PHILIPSBURG–The Ombudsman will launch an investigation regarding the composition of the Dismissal Advisory Committee, the application of the law to prevent bias and the use of the advices to render properly motivated decisions by the Secretary-General of the Ministry of Public Health, Social Development and Labour VSA. Due to its present focus on post-hurricane relief and recovery measures, however, the complaint will not be handled by the Ombudsman until January 2018.
The case was filed by attorney Jelmer Snow of BZSE law office following a Court ruling of September 27 in favour of utilities company GEBE in a case filed by one of its workers against her dismissal after she reached the pensionable age on October 18, 2016.
The Secretary-General, in reference to the advice of the Dismissal Advisory Committee (Ontslagcommissie), declined on March 23 to give permission for dismissal.
Based on two High Court rulings, the Court of First Instance arrived at the conclusion that reaching the pensionable age was a valid reason to terminate or dissolve the labour agreement and did not constitute an infringement of the ban on unequal treatment based on age.
GEBE stated during the Court hearing that also in St. Maarten the termination of labour contracts when reaching the pensionable age is common practice and has broad support.
Attorney Snow, on behalf of GEBE, filed an official complaint with the Ombudsman on October 2 against the Secretary-General’s decision of March 23 to deny GEBE’s request to terminate the labour agreement with its employee.
Snow pointed out in the complaint that the Dismissal Advisory Committee at the time of rendering its advice consisted of two former employees and one current employee of GEBE.
“As if this is not unbalanced enough, there is evidence that the members of this Dismissal Advisory Committee were highly critical of GEBE during the meeting held and referred repeatedly to (negative) personal experiences with GEBE in the past and clearly showed a high level of being biased,” the lawyer contended.
He argued that employees or former employees of the employer requesting permission to lay off an employee should not be allowed to take part in the process as members of the Dismissal Advisory Committee. He concluded by saying the decision of the Secretary-General should also at all times be sufficiently motivated.
“You claim that employees or former employees of the employer requesting permission to lay off one of its employees should not be allowed to take part in this process as members of the Dismissal Advisory Committee, as such is biased and leads to unbalanced and biased decisions,” the Ombudsman stated in giving a summary in acknowledgment of receipt of the complaint.
The Ombudsman said an investigation will be initiated considering the “general interest” of the complaint. However, considering that the island has been plummeted into a state of emergency after the onslaught of the recent hurricanes, “transparency and fairness in the application of relief and recovery measures for the public are of the utmost importance.
“As such, the focus of investigations by the Ombudsman are presently centred around monitoring fast, effective and efficient distribution of relief and recovery material and services to the public by Government agencies,” a legal advisor at the Ombudsman Bureau wrote in a letter to Snow of October 6.
Therefore, the Ombudsman “resolved” to suspend a “systemic” investigation of the complaint until January 2018, it was stated.
In response, attorney Snow expressed his “gratefulness” for the fact that his complaint will be dealt with by the Ombudsman. He said he understood that transparency and fairness in the application of relief and recovery measures for the public are “of the utmost importance,” but “I was not aware that there were so many official complaints filed in that category to keep the Ombudsman this busy.”
He said it was his belief that the core of his client’s complaint is also of very high importance “in times like this, especially in taking into consideration the many anticipated requests by employers for (mass) layoffs in the coming months, in which process the Dismissal Advisory Board plays a vital role.”
Therefore, the lawyer “kindly, but urgently” requested the Ombudsman to start the investigation process without any further delay.