The offices of construction company Windward Roads.
PHILIPSBURG--In September 2019 a judge in the Netherlands decided in summary proceedings filed by Dutch construction company Janssen de Jong against former director J.B. (55) of sister company Windward Roads (WWR) that the mother company must pay B. his salaries until his labour agreement was legally terminated. Four months later, the Court of First Instance in St. Maarten dissolved the labour agreement between B. and his employer Janssen de Jong International Secondment Agency (ISA) BV.
B. started working with WWR in May 1992 and was appointed WWR’s director in January 2005 for a gross salary of almost 10,000 euros per month. In November 2009, B. and ISA signed an agreement according to which he was deployed to the Netherlands Antilles for five years on behalf of the Janssen de Jong companies. In June 2012, B. was appointed statutory director of WWR.
It emerged early 2018 that B. was a suspect in criminal investigations for having received money – so called “kickbacks” – from one of WWR’s business relations for a number of years.
The Court found regular transfers of money from WWR to the business relation and from the business relation to B., who is also suspected of bribery of civil servants, of forgery and of money-laundering.
B. has been on sick leave since February 7, 2018, and ISA and B. agreed that he would be suspended for the duration of the criminal investigation.
In its ruling of Wednesday, January 22, the Court of First Instance terminated the labour agreement between B. and ISA. B. was ordered to pay the legal fees for these proceedings, which were estimated at NAf. 1,746.50.
The Court also declared the termination of the temporary employment contract between WWR and B. as per July 22, 2019, legally valid.
However, the judge ordered WWR to pay B. his due salaries from December 2018 up to and including July 22, 2019, with emoluments and interest, and ordered WWR to pay NAf. 1,000 in legal fees.
WWR had filed a criminal report against B., as the company had allegedly suffered considerable damage due to B.’s behaviour as he had allegedly enriched himself at WWR’s expense. In May 2019, the company estimated the damage at 1.5 million euros.
Larimar investigation
B. was dismissed as statutory director as per January 4, 2019, and by letter of January 22, 2019, the temporary contract was terminated as per July 22, 2019.
WWR sought B.’s dismissal because he is one of the main suspects in the criminal “Larimar” investigation. WWR stated during the legal proceedings in the dismissal case that the criminal allegations against B. were so severe that the company deemed it necessary to reach a settlement with the Prosecutor’s Office to the tune of US $2 million.
According to ISA’s and WWR’s petitions to the Court, the Anti-Corruption Taskforce TBO established that $2.5 million had been transferred from WWR to different offshore bank accounts linked to WWR’s agent R.M., who is one of the main suspects and crown witness in the Larimar investigation. With the exception of two, all invoices relating to these transfers were addressed to B.
Investigations also revealed that M. had made several private payments to B. and members of his family. According to Janssen de Jong, these kickbacks paid by M. totalled 8,000 euros, and “presumably” $322,059.
ISA stated in its pleadings that B. had wrongly let the company pay out NAf. 360,000 to himself to finance his children’s studies in the Netherlands, and for several private expenses, such as pool maintenance, lawyer’s fees in connection with his divorce, home furnishings for his ex-wife in the Netherlands, and a private car. He also allegedly settled payments to creditors with company bonuses without his employer’s permission.
B. denied the allegations and said that he had not done anything secret.
B.’s lawyer K. de L’Isle said in response to the criminal allegations that it is incorrect that all attention is focussed on B., because WWR is also a suspect and that settlements have been reached with several representatives of Janssen de Jong Group, including a board member and a controller.
The main line of defence is that B. did not start the alleged wrongdoings, but that these were initiated by and continued all the way up to the board of directors. B. only found out later, his lawyer said, adding that it “should not be forgotten” that consultant M. was already on WWR’s payroll before B.’s appointment as a director.
The lawyer stated that when B. found out about M.’s malpractice in 2011 he had wanted to terminate his contract, “but then the ‘Intermar’ case started in which [co-suspect in the Larimar case – Ed.] Theo Heyliger came knocking on B.’s door to demand payment [of a sum] which M. owed him but which he had not paid.” According to B.’s lawyer, a member of the board of directors had given permission for payment.
She said it was already known in January 2017 that a criminal investigation had been launched and that B. was a suspect. However, he was not suspended until March 2018, and in January 2018 he had received a raise in salary. The reason for his dismissal must have been his arrest, which had forced the Janssen de Jong Group to do “something for the outside world.”
In her client’s defence, De L’Isle also said that WWR’s administration was internally and externally verified. She pointed out that the level of integrity within the Janssen de Jong Group leaves much to be desired. In 2002-2004 the group joined a collective settlement at the request of the Consumer and Market Authority ACM, and in 2009 the company was involved in construction fraud, also in the Netherlands.
Based on Excel spreadsheets and other documents submitted to the Court, the judge said the construction company had provided insufficient evidence that B. had made wrongful withdrawals. The judge also said that ISA had not been a good employer, as it had failed to question B. pertaining to the allegations. Also, he had not been given the opportunity to examine the company’s administration. “If there are suspicions of malpractice, a proper investigation must be started,” the Court said.
The judge explained that the presumption of innocence also applies to labour law. The facts that B. is being prosecuted and that he has been held in pre-trial detention and will be tried in the criminal court are not circumstances that automatically entail that the employment contract can be dissolved.
However, based on excerpts from the case file, especially pertaining to the so-called “Intermar” issue, it emerged from several statements, including B.’s own, that he had permitted that WWR paid out $600,000 to parties with which the company was not doing business. Using third-party invoices, the amount ended up with Heyliger, or persons designated by him, the judge said.
The background of this was that M. did not pay the amount to Heyliger, who then made this B.’s and WWR’s problem. They felt compelled to solve this problem because otherwise the St. Maarten government and other (semi-governmental) parties would possibly no longer award projects to WWR.
“That would lead to unemployment of many WWR employees, which had to be prevented,” the judge stated, adding that B. had given permission to draft a fake invoice to WWR.
Culpable acts
The Court concluded that there were sufficient reasons to immediately terminate the labour agreement without any compensation, because B. had committed “seriously culpable” acts.
“This does not detract from the fact that other employees of the Janssen and de Jong Group, as B. rightly argues, were aware of this and did not intervene, or cooperated,” the judge stated in the verdict. Nor did the Court consider that this way of working is not unusual in St. Maarten, “where everyone knows each other, grants each other things, is depending on each other, and where corruption is rampant.”
The judge said that statutory director and employee B. had crossed the boundaries of what was permitted “by far.” The fact that within the Janssen de Jong Group there might be a culture in which acts like these were familiar and condoned does not change this.
The judge did not find that B. had been forced to comply with corruption. “An employee, certainly a statutory director, obviously has a duty to put an end to these wrongful acts, no matter how difficult that may be,” the judge said in stating that B. should have filed a report with the police or the Prosecutor’s Office. B. could also have resigned and applied for a job elsewhere, the judge said.
The criminal case against B. and four co-defendants in the Larimar case, including Heyliger and M., will be handled by the Court of First Instance during five days of hearings starting on Monday, March 9.
