St Maarten Courts

The court of St Maarten terminates the employment contract of an air traffic controller

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The dismissal of an air traffic controller employed by the company that operates Juliana airport has been confirmed by the courts. The reason: as an employee, the employee did not have the right to exercise another professional activity, but he managed a company which carried out cleaning work within the airport platform after Hurricane Irma .

On becoming a member of the airport staff in August 2003, the employee signed an employment contract stipulating that ” without the employer’s prior written agreement, he must not accept any paid work or unpaid time-consuming work with or for third parties during the term of his employment contract, nor shall he, alone or with other persons,

Mr. G.C.C. Lewin sworn in as a member of the Joint Court of Justice

directly or indirectly establish or operate a business competing with the employer’s business, in whatever form, take a financial interest or perform work, whether free of charge or not, for such an enterprise”. However, in early 2016, he created his own cleaning company without informing the airport’s human resources.

This was discovered in the context of a police investigation opened following suspicions of favoritism and fraud during the post Irma works. This company was selected for cleaning. The manager and employee of the airport was heard and a search took place at his home. He was also remanded in custody.

The management of the airport, however, asked the employee for clarification as to his link with the said company and its role post Irma.“Following the severe damage caused by Hurricane Irma, the airport found itself in a catastrophic situation, which had to be remedied quickly. As a business owner since 2016, he offered his services.

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He provided the necessary documents requested [to perform the service]. The work was carried out by persons hired by the company in question. Payments were made after the airport confirmed that the work had been done, and after the “purchase order” was approved and signed by three different people within the airport. (…) The services were actually approved by the management of the airport and were done in full view of everyone, ” answer the employee’s lawyers.

On the other hand, they cannot provide the additional details requested such as the company’s KBIS, invoices and terms of payment because, they explain, these documents “were confiscated by the public prosecutor during the search”. And to specify that they must “be in the possession of the employer since they have been validated” at the time of the alleged facts.

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The investigation is continuing and it will appear that according to “the employer’s business records database, no application forms have been prepared or approved, no records or other information about [the employee’s business] n was found, only the invoices, no quotes were requested from other companies, that only the first invoice is stamped and stamped in accordance with internal procedures,

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that the invoices do not contain the chamber of commerce number of the said company, that the first invoices give a brief description of the work carried out, the number of employees engaged, the rate, the turnover tax and the total amount, without any payment period, [that then] the information on invoices are becoming more and more limited”.The investigation confirmed that all invoices have been paid for a total amount of $427,405.

When questioned, the head of the company refused to indicate who his employees were and how he had recruited them. He explained that in 2019 his business went out of business “because there was no more work”.

In view of the elements at its disposal, the airport management has seized the Sint Maarten court of first instance to ask it to terminate the employment contract of its employee with immediate and rapid effect for “urgent reason”. The employee is asking for compensation in the amount of $157,970.

During its investigation at the hearing, the court found that the employee had not received written authorization, as provided for in his employment contract, to carry out ancillary activities, that he never reported them. , that his company’s invoices signed by heads of departments at the airport cannot replace the requirement of a written agreement in the employment contract.

The court decided to terminate the employment contract for urgent reasons.

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