Philipsburg; The Ombudsman recently concluded a Systemic Investigation regarding the Dismissal Advisory Committee (DAC), initiated as result of a complaint filed by a lawyer on behalf of GEBE N.V. The investigation focused on the functioning of the DAC and the decision-making procedure followed by the Secretary General (SG) of the Ministry of Public Health, Social Development and Labor (VSA) on petitions filed for dismissal.
Considering a possible increase of petitions for dismissal to be filed by employers as a result of the effects of the hurricanes in September 2017 on business on Sint Maarten, the importance of the DAC in the decision-making process of the SG and the functioning of these entities had the full attention of the Ombudsman.
The Ombudsman concluded in the Preliminary Findings Report (PFR) that:
- There are sufficient and adequate rules and regulations for the operation of the DAC in place. However, the formal implementation by publication of the Rules of Order and policy (“Richtlijnen”) governing the advice procedure has not yet been executed, nor are they properly followed or visible in the advice of the DAC.
- The decision-making process of the SG regarding a request to dismiss an employee is considered not to be transparent, efficient and adequate to provide a properly motivated decision on a petition submitted by an employer, more so when taken independently. A proper link between the advice of the DAC and motivation of the decision taken by the SG remains obscure.
- Proper application of the appendices listed in the National Decree regarding procedures (for) termination (of) employment, is required.
Based on the abovementioned, the Ombudsman has made the following recommendations to government:
- Install the new DAC members as soon as possible by Decree as stipulated in article 3 National Ordinance Termination of Labor Agreements and provide the Ombudsman with a copy of said Decree.
- Possibly revise appendix V, VI, VII VIII with a designated area to indicate the criteria for dismissal and (thorough and sound) reasoning for the conclusion in order to offer a transparent and motivated advice/decision.
- Include practical execution of the Laws, Regulation and Policy in the training program to be held for the DAC members and the staff of the Labor Department.
- In addition to a rotating system for the DAC members, establish a policy that prevents current (and past) employees of an employer requesting to terminate a labor agreement from participating in the pertinent deliberations.
Some Recommendations Complied With
It should be noted that the Minister has duly followed-up, and informed the Ombudsman by letter dated 18 September 2018 that the Ministry agrees with the conclusions of the Ombudsman and will follow the recommendations presented. Some of the recommendations have already been complied with, namely the installation of a new DAC.
The Final Report was submitted on 24 September, 2018 to government, as well as Parliament considering the nature and importance of the investigation for the public.
The Ombudsman has requested a status report within six (6) months from the date of the report on the results of the measures taken by the Ministry of VSA to enhance compliance with the law, propriety and good governance in dealing with petitions for dismissal of employees.
The Final Report is available for download via the website: www.ombudsman.sx, under the ‘Articles and Presentations’ tab.