVID—19 case(s) and possible exposures so that immediate and appropriate action can be coordinated through management and the affected departments. We have already lost a colleague to the virus, but even without that tragedy, i would assume that you would have taken immediate action by informing me."
2.5. The documents include an - undated - written statement from K. Chittick, former Chief Executive Officer of Gebe, in which he mentions of six incidents related to the functioning of Sasso. According to each time, Chittick has addressed Sasso on this statement and he has verbally warned about this.
2.6. By letter dated August 20, 2021, Gebe Sasso wrote again warned because he allegedly interfered in a dispute between Gebe and an employee, Ms. Daniel, on behalf of her in an e-mail statement about the progress of a particular telephone conversation with an official of Gebe, which Sasso would have witnessed. To compose
this e-mail by Sasso qualified Gebe in the letter of August 20, 2021 as ”a suspicious and colluding act against an employee". Gebe has the
added incidents mentioned in Chittick's statement, and further:
"Also, very concerning is that such suspicious and underhanded actions have been carried out by you and Ms. Daniel together in the past. Your apparent loyalty to Ms. Daniel and therefore a lack of trustworthiness and integrity as an internal employee of NV GE B E has been made very clear over the years on other occasions. [. . .] On March 31, 2021, you were asked about the absence of Ms. Daniel who had not been to work. Under questioning, you stated that you were in possession of the sick leave notice. When asked when the notice had been received, you stated that you could not recall, thereby, clearly not executing the matter according to the normal process within the Human Resources department where registering a date for incoming documents, by stamp, is customary. I. . .I Also, and very noteworthy to
mention is a letter in your file, wherein you were required by the then Managing Board, during the extension of your 2014 trial period, to focus on removing your perception of favoritism and to place total loyalty to the Managing Board. This statement underscores Case number: SXM202300375 sheet 3
Judgment date: August 30, 2023 your questionable character as an employee and manager within NV GEBE, and this latest incident shows that you have not improved on that topic. ”
2.7. On September 3, 2022, Sasso helped Ms. Daniel with moving stuff (folders and bags) from her office on the grounds of Gebe in her (official) car. This was captured on video footage of Gebe. As a result, Gebe has launched an investigation into the significance of this event. Pending this investigation is Sasso by Gebe by letter dated 20 September Decommissioned in 2022.
2.8. Gebe has also commissioned a broader investigation into the functioning of its Human Resource Department by Development Consulting
Center Ltd. in Trinidad W.I. The conclusion in the (undated) audit report (40 pages) issued as a result of that investigation reads as follows:
”During this audit, we examined all critical areas of HR Management, and while our Findings show severe weaknesses in the practice of HR within GEBE, we see real value in underscoring failures that are clearly beyond the HRD/HRM. We would be remiss in our duties if we did not highlight the shortcomings of senior/executive management, internal audit, and the supervisory board. From the poor selection/hiring of an inexperienced and unqualified (in HR) HRM, repeated six-month extensions of his trial period while not gaining the expected value added to repeated inaction on crucial matters. Not only is the HRM/HRD weak, but all those who were meant to hold them accountable must bear signiﬁcant culpability. That multiple managers, executives, C-suites, and boards allowed this situation to continue and fester for such a prolonged period is a cause of direct concern and immediate action. The crisis of recent years, particularly the ransomware incursion, has had the unintended consequence of triggering these and other audits/investigations. However, as difﬁcult as these circumstances are, GEBE can capitalize on the crisis, as the conditions are ripe to articulate and develop a sense of urgency, which is a ﬁrst step on the transformation journey. Human Resources is the lifeblood of any organization; not only is it usually the costliest budget item, but also, the very survival and growth of the business depend on this all-important resource. Moreover, humans have the ability to learn and grow, as do organizations. Therefore, GEBE must act now to begin the process of change and transformation If it is to prevent an even worse decline and hold its cornerstone position within the community and economy of Sint Maarten. ”
2.9. Gabe made the audit report available to on March 6, 2023, Sasso (and his agent) and she has tried repeatedly since then to discuss its contents with Sasso. Sasso refused flat.
2.10 Gebe informed Sasso on March 27, 2023, that the employment as far as she is concerned, cannot be continued with him.
The request 3.1. Gebe requests, essentially, that the Court by order de employment agreement between the parties will dissolve, primarily immediately due to a
(deferred) urgent reason and alternatively in the shortest possible term due to a change of circumstances without award of any compensation. Would it
The court is of the opinion that in the latter case, compensation should nevertheless be made granted, it must take into account all circumstances of the
case to be moderated considerably.
3.2. Gebe bases her request on the established facts. From that, she notes that virtually from the beginning of Sasso's appointment as Human
Resource manager have constantly been 'issues' for which he has several received written and verbal warnings. Sasso has insufficiently combated the favoritism within Gebe, in fact, he benefits from it. According to Gebe, Sasso's dysfunction follows further from the audit report. That shows that Sasso, contrary to his job description, has failed to develop policy in various areas. It also shows that at the employees of Gebe are dissatisfied with the helpfulness and reliability from Sasso. Gebe believes that Sasso has given her an urgent reason to submit the cancellation request. If the Court does not follow her in this, then there now we] there are changed circumstances because of an irreparable disruption in the employment relationship.
3.3. Sasso puts forward a motivated defence. According to Sasso, there is no sound grounds to terminate the employment contract because of his performance
are always well assessed. The audit report has no value because its name nor function in it comes to the fore. Sasso also strongly denies that there is any question
is for a (delayed) urgent reason.
4. The counter-request
4.1. Sasso requests, after an increase in the claim, that the Court, by order, for as far as possible from stock:
a. Gebe will order full compliance with the employment contract and be continue to pay salary;
b. upon dissolution of the employment contract to Sasso on the basis of the
subdistrict court formula will award him compensation of NAf 885568118 gross;
c. and in addition, upon dissolution of the employment contract, to a will award fair compensation of ANG 240,967.00 gross;
d. Gebe will order the costs of the proceedings, the subsequent costs, and the statutory interest about that.
4.2. Gebe has put forward a motivated defense.
5. The assessment
The counter request
5.1. There is reason to first assess the counter-application. That is rejected because the request to comply with the employment contract and to continue the salary
pay does not match an existing situation in which this is not the case, while before that after the dissolution to be pronounced - as will follow below - none
legal basis exists.
5.2. Furthermore, Sasso confuses ”a fee based on the subdistrict court formula” with compensation in fairness, in the sense that they are in addition to
would exist together. That is not the case. Upon dissolution of the employment contract due to change of circumstances is only known by law
possibility of awarding compensation on an equitable basis. That compensation can be calculated here in the country applying the until 1 January 2015
The subdistrict court formula applicable in the Netherlands is something else. If, upon dissolution of the employment contract provides for compensation in fairness
clan to be known lies in the judgment thereon that this means an adequate manner the consequences of that dissolution are compensated. The law does not provide
in the claim to a surplus, such as compensation based on the kantom' however formula.
5.3. Gebe does not have a separate defense for the counter-application submitted, but the question of the (possible) severance payment has already been addressed
in her request. There is then 00k no reason for a cost order from Sasso.
5.4. The Court has verified that the request for dissolution of the employment contract is not related to the existence of any cancellation prohibition.
5.5. Gebe primarily has a delayed urgent reason for the request foundation laid. However, it failed to indicate which one in that connection
qualify facts as such. Instead, she apparently means it that all the facts and circumstances it has in the petition presented is appropriate. However, it doesn't work. For taking after all, an urgent reason is necessary "that there must be a case that is exceptionally serious".i The catalog of viewpoints held by the High Council
formulatedcl2 of facts and circumstances to be involved in the assessment whether an urgent reason arises, clan 00k starts with that having
must be based on the nature and seriousness of the grounds for dismissal used. This requires that Gebe does not turn her petition into a raffle, but specifically in it
1 prof. Mr. S.F. Sage], "The summary dismissal". Social Law Menograph no. 58, Kluwer 2013. p. 272
1 HR 12 February I999, NJ [999, 643 (Schn'Jver:'Van Essen)
indicates what she considers to be exceptionally serious during the employment. Gebe did not do that and that is why the primary
no basis for termination.
5.6. In addition, Gebe is making insufficient progress 5.7. The Court will dissolve the employment contract between the parties due to a change of circumstances, which consists of such a serious and permanently disrupted employment relationship that van Gebe in it cannot reasonably be required to allow the employment contract to continue, in combination with the fact that Sasso has not been able to provide sufficient content to his position as Human Resource manager. Lie down to the disturbance of multiple occurrences that have in common that Sasso acting selfishly. This reproach is also included in the reprimand of 12 April 2018
_ and the suspension of May 20, 2021. Sasso is against these disciplinary measures that did not arise at the time and the Court therefore assumes the correctness of the facts that Gebe has mentioned before. What Sasso opposes in these proceedings has contributed does not eat of it. From a Human Resource manager, Gebe
first of all expects him to understand the company's policy and the implement rules drawn up for this purpose and does not give its own interpretation to them.
Sasso we] did the latter. Illustrative of this is his omission, or refusal, to notify Gebe management of positive COVID-19-tested employees because this would be a health issue that not to be shared by those employees with anyone. Misunderstood with that Sasso that Gebe should ensure good order in the company, for the
health of its employees and that in addition to her a legal duty of care to ensure the safest possible working environment.
In addition, Sasso has proved too light for the tasks and responsibilities that arise from the position of Human Resource manager. The audit report
made sufficiently plausible by Gebe that he failed to fulfill this position and has failed to meet the job profile. Admittedly interim assessments have not been brought to light insofar as it should Prayer put the hand in your own bosom, but when it comes to asking or do employment contract with Sasso can be continued, it is understandable that Gebe '1 See prof. mr. E. Verhulp In 'Disfunctioning and misconduct of employees', Kluwer 2008, p. 86 about the dissolution due to urgent cause remarks: “(..) but it is generally accepted that the gedachle dai it it is possible - without having further acne - to experience for some time after the withering behavior due to that behavior may still be ordered to be bound because of an urgent reason.
to put things in order now. There is even more reason for this now that Sasso is stubbornly refused to discuss the contents of the audit report with Gebe and apparently
is not interested in any feedback on the functioning of the department for which he is responsible.
5.8. The granting of a severance payment to Sasso is as follows judged. The parties take as a starting point the period until 2015
Subdistrict court formula applied in the Netherlands must be followed. The dish agrees in this case. This is the date of January 1, 2009
modified version of this formula A x B x C, where A represents the weighted
number of years of service, B concerns the remuneration and C expresses the correction factor is being brought. Assuming September 7, 2023 as the date of end of the
employment contract and November 1, 2000 as the date of commencement of employment weighted number of years of service (rounded) 30.5. The reward to be taken into account (including holiday allowance and thirteenth month) amounts to ANG 17,364.08 gross. Stays whether a correction factor, downward or upward, should be made applied. There is no sufficient basis for an upward adjustment. For a downward adjustment. The partly well-founded accusations that Gebe made to Sasso
makes and the fact that he has been repeatedly warned about this, give that reason for. The Court also takes note of the fact that Sasso's non-activity is already
continues for almost a year. Taking into account all circumstances of the case judged that applying a C-factor set at 0.5 is fair in this case.
This means that the severance payment to be awarded to Sasso amounts to ANG 264,801.00 gross (30.5 x 17,364.08 x 0.5). The (possibly) due to Sasso
cessantia payment is deemed to be included therein.
5.9. The dissolution of the employment contract will be pronounced per September 7, 2023. There is, unlike under the changed in 2015 in the Netherlands
dismissal law, not a rule of law that entails that this must be taken into account held with a notice period. The Court also takes the long-term one non-activity of Sasso into account. The decomposition thus continues an already long-standing factual situation and Sasso need not be the occasion provided for commanded to prepare for a situation in which he does not work for Gebe.
5.10. Gebe has yet to be given the opportunity to withdraw the request. If she does so, she must pay the costs of the proceedings. Continues withdrawal
if not, the costs of the proceedings will be compensated as stated below.
6. The decision
6.1. notifies Gebe of the intention to terminate the existing agreement with Sasso terminate the employment contract under the award of compensation to him
large ANG 264,801.00 gross and gives Gebe the opportunity to submit the request no later than 0pCase number: SXM202300375 page 8
Judgment date: August 30, 2023 September 6, 2023 at 8:30 a.m. by written statement to that effect
to be delivered to the registry with a copy to the other party;
6.2. if the cancellation request is not withdrawn in time:
dissolves the existing employment contract between the parties due to serious reasons consisting of changes in circumstances as of September 7, 2023,
with the award to Sasso at the expense of Gebe of a large compensation ANG 264,801.00 gross and with the stipulation that the (possibly) accruing to Sasso
cessantia payment is deemed to be included therein;
6.3. orders Gebe to pay the amount stated under 6.2 for '1 October 2023 and declare this payment order immediately enforceable;
6.4. if the application is withdrawn, orders Gebe to pay the costs of the procedure budgeted at ANG 2,500.00 for the salary of the authorized representative and compensates in the In the event of withdrawal, the costs of the proceedings shall be waived by each party
remains responsible for its own costs; on-the-counter request
6.5. dismisses Sasso's claims;6.6. compensates the costs of the proceedings in such a way that each party remains burdened with its own costs.
This decision was made by mr. G.A.F.M. Wouters, judge, and op
pronounced in open court on 30 August 2023 in the presence of the clerk.