Housing foundation SMHDF suffers defeat in court

POSTED: 07/10/15 8:30 PM

More than 100,000 guilders compensation for two ex-employees

St. Maarten – Housing foundation SMHDF has to pay two former employees more than 100,000 guilders in compensation, the Court in First Instance ruled yesterday. The court granted former financial controller Emilio Kalmera 56,268 guilders (around $31,500) and former secretary Miuricia Williams 45,400 guilders (around $25,000).

The rulings are a serious defeat for the foundation’s supervisory board. On December 12, 2014, SMHDF’s attorney Jairo Bloem informed both employees about their immediately suspension without pay for an undetermined period, pending an investigation by the government accountant bureau Soab. The letter stated that the two members of the supervisory board were authorized to take this decision and that there were serious suspicions of “fraud, embezzlement, violation of human resources procedures, forgery of documents and deliberate mismanagement of funds of the SMHDF.”

Attorney Cindy Marica responded to the suspension letters on January 7, stating that the suspensions were void. The foundation suspended its director, Henry Lynch, at the same time and he fired him later.

Williams and Kalmera asked the court to declare that the SMHDF acted unlawfully towards them, that the suspension is void, that the foundation is liable for damages and that the working relationship has been irrevocably disturbed.

Williams demanded 45,400 guilders for dissolving her contract, plus 10,000 guilders in damages based on unlawful suspension and wrongful act. Kalmera demanded 99,780 guilders for dissolving his contract and 25,000 guilders for unlawful suspension and wrongful act.

Both former employees furthermore demanded payment for remaining vacation days, the publication of a public apology, a reference and payment of collection costs.

The court ruled that the actions of the SMHDF are not in line with the behavior of a good employer. Therefore, the court attributed the crisis of confidence to the foundation. In both cases, the court considered that it is still unclear which suspicions or reproaches the foundation entertains against both ex-employees.

“The suspension letters contains serious accusations, but they refer to (former director) Lynch,” the court notes in its ruling. Kalmera and Williams must have been aware of the actions of their director Henry Lynch. “According to the SMHDF Lynch is guilty of “large-scale deceit, embezzlement and fraud.”

The foundation holds it against Williams and Kalmera that they let this happen, that they did not intervene and that they did not sound the alarm. In Williams’ case, the SMHDF charged, she received a promotion with favorable conditions for her home and a loan. Kalmera allegedly traveled to Belize “presented as a business trip, while it is certain that Kalmera used the occasion for private purposes.”

Williams countered that it was not her task to control her director. “Loans were also granted to members of the supervisory board that now support the suspension,” she said.

Kalmera said that he had addressed irregularities with Lynch but that, in general, it was not his task to control the director. “The trip to Belize was a business trip, because we looked at projects that are significant for future plans in St. Maarten.” Kalmera combined this with private activities, but he has always been open about this.

The court notes in its ruling that the SMHDF has presented a large number of documents to substantiate its position. “Only in a late stage an overview was added showing which positions the SMHDF substantiates.” The elucidation given at the court hearing in May was “extremely limited” the court ruling states.

The court found that the foundation should have made clear what exactly the suspicions were against Williams and Kalmera and it should have given both the opportunity to defend themselves.

Based on these circumstances the court found that the reason for the disturbed working relationship and the damage to the trust in Williams and Kalmera “can only be explained from the actions of the SMHDF.”

The court awarded Williams 45,400 guilders in compensation for the dissolution of her contract, but it denied her other financial claims because they are insufficiently substantiated.

Kalmera’s compensation is lower than what he demanded, but it is based on a court formula that is routinely used in similar cases.

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