Opinion: UncertaintyPOSTED: 11/30/11 7:05 AM
After yet another day at the courthouse, Wifol-members who belong to the work force at the former Pelican Resort – now Simpson Bay Resort – must be scratching their heads in despair. The wrangling between the union and the timeshare resort has reached a stage where lay observers are no longer able to distinguish fact from fiction. That’s because the arguments both parties present to the court are of a highly legal-technical nature. That’s fodder for legal minds, but the eventual outcome will affect the life of real people and their families.
One of the key arguments yesterday focuses on the term emergency situation. The question is whether executing the November 25 court ruling that obliged the resort to keep paying all 182 employees based on the collective labor agreement Wifol signed with the resort’s previous owner creates such a situation.
The resort argues, obviously that it does. There is hardly any money to keep the resort open and an obligation to pay all these workers would simply mean that it has to cease its services. At least that’s the argument the attorney for Simpson Bay Resort and Royal Resorts presented to the court.
But how poor is the resort really? That is a big question mark, and the attorneys for Wifol pounded on that aspect. So far, the resort has presented financial data that, in the opposing party’s view, easy to manipulate. They do not stem from approved annual accounts, so basically the resort could say anything.
Whether or not this is true – we honestly don’t know.
The fact remains however that the new owners bought the resort at auction in December on the cheap, that Royal Resorts receives a stiff management fee and that the bothersome tenants association has been sidelined.
It seems to be timeshare-heaven on earth for the new owners, but according to its attorney the reality is different. Operational costs stand close to $900,000 per month and on its $3 million credit line the resort has just $ 1 million left. One does not need a calculator to realize that the resort is close to the abyss – if – and that’s a big if – these figures are truthful.
We are certainly not claiming that the resort is lying about its financial position – we simply don’t know – but the attorneys for Wifol have at least serious doubts. The resort could of course take away those doubts by presenting financial data that have gone through the meat grinder at a certified public accountant.
The Wifol-attorneys told the court yesterday that the resort has been talking big about all kinds of gloomy financial scenarios since January but that it comes up short every time it presents figures during the court procedures. The information comes from the resort itself without verification by an independent third party, the Wifol-attorneys say, adding for good measure that it is easy to twist unverified annual accounts in every possible way.
That the resort has to put up a fight to become profitable is in itself not an extraordinary situation, the attorneys say. Plenty of other companies find themselves in exactly the same situation.
So what is the long and short of this story? The only thing that is certain at the moment is that the Wifol-members continue to live in uncertainty. They are eagerly awaiting the decision by the appeals court. That ruling could be there on Friday, but it could also arrive after the weekend.
The Wifol-attorneys have argued that the Common Court is now like a butcher inspecting his own meat. That’s because the Common Court ruled in favor of Simpson Bay Resort on November 4 and November 7. The Court in First Instance, with its decision of November25, infact overruled the higher court. And now that higher court has to look at its own decisions of November 4 and 7 and see them in the context of the November 25 ruling.
The good thing is that the Common Court is not a fixed panel of three judges. The three judges that dealt with yesterday’s court hearing are not the same as the judges that sided with Simpson Bay Resort on November 4 and 7. Yesterday, mrs. De Boer, Sijmonsma and Van Kooten heard the arguments. The early November decisions were taken by their colleagues mrs. De Kort, De Haan and Van Gastel.
All these judges are independent, so it is not at all certain that the Common Court will mimic the November 4 and 7 rulings later this week. But the uneasy feeling in the Wifol-camp about the butcher inspecting his own meat remains. After all, all these judges reside in Curacao, and they all interact with each other on a daily basis.
Frustrating as this may be, there is nothing left to do. Just wait and see.