Dismissed employees and UFA take SMTS, Connecting Waves to court

June 16, 2012 10:02 AM

PHILIPSBURG - Twelve employees of St. Maarten Tender Services NV (SMTS) and their union United Federation of the Windward Antilles UFA have filed an injunction against SMTS and Connecting Waves NV, seeking to dissolve dismissal agreements that were entered into by the former legal representative of UFA, the employees and the two companies.

UFA and the employees are claiming that the former legal representative of UFA went above and beyond his power-of-attorney authority when he agreed to and signed dismissal agreements with compensation for the employees that falls below what they believe they are justified in receiving. The dismissal agreements went into effect on May 15. It should be noted that the employees also signed.
 
In defence, attorney representing the two companies Cor Merx is arguing that the employees were fully aware of the terms of the dismissal agreements and their claims should not be admissible in an injunction hearing, but rather in a preliminary procedure.
 
That notwithstanding, Merx believes that UFA and the employees should be taking to court their former legal representative who negotiated the agreements and to whom they gave power of attorney, not the two companies.
 
Both SMTS owned by Bobby Velasquez and Connecting Waves NV owned by Etienne and Abdul Meyers have licences from the Harbour Group of Companies to execute water-tendering services. According to Merx, SMTS took a financial hit when Connecting Waves started operations in 2009, forcing Velasquez to enter into an agreement whereby his competition would take over management of his company.
 
Merx said that from that moment, some employees wanted their employment agreement with SMTS dissolved, as Connecting Waves had no collective labour agreement (CLA) with UFA. Merx stressed that Connecting Waves had not "taken over" SMTS and, as such, had not assumed responsibility for the CLA.
 
While negotiations and discussions over termination started in February 2012, when Connecting Waves took over management, with employees submitting labour cases requesting dismissal, the legal representative of UFA sat with Merx on May 12 and negotiated the total amount of monies that would be available for the workers, which would also serve as an out-of-court-settlement.
 
This agreement was taken to the employees, who refused to sign until adjustments were made. These adjustments were made and taken back to the employees on May 14, when they signed the agreement.
 
Merx explained that in his opinion, the leaders of the union had advised the employees to submit unrealistically high payout claims and when their legal representative had realised that the employees would not receive what they were requesting, he had proceeded to compromise and negotiate a more moderate amount with the two companies.
 
This amount apparently is not acceptable to the employees and UFA, who are now claiming that the dismissal agreement signed by the former legal representative of UFA is not legal and the employer must take them back to work and continue paying them.
 
According to Merx, the employees and UFA do not deny that they had given their former legal representative the relevant power of attorney, but they claim he did not have the authority to complete the negotiation of the dismissal agreements the way he did.
 
Merx said the legal representative of the employees had met with the employees and UFA on numerous occasions and they had signed his extensive power of attorney. "Now they claim they don't know what they signed," Merx said. He added that, instead of taking their former legal representative to court, the employees were flipping the situation and claiming that the employer with whom they have a CLA should have realised that the negotiated deal was not a good one.
 
The former legal representative was paid US $70,833 for his efforts, it was explained.
 
Attorney for UFA and the employees Wim van Sambeek of HBN Law contends that when Connecting Waves took over management in February 2012, the principals of this company wanted nothing to do with the CLA and refused to speak to the union. He added that Velasquez had directed the union to Connecting Waves. Van Sambeek noted that it then had become clear that "everyone would end up on the street" and Connecting Waves would only take on a few employees on a temporary basis.
 
Van Sambeek believes that as UFA and SMTS have a legal relationship through their CLA, SMTS is in breach of its statutory duty and had no redundancy plan in place. Also, under statutory rules, collective termination also should be assessed on the basis of the rules of collective dismissal and that under the law or the provisions of the applicable collective agreement, the union should not be left out of the game when it comes to an end.
 
He also questions whether the employees can be bound to an agreement negotiated by their now former legal representative.
 
He said the employer had required the signature of the union on the dismissal agreements, even though the employees had signed the agreements. He argues that although this is a sign of consent of an employee on the termination of his employment, the confidence of the employer is only justified if there is a subsequent, focused, clear and unambiguous statement of the employee.
 
He said the employer, taking all the facts together, should not have trusted that an adequate proxy had been given to the former legal representative of UFA and the employees.
 
The judge will rule on June 26.

(The Daily Herald)

The companies SMTS and Connecting Waves NV were represented in this case by mr. Cor Merx, the founder and attorney at law of Cor Merx Legal Services on Sint Maarten. UFA and the employees were represented by Wim van Sambeek of HBN Law Sint Maarten.