6 KPSM and Saba Police Sue The Justice Ministry And WIN! Court Transcripts English St Maarten
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On January 15, 2025, the Civil Service Appeals Tribunal of Sint Maarten ruled in the case of six appellants, employed by the Sint Maarten, Saba and Sint Eustatius Police Force (KPSM). The appellants had appealed against a ruling of the Civil Service Court of February 5, 2024, in which their objection to the Minister of Justice’s fictitious refusal to decide on their promotion requests was declared inadmissible.
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The appellants, who have been classified in scale 7p for years, had requested the Minister in August 2023 to correct their legal position by promoting them to scale 8p, step 8, with retroactive effect to 1 January 2018. This request was based on the principle of equality and previous promotion rules. Because the Minister had not decided on these requests in time, the appellants objected to the fictitious refusal.
The Court had ruled that the appellants no longer had an interest in their objection, because the Minister had in the meantime decided on their requests. However, the Appeals Board ruled that the letters from the Minister of 2 January 2024, which the Court regarded as negative decisions on the promotion requests, in reality only related to the appellants’ requests for correction. As a result, no decision had yet been taken on the promotion requests.
The Council concluded that the Court had wrongly declared the appellants’ objection inadmissible. The Council instructed the Minister to expedite the Governor’s decision to issue a national decree on the appellants’ requests for promotion within two months. The Minister was also ordered to reimburse the appellants’ legal costs in the appeal, to an amount of NAf 1,400.
The ruling emphasises the importance of timely decisions by the government on requests from civil servants and confirms that appellants are entitled to an assessment of their promotion requests, regardless of the substantiation of these requests.
Original pronunciation
Content indication
Contrary to what the Court considered, no decision has yet been made on the promotion requests of the appellants. The letters received by the appellants relate to the correction requests submitted by them in connection with a placement offer under the new legal position decision. The Court wrongly ruled that the appellants no longer had an interest in the proceedings in the assessment of their objection to the fictitious refusals. The Governor must still decide on the promotion requests by means of a national decree. Because the Minister and not the Governor was a party in this case, the Council instructs the Minister to expedite the Governor to take a national decree on the promotion requests of the appellants within two months.
Pronunciation
Civil Servants Jurisdiction Regulation 1951 (RAr)
Date of judgment: January 15, 2025 Case number: SXM2024H00020
BOARD OF APPEAL
IN CIVIL SERVICE AFFAIRS
FROM SAINT MARTIN
pronunciation
on the appeal of:
[appellant 1]
[appellant 2],
[appellant 3],
[appellant 4],
[appellant 5],
[appellant 6],
all residing in Sint Maarten, appellants, authorized representative: DWO Francisca,
against the judgment of the Civil Service Court of Sint Maarten (Court) of 5 February 2024, SXM202301112- GAZ00014/2023 (appealed judgment), in the proceedings between:
appellants,
and
the Minister of Justice of Sint Maarten
respondent (hereinafter: the Minister), authorized representative: Mr. PAM Brandon, attorney.
Introduction
- In this judgment, the Council assesses the appeal of the appellants against the judgment of the General Court. The General Court declared the objection of the appellants against the lack of a decision by the Minister on their requests for promotion (fictitious refusal) inadmissible. According to the General Court, the appellants no longer had an interest in the assessment of their objection, because the Minister had in the meantime decided on their requests for promotion.
1.1. The Minister responded to the appeal with a counter-memorandum.
1.2. The parties have submitted additional documents.
1.3. The Council heard the case at the hearing of 29 November 2024 from the courthouse in Curacao. Appellant mentioned under 5 was present as well as the attorney of appellants. Appellants, mentioned under numbers 1 to and including 4, participated in the hearing via a video connection from the courthouse in Sint Maarten. Mr. CM Gibbs, office colleague of Mr. Brandon, was also present on behalf of the Minister.
Assessment by the Council
2.The Council shall assess the appeal on the basis of the grounds for appeal submitted by the appellants.
3.1. The Council finds that the appellants’ appeal is successful. Unlike the General Court, the Council finds that the appellants still had an interest in an assessment of their objection to the fictitious refusal.
3.2. The Council will then explain this judgment and the consequences thereof.
What is relevant to know in this case?
4.1. The appellants have all been working for the Sint Maarten, Saba and Sint Eustatius Police Force (KPSM) for many years. They have been classified in scale 7p for a long time. In March 2023, the appellants received a placement offer in connection with the entry into force of an amended legal position decree for the police in Sint Maarten. For the appellants, this offer essentially means that they will be classified unchanged in scale 7p. The appellants do not agree with this. The placement offer expressly states that a correction of the placement offer can be requested. However, this request cannot be regarded as an objection to the offer. The appellants all submitted correction requests in March 2023.
4.2. In addition, on 1 and 7 August 2023, the appellants each separately requested the Minister to rectify their legal position by promoting them to scale 8p, step 8 (promotion requests) with effect from 1 January 2018 or earlier. In doing so, the appellants invoke the principle of equality and the promotion rules in the Netherlands Antilles Police Force Legal Position Decree 2000, which no longer applies to the appellants.
4.3. Because a decision on the promotion requests was not forthcoming, the appellants lodged an objection with the Court on 13 October 2023 against the fictitious refusal.
4.4. The Minister requested appellants separately by letter dated 17 November 2023 to substantiate their request for promotion with documents. In their response of 3 December 2023, appellants stated that they did not have the requested documents.
4.5. On 2 January 2024, appellants, also each separately, received a letter. This letter was provided with their name, ID number and a signature. This letter stated that the correction request was rejected and the placement offer was maintained.
What did the Court rule?
- In the contested judgment, the General Court declared the appellants’ objection to the fictitious refusal inadmissible. According to the General Court, the appellants no longer had an interest in the assessment of their objection. In this regard, the General Court refers to the letters of 2 January 2024. The General Court regarded these letters as decisions rejecting the appellants’ requests for promotion. With the objection procedure, the appellants had achieved what they wanted to achieve, namely enforcing a decision on their requests for promotion.
What do the appellants argue in their appeal against the contested decision?
- Appellants argue that in the contested judgment the General Court wrongly classified the letters of 2 January 2024 as negative decisions on their promotion requests. The letters do not look like an official, authentic document and, according to appellants, they do not originate from the Minister. Moreover, the letters substantively refer to a rejection of the correction requests, made in response to the placement offer. According to appellants, a decision has therefore still not been made on their promotion requests. The General Court wrongly declared the objection inadmissible.
What is the Minister’s position on the appeal?
7.The Minister essentially takes the position that the Court was right to hold that the appellants’ objection to the fictitious refusal was inadmissible. As was also explained at the hearing, the letters of 2 January 2024 must be linked to the correction requests submitted by the appellants in March 2023. These correction requests related to the placement offer received by the appellants. The Minister further explained that he cannot decide on the promotion requests because the appellants submitted these requests in the context of the placement offer and did not substantiate them with further documents, as the Minister had requested them to do. Furthermore, the appellants did not grant the Minister a reasonable period to decide. The Minister requests the Council to confirm the contested judgment, with or without an improvement of the grounds.
What is the Council’s opinion?
8.1. The Council notes that the parties agree that the letters of 2 January 2024 contain a response to the correction requests submitted by the appellants in March 2023. These requests related to the offer made to them for placement under the new legal position decision. The Council sees no reason to judge otherwise. The text and content of the letters, which, moreover, lack the signature of the competent authority, clearly relate exclusively to the correction requests of the appellants.
8.2. This means that the appellants were right to argue that no decision had yet been made on their promotion requests and that the Court wrongly held that they no longer had an interest in the assessment of their objection to the fictitious refusal. Since no decision had yet been made on the promotion requests, the Council will not discuss the appellants’ arguments on the basis of which they believe they are eligible for promotion.
Conclusion
9.1. The conclusion is that the Court wrongly declared the objection to the fictitious refusals with regard to the promotion requests inadmissible. The appeal is successful. The Council will annul the contested judgment. The question then arises as to what this means for this dispute.
9.1.1. The obligation to decide on the promotion requests of appellants of 1 and 7 August 2023 remains in place. Even if appellants are unable to further substantiate their motivated request with documents, this does not release the competent authority from deciding on it. To that extent, the Council therefore does not follow the Minister’s position that the objection should be declared inadmissible on other grounds.
9.1.2. The appellants also requested the Council to instruct the Minister to decide on their promotion requests within four weeks of the date of this ruling, imposing a penalty. The Council considers in this regard that it follows from Article 13 of the National Ordinance on Substantive Civil Servants Law that a promotion is made by national decree. A national decree must be made by the Governor of Sint Maarten. Since the Governor was not a party to the proceedings in this case, the Council cannot, providing for itself, determine that the Governor will make a decision on the promotion requests within a reasonable period of two months of the date of this ruling. The Council therefore instructs the Minister to expedite the Governor to make a national decree on the appellants’ promotion requests within two months. If the appellants do not agree with this decision, they can appeal against it to the Court. In that procedure, unlike in this appeal, the appellants’ substantiation of their promotion request can be discussed.
- The Minister must reimburse the appellants’ legal costs in the appeal. The legal costs amount to NAf 1,400 (1 point for filing the notice of appeal and 1 point for appearing at the hearing, NAf 700 per point).
Decision
The Appeals Board: destroys the contested decision; explains the objection to the fictitious refusals grounded; wears the minister on to expedite the Governor’s decision to issue a national decree on the appellants’ requests for promotion within two months of the date of this ruling condemns the Minister of Justice to reimburse the appellants’ legal costs in the appeal up to an amount of Naf 1,400, to be attributed entirely to legal assistance provided by a third party.
Thus given by Mr. WH Bel, chairman, and Mrs. P. Klik and MA Evertsz, members, and pronounced in public on January 15, 2025 in the presence of the registrar.
