Brian Mingo (left) arriving at the courthouse with his lawyer Jairo Bloem on Monday afternoon.
PHILIPSBURG–Dismissed Princess Juliana International Airport (PJIA) operating company PJIAE chief executive officer (CEO) Brian Mingo was ultimately let go by PJIA holding company PJIAH for political reasons, his lawyer argued during Monday’s emergency hearing in the Court of First Instance.
Mingo took PJIAH to court on Monday over the controversial dismissal in early April, seeking the judge to declare his firing null and void, and allow him to resume his duties at the helm of PJIAE.
Mingo’s lawyer Jairo Bloem argued that Mingo’s dismissal was unlawful and orchestrated by a set of unnamed political figures who operate in the background to control PJIA’s affairs.
Path to dismissal
Bloem argued that the issues between Mingo and PJIAH began in December 2020. PJIAH’s lawyer Peggy Ann Brandon argued the opposite, telling the Court that the issues started from as early as 2019 (See related story).
PJIAH sent Mingo a letter on December 3, 2020, which requested him to tender his resignation immediately and leave the post by January 4, 2021, citing a growing lack of confidence in Mingo’s leadership and delays in the reconstruction project. The letter warned Mingo that failure to leave voluntarily would result in the company pursuing legal termination.
According to Bloem, PJIAH leaked the letter to the media the following day to destroy Mingo’s reputation and pressure him to step down. “Although [my client – Ed.] here says PJIAH, he [really] means those behind the scenes who manage the PJIAH or the persons appointed as directors therein,” said Bloem.
Bloem said his client responded to PJIAH’s concerns in a letter on December 8, 2020. PJIAH never responded to this letter.
PJIAH informed PJIAE on January 8, that an extraordinary shareholders meeting would be convened on January 14, saying Mingo would be able to substantiate his position in this meeting.
For unknown reasons, PJIAH cancelled the January 14 meeting, said Bloem.
However, on January 20, PJIAH requested PJIAE’s supervisory board to hand over documents about payments that Mingo received during his tenure, and to do so within 48 hours.
On May 24, 2019, the former PJIAE supervisory board approved a resolution for Mingo to receive an extra monthly stipend of NAf. 4,000 for performing the function of chief financial officer (CFO) in addition to his tasks as CEO. PJIAE had no CFO at the time.
The allowance was backdated to January 7, 2019, or the day when Mingo started working for PJIAE.
PJIAH said it did not approve this stipend, and Brandon argued that this was one of the financial irregularities that made the holding company lose faith in Mingo (See related story).
PJIAE’s supervisory board told PJIAH that 48 hours was too short a timeframe to comply with the request. PJIAH repeated its request in a letter on January 27, but this time demanded the supporting documents to be submitted within 24 hours.
“PJIAH set unreasonable deadlines with unnecessary aggression and unnecessarily offensive language,” said Bloem.
On January 28, Mingo told PJIAH about the legal basis for the stipends he received. Bloem said his client followed up this conversation with a letter on February 3.
Things were silent for a little more than a month until PJIAH informed PJIAE on March 12, about its intention to convene an extraordinary shareholders meeting on or before March 29. Among the agenda points was one entitled, “Hearing Brian Mingo”.
Mingo asked PJIAH on March 15 to clarify this agenda point, and PJIAH responded the next day that “no further explanation was needed,” according to Bloem.
Mingo doubled down on March 18, again requesting PJIAH to clarify the agenda point. “Unfortunately, PJIAH never responded to these letters and thus simply failed to clarify certain agenda items,” said Bloem.
An extraordinary general shareholders meeting was held on April 7, after which Mingo was sent a letter outlining the conditions of his firing. After observing a two-month notice period, he would be legally terminated on June 6.
However, the company also placed him on so-called “non-active” status with immediate effect, which meant he could no longer sign cheques or represent PJIAE in any way.
Bloem argued that the firing was unlawful for several reasons.
According to Article 8 of PJIAE’s articles of incorporation, PJIAH can summarily dismiss a managing director in a shareholders meeting, but only if the director has been given an opportunity to defend themselves beforehand.
However, Mingo’s dismissal or suspension was not on the meeting’s agenda and was not included on the agenda afterwards. Additionally, the meeting’s minutes shows that there was no discussion about dismissal, said Bloem.
In explaining the discrepancy in the minutes, Brandon implied that the minutes had been manipulated by PJIAE. “The dismissal decision would not correspond with the minutes of the meeting, which had been submitted in draft form and drawn up by the secretary of Mingo’s managing board,” she said.
“As a director, my client has therefore not been heard about the intention to dismiss or suspend. The same also applies to PJIAE’s supervisory board, which is always entitled to cast an advisory vote,” said Bloem. “During the meeting, the director must be able to tell the shareholders what he thinks of the intended dismissal. The shareholders will have to consider the director’s arguments in their final decision. A decision taken in violation of these rules must be dismissed.”
Brandon argued that Mingo had been heard beforehand, citing his December 8, 2020, letter as evidence. She also argued that Mingo intentionally made it impossible to be heard (See related story).
PJIAH also failed in its obligation to give Mingo a “reasonable” period to prepare for a dismissal hearing.
“Due to the unclear setting of the agenda and the stubborn refusal to provide further explanation when requested, PJIAH wrongly and unnecessarily hindered adequate preparation by my client,” said Bloem.
Bloem told the Court that PJIAH’s claims about Mingo’s poor performance could not be true.
Firstly, Mingo’s performance had been evaluated by Curaçao-based human resources (HR) consultancy firm Coach Caribbean, which gave him a score of 90 per cent, or much higher than the 50 per cent minimum performance score stipulated in his contract, Bloem said.
Bloem argued that PJIAH never responded to Coach Caribbean’s evaluation report, or to other reports from PJIAE’s supervisory board about Mingo’s proper functioning. Additionally, PJIAH never set clear, time-bound targets for Mingo to achieve.
“PJIAH fails to put forward plausible, genuine reasons that require the termination of the contract with my client. In fact, the PJIAH avoided any substantive discussion about the reconstruction’s progress,” said Bloem.
If Mingo was not underperforming, then his dismissal had to be politically motivated, Bloem argued.
“Certain parliamentary faction leaders and/or political parties ardently wanted financing [for PJIA’s reconstruction] to be obtained from specific companies and/or countries, while PJIAE’s supervisory board and, therefore my client as the CEO, got much better financing conditions from a consortium consisting of the World Bank and the European Investment Bank…
“Politicians or former politicians have not only systematically thrown the good name and reputation of my client in the garbage, but PJIAE’s employees have also been incited to take massive action against the company and, specifically, against my client,” said Bloem.
Brandon argued that there is no evidence to suggest political interference, adding that there are multiple non-politically affiliated entities at odds with Mingo.
Bloem considered it proven that Mingo’s dismissal was unlawful, and thus demanded his client be reinstated to his position pending a full decision in a substantive hearing (in Dutch, “bodemprocedure”). In the event of non-compliance, Bloem ordered the court to impose a daily penalty of US $25,000, up to a maximum of $1 million.
Bloem also argued that the interests of Mingo and the airport are the same, characterising the dismissal as against the objective well-being of the terminal reconstruction project.
PJIAE’s supervisory board and Royal Schiphol Group-nominated member of PJIAH’s supervisory board James Fazio are opposed to the dismissal, said Bloem, adding that both the World Bank and Royal Schiphol Group have raised concerns about corporate governance at the airport.
Corporate governance concerns may result in the reconstruction funding being pulled, which would lead to more delays, argued Bloem.
“My client is a relatively young, educated St. Maartener who terminated a permanent contract [with TelEm] for a five-year contract in which, in short, he would be charged with the airport’s reconstruction.
“This is a commitment he took to heart, and in the performance of his duties he was not guided…by the wishes of well-known (former) political authorities. On the other hand, the company’s interests were always put first and can be seen in the reconstruction loan with the World Bank and European Investment Bank, instead of an unknown consortium of financial institutions advocated for by certain political leaders…
“The airport’s interests are further served by completion of reconstruction before all kinds of other possible projects, such a fuel farm, pre-clearance facility, and a hotel near the airport. Here too my client systematically stood firm, supported by the Royal Schiphol Group,” said Bloem.
He argued that Mingo deserves the opportunity to finish the work he was contracted to do, especially considering his positive evaluations and public ridicule.
“It is because of my client’s absolute refusal to dance to the tune of the rank-and-file that he was dismissed from his board position without further ado,” said Bloem.
If the Court rules that Mingo cannot resume his duties, Bloem requested the court to order PJIAH to pay his client compensation until the day the contract is legally terminated.
The judge will render a verdict in this case today, Wednesday.