Published On: Sun, Jan 1st, 2023

Temmer wins lawsuit against GEBE

PHILIPSBURG — The Court in First Instance has ordered utilities company GEBE to pay its former temporary manager Merrill Temmer his monthly salary of more than 15,000 guilders ($8,380) starting from November 7, 2022.

The court ruling, dated December 29, 2022, deals a firm blow to the company and to its lone shareholder, Country St. Maarten with regards to the cyber attack by Blackbyte on March 7, 2021.

“The statement that (only) Temmer is liable for the cyber attack and its negative effects, denies the responsibility of managers, members of the supervisory board and the large number of temporary managers that have led GEBE during the past couple of years, not to mention the habitual political interference by GEBE’s only shareholder: Country St. Maarten,” the ruling states. “The statement also denies the responsibility of all those who are currently in a position to battle the consequences of the cyber attack. They are responsible for the cumbersome recuperation of GEBE’s ICT-organization. Because of that, the negative effects of the cyber-attack are still noticeable.”

Temmer started working at GEBE in 2013 as ICT-manager. On December 2, 2021, he was appointed as the company’s temporary manager. This appointment was based on an agreement to provide services. His employment contract was suspended. The contract contained a provision that guaranteed Temmer could return to his function as ICT-manager, or a similar function, upon the expiration or termination of the service contract.

On March 17, 2021, a Blackbyte cyber attack hit GEBE. The hack encrypted GEBE’s complete client database, its financial data and other company information. Blackbyte demanded around one million dollars to give GEBE access to its data again.

On May 18, 2022, GEBE signed a service agreement with Temmer whereby he was appointed as Chief Operating Officer. This contract also contained a guarantee that Temmer could return to the company as an employee in case the service agreement ended.

Between June 1 and September 2 of that year Temmer was unable to work. On August 22 his appointment as Chief Operating Officer became effective.

A bit more than two weeks later, on September 8, the supervisory board announced in a letter its intention to suspend Temmer. Four days later the board confirmed the suspension.

On November 7, Temmer’s attorney Lucas Berman wrote to GEBE that his client resigned from his directors-position. The letter referred to the return-guarantee and stated that Temmer would be available for work per November 8.

GEBE ignored Temmer’s attempted to get back to work and it stopped paying his salary in November.

GEBE’s attorney Zylena Bary wrote on December 2 to Berman that Temmer was in default because of his resignation with immediate effect, that there is no (labor) contract between the parties and that GEBE has lost its confidence in Temmer’s functioning.

Temmer asked the court to order GEBE to pay his salary or to grant financial damages to the tune of almost $1.2 million.

The court ruled that the service contracts for temporary manager and chief operating officer did not terminate Temmer’s dormant labor contract and that he could invoke the guarantee to return to his previous function with or without an existing labor contract.

GEBE contested this right by stating that Temmer had violated the rules when he terminated the service contract for chief operating manager. The court was not buying that argument, calling it an opportunistic point of view because the company had aimed to terminate Temmer’s work as chief operating officer by first suspending him and then firing him per November 7, 2022.

GEBE also argued that it had made a mistake by including the return-guarantee in the contracts because it had been unaware of Temmer’s failures as ICT-manager. The court dismissed this argument and ruled that the plaintiff is within his rights to invoke the guarantee to return as an employee.

The court sentenced GEBE to pay Temmer’s monthly salary from November forward with a 10 percent penalty in case it fails to pay on time. The payments have to continue until there is a different ruling in a regular court procedure. GEBE also has to pay the costs of the procedure, around 9,240 guilders ($5,162).


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