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On July 12, 2022, the Court of First Instance of Sint Maarten heard a first instance – single procedure in the field of contract law, which is part of civil law. The case number is SXM202200653, known under ECLI code ECLI:NL:OGEAM:2022:47.
Type of procedureFirst instance – single BodyCourt of First Instance of Sint Maarten JurisdictionCivil law » Contract law Case number(s)SXM202200653 Date of judgmentJuly 12, 2022 Date publishedJuly 13, 2022
COURT IN FIRST INSTANCE OF SINT MAARTEN
Case Number: SXM202200653
Judgment in summary proceedings dated July 12, 2022
living in Sint Maarten,
authorized representative: mr. CJ KOSTER,
the public limited company PRINCESS JULIANA INTERNATIONAL AIRPORT EXPLOITATIEMAATSCHAPPIJ NV,
based in Sint Maarten,
authorized representative: mr. K. DE L’ISLE.
The parties will hereinafter
[the director]and PJIAE are mentioned.
The course of the procedure
The General Court took cognizance of the following procedural documents:
petition with exhibits, received on June 2, 2022,
additional productions of
[the director]and a change of requirement,
productions of PJIAE,
affidavit on behalf of
affidavit on behalf of PJIAE.
The oral hearing took place on 24 June 2022 in the presence of the parties and authorized representatives. The clerk has kept a record of what was said.
Verdict is set today.
On September 15, 1993
[the director](born .. June 19..) as an employee of PJIAE, the operator of the international airport on Sint Maarten. He has held various positions. A “Service Agreement” was concluded between the parties on 1 August 2017. It follows that[the director]as of July 31, 2017 has been appointed as one of the statutory directors of PJIAE, with the title of Chief Operations Officer (COO). The Service Agreement has been entered into for the period August 1, 2017 to July 31, 2022.
PJIAE has a Supervisory Board of Directors, hereinafter: SBOD.
The sole shareholder of PJIAE is Princess Juliana International Airport Houdstermaatschappij NV, hereinafter: the Holding. The shares of the Holding are held by the Land of Sint Maarten.
Article 8 paragraph 2 of the articles of association of PJIAE reads as follows:
“Directors can be immediately dismissed by the general meeting of shareholders for urgent reasons at any time. In other cases, directors may be dismissed at any time by the general meeting of shareholders, on the understanding that a decision to dismiss a director, other than at his own request, can only be taken after the director concerned has been given the opportunity to express his opinion vis-à-vis the general meeting of shareholders. to account for the meeting of shareholders.”
Article 1.2. of the Service Agreement reads as follows:
“This Agreement will furthermore end by operation of law:
In the event the COO is dismissed from his position by way of resolution of the General Meeting of Shareholders as per the effective date of that resolution;
In the event the COO is found guilty of a criminal offense.”
“In the Event the COO is dismissed with immediate effect for urgent reasons by way of resolution of the General Meeting of Shareholders before the expiration of the term of this agreement, the COO shall have no claim for further compensation or severance pay beyond the date of termination.
“Urgent Reasons” shall mean an act of fraud, embezzlement, or theft against PJIAE, conviction of felony or plea of guilty, gross neglect of duties, or violation of this Agreement by the COO.”
“In the event the COO is dismissed without cause, at any time during the term of this Agreement, 12 months’ gross fee plus vacation allowance shall be paid out to the COO in 12 equal monthly installments during a period of 12 months subsequent to said dismissal.††
“In the event the COO is terminated without cause and for any reason or this agreement is not renewed, the party (COO) will again be employed by the company (PJIAE NV) as an employee in a similar function and conditions prior to those applied immediately prior to this agreement, plus the applicable benefits and accumulated years in service will stand.
Said position may be subject to applicable VDSM screening and if so, article 1.5 would apply.”
“The COO must give proper notice to the SBOD in the event he is unable to come to work or perform his duties.”
“Both during this agreement and after its termination, the COO must treat all information and matters entrusted and/or coming to his knowledge by virtue of his position with strict and full confidentiality. No information may be divulged or provided, whether directly or indirectly, to any third party unless the COO is authorized to do so by the General Meeting of Shareholders or such is required in the execution of the COO’s duties and obligations under this agreement. In light of this duty of confidentiality, parties agree that the COO will send and receive all company related emails only through the company email account and/or server.”
Article 14 of the“Regulations for the Managing Board of PJIAE”contains the same regulation as Article 9.1. of the Service Agreement. The last line of this article reads:
“No individual Managing Director may provide information to third parties without a Managing Board decision to that effect.”
Received on September 2, 2019
[the director]an email from the chairman of the SBOD for making commitments on behalf of PJIAE without the approval of the SBOD. This e-mail contains the following passage:
“In light of the aforementioned you are formerly put on notice that if you allow these types of irregularities to occur going forward, it will have disciplinary and financial consequences and even possible termination. The companies reputation and integrity has been compromised. Moreover, the irregularities that have been identified so far will be considered when determining financial components of your remuneration.”
Responds to a lawyer’s letter dated September 16, 2019
[the director]detailed here. He explains in it that a payment was made to the insurance intermediary to facilitate the repair of the damage caused to the airport by Hurricane Irma on September 6, 2017.
On May 25, 2020, a meeting of the SBOD will take place, with CEO
[the CEO]and[the director], which extensively discusses the cooperation between the latter two. The SBOD gives its view on this in an extensive letter dated 15 July 2020.
By letter of 7 September 2020 to the SBOD,
[the director]to pay out remuneration components for 2017 up to and including 2019.
The SBOD responded in detail to this in a letter dated 29 October 2020. This letter concludes as follows:
“After careful consideration, the SBOD believes that the only fair approach with respect to the 2019 and 2018 evaluations, is the following:
†no (bonus related) evaluation for 2018 and 2019 will be carried out;
†as full and final compensation for your performance for the years 2018 and 2019, you will receive an amount of one gross monthly salary for 2018 and one gross monthly salary for 2019 (one month salary is what the employees got and management board members should, especially under the current circumstances, not get more than employees), ie ANG 38,000.00 gross in total for the two years, to be paid out when the airport has recovered to 2019 levels; and
†your 2020 evaluation will be performed based on the 2020 evaluation format.”
the director] has not signed this letter for approval. The amount of NAf. 38,000.00 has not been paid out.
By letter of 30 March 2021 from the SBOD to
[the director]provides an overview of all information that the SBOD of[the director]want to receive. This letter also asks all kinds of critical questions about the reward components that[the director]has received or wishes to receive. The letter concludes as follows:
“It is clear that, despite multiple reminders, you are not providing the SBOD (timely) with the requested information, which leads the SBOD to conclude that many of these remunerations were enjoyed by you without the required approvals. The fact that you do not respond to certain questions, responses are late and incomplete and your lack of cooperation to promptly get the facts straight in such a serious matter is not taken lightly by the SBOD. This letter serves as an official warning that if this type of behavior continues that the SBOD will take disciplinary action.”
By letter of 26 October 2021 from the SBOD to
[the director]he will be suspended as a result of his arrest of which, according to this letter, PJIAE only became aware of the following (quoted in the letter) press release from the Public Prosecution Service†
“On Friday, October 22, 2021, the Criminal Investigation Team (RST) arrested two people and conducted searches at two houses and at the addresses of two businesses on Sint Maarten under the supervision of the investigating magistrate.
The judgments of MH and RG and the searches are related to an extensive investigation codenamed “Mitte” and is focused on fraud related to cleanup and repair works carried out at Princess Juliana International Airport after Hurricane Irma.
The “Mitte” investigation is executed RST under the leadership of the Anti-Corruption Taskforce TBO of the Attorney-General’s Office of Curacao, Sint Maarten, Bonaire, Sint Eustatius and Saba.
TBO focuses on a specialized approach to combat corruption and subversion of financial and economic crime. Additionally, the team investigates fraud, forgery and money laundering.”
The letter also states that the SBOD will conduct an investigation“in connection with the allegations against for which you have been arrested. Please be advised that you are required to fully cooperate with this investigation. You are hereby requested to provide full details of the alleged fraud and criminal file. Please provide these details byWednesday, October 27, 2021 COBat the latest.†Please be advised that failure to comply with the SBOD’s investigation into this matter may have consequences, including your dismissal.”
The letter of October 29, 2021 from the SBOD to
[the director], in which he is suspended for two months, decides as follows:
“As you know the SBOD is investigating the matter. As a statutory director, you are required to fully cooperate with this investigation, including but not limited to providing details regarding the suspicions, and sharing the criminal file against yourself (if and when permitted by law). For the record we note that you have not provided any information regarding the suspicions, nor did you convey your views about the suspicions. The SBOD considers this a material breach of your duties and obligations as managing director of PJIAE.”
the director] was in pre-trial detention from 22 October 2021 to 29 October 2021, without any restrictions being imposed on him. He was released from pre-trial detention by the Public Prosecution Service. There was no question of a detention order. To date, the Public Prosecution Service has not made a decision about further prosecution.
In October to December 2021, there was an extensive email exchange between the SBOD and the counselor of
[the director]in his criminal case. The SBOD wants to know what the suspicions are and asks[the director]the criminal file.[the director]replies that he is innocent, does not have the criminal file and that he is not obliged to share the suspicions that the Public Prosecution Service has against him with the SBOD.
By letter of 3 December 2021 from the SBOD to the Holding,
[the director]nominated for dismissal as statutory director:
“In our view, by not providing any substantive information regarding his judgment and detention of no less than 8 days, Mr.
[the director]has grossly neglected his duties and breached the service agreement between himself and PJIAE, which constitute Urgent Reasons for his dismissal, especially because Mr.[the director]received a written warning from the SBOD in March 2021 in which the SBOD made clear that not responding to questions, providing incomplete responses and a lack of cooperation is not taken lightly by the SBOD and that if such behavior continues, disciplinary measures would be taken. In light of all the aforementioned, we are of the opinion that under the current circumstances a dismissal of Mr.[the director]as statutory director of PJIAE is appropriate and warranted.”
On December 23, 2021, the general meeting of shareholders of PJIAE, in the presence of
[the director], the following decisions:
“The Holding Company, as sole shareholder of the Company, has decided not to take a decision on the recommended dismissal of Mr.
[the director]as yet, until such time that an independent investigation has taken place and the results thereof can be considered (DECISION) †
[the director]has agreed to take voluntary leave with pay at the request of the Holding Company, as sole shareholder of the Company (DECISION) , to allow for the independent investigation to take place. Meantime all restrictions remain in place for Mr.[the director], including regarding access to the Company, as was the case during the previous suspension by the Supervisory Board of the Company.”
By handwritten letter dated January 26, 2022 to the States of Sint Maarten
[the director]the following:“This letter serves as a cover letter for resubmitting the documents requested by the parliament members.”This includes a letter from[the director]of 22 June 2020 to the President of the States and a letter of the same date to the Council of Ministers. Added to this are approximately 500 pages of internal documents relating to PJIAE’s financing and business operations. It is also about the complaint that[the director]concerns what, in his opinion, is the headstrong behavior of fellow statutory director CEO[the CEO]†
By e-mail dated February 4, 2022 from the SBOD to
“By letter of 15 July 2020, we emphasized to the management board that leaking company information by a member of the management board is unacceptable and that if we determine that any member of the management board leaks information, (disciplinary) action will be taken.
In the past days, we have received information that you have provided information of PJIAE to third parties. This has even resulted in the information being available for the media. On 31 January 2022 we obtained a copy of file which you have made available to third parties, which includes correspondence between board members and minutes of board meetings. We also noted that you chose to leak selective information, deliberately presenting an incomplete and inaccurate picture of the facts.
The SBOD has recommended to PJIAH that you be dismissed based on the gross neglect/violations. You are summoned to refrain from providing PJIAE information to third parties. You will be held liable for any damages suffered by PJIAE because of your actions.”2.28.
An external investigation report of 26 February 2022 has been drawn up in response to the criminal suspicion of the Public Prosecution Service against[the director]and an employee of PJIAE, Mr[A]† It says about[the director](p. 26):
“Mr.[the director]has failed to comply with applicable procedures as a caretaker and as CEO/CFO/COO. As a result, PJIA experienced financial losses. PJIA has clear procedures in place to protect PJIA against these risks.”2.29.
Further on it says that[the director]as sole driver“care taker”after Hurricane Irma was responsible for all“business operations”† It is further stated that the SBOD is also responsible”for the period directly after Irma by not complying with the correct and desired governance structure.”Furthermore, the reporter cannot determine the amount of the damage.2.30.
This report is not with[the director]shared. He saw it for the first time in the context of these preliminary relief proceedings.2.31.
On February 28, 2022,[the director]invited in writing to the meeting of shareholders to be held on March 14, 2022. Agenda item 3:
“Dismissal of Mr. mmm[the director]as director of the Company for the following reasons (see Annex 1):
a.violation of duties and obligations (Continuation agenda item EGMS December 23, 2021/December 28, 2021),
b.leaking of confidential information (the link to the documents submitted to Parliament by you will be digitally sent to you).”2.32.
An investigation report of 5 March 2022 has also been drawn up in response to the advice of the SBOD to[the director]to fire. Page 8 of the report states:“The investigation does not cover the fraud allegations for which Mr.[the director]is under criminal investigation.”The report looks at communication between all stakeholders after the arrest of[the director]had become publicly known.2.33.
At the shareholders’ meeting of March 14, 2022,[the director]dismissed as director under the articles of association for the reasons stated in the invitation of 28 February 2022. The dismissal decision is identical to the text of agenda item 3.2.34.
The letter of March 17, 2022 from the SBOD to[the director]starts as follows:
“Following the recommendations of the[SBOD]or[PJIAE]the General Meeting of Shareholders of the Company dismissed you for urgent reasons with immediate effect as of 14 March 2022 (the “Dismissal” †
As a result of the Dismissal, the Service Agreement between you and the Company entered into on 1 August 2017 (the “Service Agreement” ) has ended by operation of law pursuant to article 1.2.1 of the Service Agreement. Accordingly, you have no claim for further compensation or severance pay beyond the date of termination. Therefore, your salary and benefits will be paid up to 14 March 2022.”2.35.
In the statement of April 28, 2022, a former director of the Holding, Mr[B], among others the following:
“I instructed and told Mr.[the director]to send all his concerns to the Council of Ministers and Parliament, including substantiated documents (minutes, agreements, etc.) † The supervisory board (PJIAE) was not responding timely to or addressing the severe issues and objections, which is why I instructed him to do so.
PJIAH was aware of the issues and attempted, but failed, to obtain information from the supervisory board (PJIAE) on how and when Mr.[the director]’s concerns would be addressed.”2.36.
A former member of the SBOD, Ms[C], confirms these statements by[B], in its statement of the same date.2.37.
PJIAE has[the director]s performance assessed according to forms dated December 28, 2020 and May 25, 2022 for the years 2020 and 2021 respectively.3the dispute3.1.
After requirement change progresses[the director]that the General Court, by judgment to be declared provisionally enforceable, shall make the following decisions:
to convict PJIAE within 24 hours of the judgment being given to[the director]to re-engage as an employee in the position of Director Airport Operations, at least a comparable position with employment conditions that are equal or comparable, as well as to order PJIAE to pay NAF’s wages. 15,463.43 until the employment contract has been legally terminated, whereby PJIAE is obliged to respect the 29, at least 24 years of service accrued, all this on pain of forfeiting a penalty,
Order PJIAE to comply with article 1.4 of the Service Agreement by ordering PJIAE in any case (for the months of March to June 2022) NAf. 104,760.00 to[the director]payable and for each month from July 2022 NAf. 26,190.00 to be paid up to and including February 2023, whereby the Court can rule that the monthly benefit is converted into a wage supplement if the defendant complies with claim a., all this in accordance with Articles 1.4 and 2.1. of the Service Agreement,
PJIAE to sentence NAf. 30,000.00 to be paid as an allowance for the extra work in 2017, to be increased by the statutory interest from 24 May 2019 (date of commitment), or at least the date of submission of this petition,
order PJIAE to pay retroactively the 2% annual wage increases from calendar year 2018 to calendar year 2022, plus the statutory interest from 1 January of the relevant year in which the wage increase should have been applied,
order PJIAE to pay out accrued but not taken 31.25 vacation days,
order PJIAE to pay the holiday allowance for 2021 and 2022 of NAf. 13,987.42 to be paid out,
to the extent necessary, the payments claimed for this or a part thereof to be determined in good justice by the Court of First Instance[the director]by way of advance payment,
order PJIAE to pay the costs of the proceedings.3.2.
PJIAE requests the General Court to dismiss[the director]reject, or at least declare him inadmissible therein, with the conviction of[the director]in the process costs.3.3.
In so far as relevant, the arguments of the parties are discussed in more detail below.4The rating
The urgent interest is given with the nature of the claims (re-employment in another position and payment of payable components).
The arguments of the parties4.2.
Briefly and concisely presented[the director]the following. Since May 2019 there has been a lack of cooperation between the CEO, Mr[the CEO], and himself.[the CEO]goes his own way and pays little attention to his fellow statutory director[the director]† The SBOD, despite many written complaints from[the director], let this fester. Contrary to what has been agreed in the Service Agreement,[the director]s performance is not evaluated and he does not receive all agreed compensation. The reasons for dismissal have been sought. In any case, it is clear that the criminal suspicion is not a reason for the dismissal; Contrary to what the SBOD stated, the researcher did not report on this.[the director]is innocent and PJIAE has violated the presumption of innocence with the dismissal. There are no urgent reasons for his dismissal, as is apparent from Article 1.3. of the Service Agreement, which contains an exhaustive list of urgent reasons. Then he may return as an employee or he is entitled to continued payment of wages for 12 months; see article 1.4. The dismissal for urgent reasons was not on the agenda for the shareholders’ meeting, but only the “intended dismissal”. The dismissal decision itself does not refer to“urgent reasons”† In the letter of March 17, 2022, but that is not legally valid; only the shareholder can amend a dismissal decision. In terms of content, the reasons for dismissal do not apply either: from[the director]who was in detention simply could not be expected to inform PJIAE of the suspicions. What he could share, he did through his lawyer. And it follows from the statements of a former member of the SBOD and of a former director of the Holding that they were aware that he shared certain documents with the Council of Ministers and the States. That had everything to do with the unworkable relationship with the CEO.
These arguments from
[the director]are substantively contradicted by PJIAE.
‘s formal arguments
The General Court must assess whether it is highly probable that the judge on the merits would annul the dismissal decision on the grounds that it is contrary to the law or the articles of association. The following is considered in this regard. Article 8 paragraph 2 of the articles of association has been complied with: a general meeting has taken place and
[the director]has been heard in it. It has not been argued or proven that any other legal or statutory requirement has been breached by PJIAE in the run-up to the shareholders’ meeting.
In the provisional opinion, it also applies that the notice convening the shareholders’ meeting of 14 March 2022 clearly demonstrates to a sufficient extent that there is a dismissal for an urgent reason. This is apparent from the reasons stated on the convocation: dereliction of duty and the leakage of confidential information. These reasons are difficult to classify as a (more) regular dismissal of a director under the articles of association. In addition, the first ground for dismissal was preceded by an extensive email exchange between the Chairman of the SBOD and the counselor of
[the director]in the criminal case. From this it can be deduced that the SBOD is silent about the reason for[the director]s detention was very high. With regard to the leakage of confidential information,[the director]by letter dated 26 January 2022 has confidential documents†[ge]resubmit”to States and the Council of Ministers. On February 4, 2022, the SBOD has[the director]indicated that this amounts to“gross neglect/violations”and[the director]will be held liable for the damages of PJIAE due to the leakage of the confidential documents. Combined with the text of the notice convening the general meeting of shareholders, the[the director]have been clear that there was a dismissal for serious reasons within the meaning of Article 8, paragraph 2 of the Articles of Association.
‘s formal arguments
[the director]so don’t go up.
The reasons for dismissal – introduction
In the provisional opinion, this constitutes a procedurally correct decision to dismiss by the General Meeting of Shareholders for urgent reasons in accordance with the law and the Articles of Association. It must be assessed whether the urgent reasons invoked fall under the definition of Article 1.3. of the Service Agreement. If one of the reasons is urgent, it leads to the conclusion that
[the director]is not entitled to the agreed severance payment, nor is he entitled to return as an employee in a position comparable to that before he took office as COO.
The Court notes that
[the director](see paragraphs 68 and 69 of his application) the claims under a. and b. based on the Service Agreement.[the director]argues that the question of whether the dismissal decision is voidable is actually irrelevant in order to nevertheless allow the claims. The compelling reasons must be assessed solely on the basis of Articles 2.1. and 1.4. of the Service Agreement. And that is a lower threshold than a destruction action based on Book 2 of the Dutch Civil Code.
In the provisional opinion, however, a legally valid dismissal decision for an urgent reason is a necessary condition for answering the question of whether there is an urgent reason on the basis of the Service Agreement. After all, the Service Agreement has been drawn up to prevent the appointment of former employee
[the director]to become a statutory director so that the articles of association and the Service Agreement are coherent. So: if there is no dismissal for an urgent reason, then[the director]receive the severance pay or return to employment. If there are urgent reasons, then[the director]do not rely on these facilities. In that case, he cannot derive any rights from the Service Agreement.
This means that the General Court must assess whether the compelling reasons, if established, fall within the definition of Article 1.3. and 2.1. of the Service Agreement, taking into account what befits a statutory director in the performance of his function. Other than
[the director]argues, it is not the case that the text of the dismissal decision alone is decisive for the question of whether there are urgent reasons within the meaning of the Service Agreement. On the basis of (if necessary) an explanation of the Service Agreement, the General Court must assess whether one of the urgent reasons stated therein, taking into account all the circumstances under which the performance of its directorship under the articles of association is performed.
The reasons for dismissal – violation of duties and obligations
As considered above, the alleged ground “violation of duties and obligations” about the silence of
[the director]about the criminal charges against him. PJIAE states that it is obliged to be open about this.[the director]states that he is innocent and that he has the right, also towards PJIAE, to remain silent about this so as not to damage his defense in any criminal proceedings against him.
It is clear that the facts underlying this urgent cause by PJIAE have been established. The parties have emailed each other very extensively and
[the director]according to this correspondence categorically refused to provide the clarity requested by the SBOD.
The question is therefore, in view of Article 1.3. of the Service Agreement, or this refusal“gross neglect of duties”yields. The Court considers that also between PJIAE and its statutory directors the principle of“nemo tenetur”goes up;
[the director]does not have to cooperate with his own criminal conviction. Could it be that[the director]invokes his right to remain silent before the police and the judiciary, but that, on pain of dismissal, he would be forced to discuss the suspicion in full with the SBOD, there is a risk that his statements will be shared with the judiciary and the police. This would therefore undermine his defense in the criminal case and Article 6 ECHR stands in the way. So the requirements of the SBOD that[the director]full disclosure and even the criminal fileparts go, in provisional opinion, much too far.
In the provisional opinion, however, the
[the director]was obliged to provide insight to PJIAE about the nature and content of the criminal suspicions against him. PJIAE had every interest in this, in view of the required collegial cooperation in the board and the media attention. The argument of[the director]The fact that he does not know this well because the Public Prosecution Service was not clear about this does not hold. After all, the press release of the Public Prosecution Service shows that it concerns the period shortly after the passage of Hurricane Irma, when[the director]was the only statutory director, and that the suspicions relate to“clean up and repair works”† From[the director]It should have been expected that, in response to PJIAE’s request, he would have told the SBOD what questions were put to him. He didn’t have to go into his answers to that. Likewise, he should have explained to the SBOD which documents were shown to him. He did not have to share his reaction to those documents in the police interrogation with the SBOD. With this information, the SBOD could have initiated a targeted internal investigation and made its own assessment as to whether further cooperation in the collegiate board with[the director]was still indicated.
The conclusion is that complete silence about the suspicions by
[the director]indeed comes down to“gross neglect of duties”and therefore constitutes an urgent reason. A director under the articles of association may be expected to provide the SBOD with the aforementioned information upon request, but even spontaneously, so that PJIAE is enabled to conduct its own targeted investigation and to assess whether the position of[the director]in the statutory (collegiate) board is still tenable. The provision of the aforementioned information would also have resulted in PJIAE being able to communicate about this effectively and in a timely manner internally and externally.
In this context, the two research reports still deserve discussion (for the sake of completeness). With regard to the report of 5 March 2022, this has no value whatsoever for the assessment in these preliminary relief proceedings. It does not refer to the (criminal) suspicions against
[the director], and gives no more than a sort of enumeration of the SBOD’s questions about this and the reactions of[the director]and his counselor thereon. Nor can the report of February 22, 2022 “count”; this is not in concept with[the director]and so he was never able to comment on it.
The reasons for dismissal – leaking of confidential information
It has been established, in the provisional opinion, that
[the director]has leaked confidential information several times. This is apparent from his own handwritten letter dated January 26, 2022, in which this is stated verbatim. He talks about“resubmit”and it appears from the documents that he already sent the same documents to Parliament and the Council of Ministers in 2020. These have apparently been lost to these authorities.
[the director]states that providing this information to Parliament and the Council of Ministers can indeed be regarded as prohibited information leakage for the following reasons.
In the first place because Article 9.1. of the Service Agreement it follows that the distribution of such information to third parties is only permitted with the approval of the general meeting of shareholders of PJIAE. It is clear that no such permission is available. Article 14 of the Regulations prescribes that the statutory board must agree, while no such decision has been made. This is not affected by the fact that the former director of the Holding states that he
[the director]has authorized the dissemination of the information, which is confirmed by a former member of the SBOD; there is no shareholder resolution to that effect available.[the director]should have followed the rules of the Service Agreement and the Regulations. His responsibility as a director brought this with it. If he felt that the situation required the provision of the information, he should have put things on the agenda himself in the board, or in the board’s consultation with the SBOD, and if he couldn’t find a solution, he should have asked the board to convene an extraordinary meeting of shareholders about this (as provided for in article 12 paragraph 4 of the articles of association). All these steps has[the director]skipped; instead, in 2020, he secretly leaked confidential information. In the provisional opinion, furthermore, if[the director], after having taken all these steps, he remained of the opinion that as a statutory director he could no longer do his job, he could have resigned himself, or at least could have asked the SBOD to resign him, and could make use of the financial and work provisions in the Service Agreement. This is the ultimate consequence for a statutory director who is unable or unwilling to cooperate with his fellow directors and the SBOD and one of the characteristic differences of the statutory director with that of an employee with an employment contract.
Secondly, the States and the Council of Ministers cannot be criticized, as
[the director]as the actual shareholder. The only shareholder that PJIAE has is the Holding and it must answer to its own shareholder. Parliament may invite directors of government entities to their public or private meetings to answer questions from Members of Parliament, but that does not affect the rules prescribed by law, statutes and the Regulations and where[the director], just like his fellow directors and the SBOD of PJIAE, must comply.
[the director]have been clear that the leak would harm PJIAE. The nature of the information quickly showed in 2020 that it had to come from high up within the organization. In the provisional opinion, the Court finds it incomprehensible that a member of the statutory board of an international airport leaks this confidential information and thereby exposes the company to all kinds of risks. And then keeps silent about it for years, even at the moment that the SBOD, please note, at the request of[the director], devoted an hour-long session to the lack of cooperation between[the CEO]and himself who according to[the director]the cause of the problems he experienced within the board.
The reasons for dismissal – conclusion
The conclusion is therefore that the conduct of
[the director]on information leakage amounts to“gross neglect of duties”and “violation of this agreement”† Because there are several urgent reasons within the meaning of the Service Agreement, so also with regard to the failure to provide information about the criminal suspicion against him, PJIAE is not obliged to[the director]to be rehired as an employee. Nor is there any reason to pay him the severance payment of Article 1.4. to pay out. The claims under a. and b. from[the director]are therefore rejected.
The other claims of
With regard to the claim under c. the following. This one looks at the observation by
[the director]of the duties of the CFO and CEO in the period from August to December 2017. In the meeting of 24 May 2019, it was decided that[the director]would receive the allowance. However, this has never been paid out, while there is a decision of the SBOD of 24 May 2019 to that effect, according to[the director]†
However, PJIAE argues that there is no formal decision. That is the reason that
[the director]by letter dated 3 June 2019 to the Chairman of the SBOD requested this amount be allocated. By letter dated 29 October 2020, the SBOD stated, for various reasons, that it did not intend to pay this amount.
In view of these standpoints, the opinion is that this issue is not suitable for summary proceedings. The parties must request the opinion of the judge on the merits in this regard. This means that the claim under c. is rejected.
The claim under d. relates to the 2% annual salary increases from 2018 to 2022. This claim is also rejected, as it is dependent on the assessments by the SBOD of the functioning of
[the director]† In view of the substantive defense of PJIAE, the General Court considers this issue too laborious for interim relief. The claim under d. is therefore also rejected.
The claim under e. refers to unpaid vacation days. These are recognized by PJIAE, so that the General Court will grant this claim.
The claim under f. refers to holiday pay for 2021 and 2022. PJIAE states that the Temporary National Ordinance of March 16, 2021stands in the way of this. This means that this claim does not lend itself to summary proceedings but must be settled in proceedings on the merits. Therefore, this claim is also dismissed.
If the party is largely unsuccessful,
[the director]ordered to pay PJIAE’s legal costs.
right in summary proceedings:
- condemns PJIAE to
[the director]the net cash equivalent of 31.25 vacation days to be paid,
- declares this conviction provisionally enforceable,
[the director]in the costs of the proceedings, estimated on the part of PJIAE at nil in disbursements and at NAf. 1,500.00 in attorney’s salary,
rejects the more or otherwise advanced.
This judgment was rendered by AJJ van Rijen, judge, and pronounced on 12 July 2022 in open court in the presence of the clerk of the court.
In short: if the employee does not pass the screening, he cannot be re-employed.
Released on October 22, 2021.
The “concerns” mainly focus on the difficult cooperation between
[the CEO], the CEO, and[the director]† has about that[the director]several letters written to the SBOD. In his experience, the SBOD has done little or nothing with it.
Moreover, the Court considers it plausible that
[the director]does not have a criminal file because he has never been brought before the examining magistrate in the context of a request for detention.
Temporary National Ordinance establishing rules regarding the maximum remuneration and the adjustment of employment conditions at (semi) public sector entities (AB2021, no. 08).