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1
TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
HCA: No.1571 of 2001
IN THE MATTER OF AN APPLICATION BY KISS BAKING
COMPANY LIMITED FOR LEAVE TO APPLY FOR
JUDICIAL REVIEW PURSUANT TO ORDER 53 OF THE
RULES OF THE SUPREME COURT, 1975 AND THE
JUDICIAL REVIEW ACT, 2000
AND
IN THE MATTER OF THE DECISION AND/OR ORDER OF
THE NATIONAL INSURANCE BOARD OF TRINIDAD AND
TOBAGO ESTABLISHED UNDER THE NATIONAL
INSURANCE ACT, CHAP. 32:01 (AS AMENDED) AND
CONTAINED IN ITS LETTER DATED MARCH 8, 2001
(WHICH WAS RECEIVED BY THE APPLICANT ON MARCH
12, 2001) THAT THE DISTRIBUTORS AND
LOADERS/HELPERS ARE EMPLOYEES OF KISS BAKING
COMPANY LIMITED AND THAT KISS BAKING COMPANY
LIMITED MUST REGISTER THE SAID DISTRIBUTORS
AND LOADERS/HELPERS AS EMPLOYEES WITH THE
NATIONAL INSURANCE BOARD OF TRINIDAD AND
TOBAGO AS PROVIDED FOR IN THE NATIONAL
INSURANCE ACT CHAP. 32:01
AND
IN THE MATTER OF AN APPLICATION UNDER S 16(3) OF
THE JUDICIAL REVIEW ACT, 2000 FOR A STATEMENT
OF THE REASON(S) OF THE NATIONAL INSURANCE
BOARD OF TRINIDAD AND TOBAGO FOR DECIDING
AND/OR CONCLUDING THAT THE DISTRIBUTORS AND
LOADERS/HELPERS ARE IN FACT EMPLOYEES OF KISS
BAKING COMPANY LIMITED
BETWEEN
KISS BAKING COMPANY LIMITED
APPLICANT
AND
THE NATIONAL INSURANCE
BOARD OF TRINIDAD AND TOBAGO
RESPONDENT
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BEFORE THE HONOURABLE MR. JUSTICE PETER RAJKUMAR
APPEARANCES:
Mr. Seenath Jairam S.C for the Applicant
Mr. Alvin Fitzpatrick S.C. and Mr. Rikki Harnanan for the Respondent
Judgment
The Applicant filed for judicial review of a purported decision of the National Insurance
Board of Trinidad and Tobago (NIB). It claims that that decision is contained in a letter dated
8th
March 2001 and received by the Applicant on 12th
March 2001.
THE LETTER
The Letter of 8th
March 2001 is set out hereunder. It is addressed to Marilyn Chin
Rampersad, Financial Comptroller of the Applicant and reads as follows:
“Having carefully perused the terms and conditions of the contractual
arrangements with your distributors and loaders/helpers, we are of the firm view
that the terms are inconsistent with the nature of an independent contractor.
Please be advised that no relevance is placed upon the title given to your
contractors. What the law requires one to do is to apply certain tests as laid down
in various cases to determine whether the persons are employees or independent
contractors.
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Having interviewed several persons employed as distributors and loaders/helpers,
the duties described are inconsistent with the terms of the contract. In such a case
the contract would be seen as varied by the parties.
In applying the said tests to the terms and conditions of the contract as varied, it is
clear that these distributors and loaders/helpers are in fact employees of your
company.
In these circumstances, your company will be required to register these employees
as provided for by the National Insurance Act, Ch. 32:01”.
Position of the Respondent
The Respondent contends that:
(1) The said decision of the NIB was in fact no decision at all in that it did not
affect the rights, status, property, liberty or obligations of the Applicant. In
those circumstances, the letter of 8th
March 2001 did not attract the
requirements of procedural fairness in that it did not even amount to a
decision.
(2) The Applicant had available to it alternative remedies and it did not avail
itself of the said alternative remedies.
ISSUES
Non-disclosure of alternative remedy
The issue of non-disclosure of the alleged alternative remedy was not pursued.
It ceased to be a live issue when Counsel for the Applicant indicated that he had raised
the question of alternative remedy under the NIB Act with the Judge before whom leave
was granted and this was accepted by Counsel for the Respondent
Further Issues
The remaining issues therefore are:
(1) Illegality
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(i) Whether the Respondent is in breach of the NIB Act in stopping and
interrogating the distributors and the loaders/helpers in the street
without the knowledge, consent or approval of the Applicant and in
particular whether it is in breach of Sections 32 and 33 of the NIB Act.
(2) Irrationality
(i) Whether any reasonable person or public body or authority acting in
exercise of a public duty or function and charged with the
responsibilities and duties of the NIB, and on the basis of the facts and
circumstances before it, could have made and/or could have come to
the said decision and/or could have so exercised its power to have
come to such a decision.
(ii) Whether such purported decision:
(a) was based on irrelevant considerations;
(b) failed to take into account relevant considerations.
(3) Procedural impropriety
(i) Whether the letter dated 8th
March 2001 contained a decision which
attracted the requirement of procedural fairness and in particular such
that the Applicant was entitled to be heard in relation thereto before
such purported decision was made.
(ii) Whether the Applicant was in fact provided a sufficient opportunity to
respond to the matters giving rise to that decision, in particular:
(a) whether the Applicant was treated as though it was similarly
circumstanced to Holiday Snacks and Bermudez without being
provided with the opportunity to be heard thereon;
(b) Whether the Respondent failed to inform the Applicant of the facts
and matters that it had derived from its interviews with the
loaders/helpers;
(c) Whether the Respondent had informed the Applicant prior to the
purported decision of 8th
March 2001 that it was investigating the
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status of the loaders/helpers in addition to the status of the
distributors;
(d) Whether the Respondent took into account irrelevant
considerations, namely, the position of Bermudez and Holiday
Snacks;
(e) Whether the Respondent provided to the Applicant sufficient
particulars of the matters that it was investigating in its meeting
with the Applicant on 7th
March 2001 so as to allow it the
opportunity to respond.
(4) Alternative remedies
(i) Whether the Applicant had an equally effective remedy under the NIB
Act.
(ii) If so, whether the Applicant should have exhausted its alternative
remedies.
(5) Bias
Whether any purported decision was vitiated by bias
DISPOSITION
For the reasons set out hereunder the application of the Applicant is dismissed with the Applicant
to pay the costs of the Respondent fit for senior and junior counsel.
Summary of Findings
In the circumstances, I conclude as follows:
(a) the letter embodies a decision.
(b) The decision making process required procedural fairness.
(c) the decision is not unlawful.
( d) the decision is not unreasonable.
(e ) the decision is not vitiated by procedural impropriety.
(f) there is no evidence of bias
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(g) there is no basis for alleging that the Respondent took into account
irrelevant considerations or failed to take into account relevant
considerations.
(h) The applicant had notice of the issue under investigation.
(i) The Applicant had the opportunity to make representations on the issue.
(j) The Applicant had equally effective alternative remedies which it should
have utilised.
(k) the respondent did not misdirect itself on the relevant legal principles.
ANALYSIS AND LAW
(1) Illegality
Whether Breach of Sections 32 and 33 of the National Insurance Act, Chap. 32:01, (“the
Act”)
Section 32 as amended by the National Insurance (Amendment) Act, No. 9 of 1999
and the National Insurance (Amendment) Act, No. 9 of 2004 provides as follows:
(1) “An authorized officer may at all reasonable times enter any premises or place
where any business is carried on or anything is done in connection with any business
or where there are any books, records or other documents relating to employed
persons or unpaid apprentices, and –
(a) examine such books, records and other documents or any other books,
records or documents relating thereto;
(b) search, if necessary with any assistance of any other person, any building,
receptacle or place for books, records, documents, papers or things which
may afford evidence as to the violation of any provision of this Act or the
Regulations;
(c) if, during the course of the examination, it appears to the authorized
officer that there has been a violation of this Act or the Regulations, seize
and take away any of the books, records or other documents relating to
employed persons or unpaid apprentices and retain them until they are
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produced in any proceedings; but where such books, records or other
documents are necessary for the continued operations of the business,
reasonable access thereto shall be allowed to the employer;
(d) require the employer or any person in the employment of that employer to
give him all reasonable assistance with, and to answer all questions
relating to, the examination;
(e) access any computer and associated apparatus used in connection with
the production, delivery or maintenance of records relating to the
records of employees, their remuneration and such other particulars as
may be relevant to the National Insurance System.
(2) Admission to any premises shall not be demanded except upon the warrant of a
Magistrate for the purpose, but if it is shown to the satisfaction of a Magistrate on
sworn information in writing –
(a) that admission to any premises has been refused, or that refusal is
apprehended, or that an application for admission would defeat the object
of the entry; and
(b) that there is reasonable ground for entry into the premises for any purpose
as is mentioned in subsection (1),
The Magistrate may by warrant under his hand authorize entry on the premises,
except that such a warrant shall not be issued unless the Magistrate is satisfied either
that notice of the intention to apply for a warrant has been given to the occupier, or
that the giving of such notice would defeat the object of the entry.
(3) An authorized officer entering any premises by virtue of this section may take
with him such other persons as may be necessary.
(4) Every warrant granted under this section shall continue in force until the purpose
for which the entry is required has been satisfied.
(5) Any person who threatens, hinders, molests or interferes with any person doing
anything that he is authorized by subsection (1) to do or prevents or attempts to
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prevent any person from doing any such thing, and any person who, unless he is
unable to do so, fails or refuses to do anything he is required by this section to do, is
liable on summary conviction to a fine of three thousand dollars and to imprisonment
for two years.
32A. (1) Any employee of the Board on being designated by the Executive
Director to so do may furnish or disclose any information pertaining to the National
Insurance Contribution records of any insured person under this Act to any
Governmental Department, Agency or Statutory Body.
(2) Every Director, Officer or other employee of the Board whose services are
utilized by the Board shall not communicate to any person not legally entitled thereto
any information relating to the affairs of any person having any dealing with the
Board or relating to the affairs of the Board or any information furnished by an
employer to the Board under any regulation made under this Act.
(3) Any person who acts in contravention of this section shall be liable upon summary
conviction to a fine of ten thousand dollars and to imprisonment for one year”.
Section 33 of the Act stipulates as follows:
“ Any person who in furnishing the particulars for any of the purposes of this
Act makes any statement which he knows to be misleading, false or deceptive, or
by any dishonest concealment of material facts, or by reckless making of any
statement (dishonestly or otherwise) misleads or attempts to mislead any other
person, is liable on summary conviction to a fine of three thousand dollars and
to imprisonment for two years”.
I find that Section 32 is inapplicable. It relates to the NIB’s powers of entry and powers
upon entry on to premises. If the NIB does not enter on the premises, then the Section
simply does not apply. Section 33 is equally inapplicable.
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(2) Irrationality/Unreasonableness
I find that the decision is not one that is so unreasonable that no reasonable authority
acting in exercise of its functions and charged with the responsibilities and duties of the
NIB, could have come to the said decision. In fact, in the case of National Insurance
Board v Bottlers St. Vincent Limited Civil Suit no.365 of 1998 the High Court of
St. Vincent acting in its appeal capacity under a statutory framework apparently similar to
that applicable to the NIB in Trinidad, in a similar situation came to the conclusion that
the drivers in that case were employees, even though they were inter alia allowed to hire
their helpers. In that case there was no issue of the helpers being employees of the
Defendant company. Based upon the fact that a court of law could come in a reasoned
decision to the opposite conclusion, whether it is right or wrong, this is material that
supports the conclusion that the decision that the Respondent in this case arrived at was
not unreasonable in the Wednesbury sense.
(i) Whether the NIB failed to take into account relevant considerations
There is no evidence that they did so, save that it was contended that they failed to
wait for the person in charge of the distributors to become available to supply
them with information before making the decision. It is common that they were
directing their mind to the issue of control as well as any other indicia in the
arrangements between Applicant which impacted on the issue and the Distributors
and (arguably) the leaders.
(ii) Whether the NIB took into account irrelevant considerations
Again, I find there is no evidence that they did so. I do not consider that
the reference to the situation of the other companies to be material in the
circumstances described.
(3) Procedural Impropriety
(i) Whether the letter of 8th
March 2001 reflects a decision so as to attract
the requirements of procedural fairness.
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Does the letter of 8th
March 2001 reflect a decision so as to attract the
requirements of procedural fairness
I am unable to accept the contention that the letter of 8th
March 2001 does not
amount to a decision. This assertion is made on the basis that no consequences
flow to the Applicant by virtue of a determination by the NIB that the distributors
were employees who were required to be registered and, as no consequences
flowed, this was a matter that did not affect the rights, status, property, obligations
or liberty of the Applicant.
Counsel for the Respondent contends that a further step would have to occur, namely, the
decision to initiate a prosecution, and that even that decision, whether to initiate a
prosecution, is not a reviewable decision. Therefore, the decision to consider the
distributors as employees of the Applicant being a preliminary to the decision to
prosecute itself should not be reviewable.
I find that while this has superficial logic to it, I cannot accept it as being accurate. I
reject this contention because the consequence of not registering the distributors, if they
are persons who are required to be registered is the exposure to criminal prosecution. I
consider that a decision to initiate a prosecution by the NIB is contingent upon the NIB’s
making a determination as to the status of the Applicant as being the employer of the
distributors. A Court cannot ignore the fact that a determination by the NIB that a person
is an employer would be strong prima facie evidence in a criminal prosecution that the
Applicant’s status is indeed that of an employer. It may well be that the Applicant can
raise the defence in such a prosecution that it is not the employer but that decision by
itself confers upon the applicant a status – that is the status of someone liable to
prosecution. This is so whether such prosecution is successful or not.
The Applicant would be legitimately entitled to consider addressing such a determination
by the other avenues open to it. Those avenues are:
(1) Appeal to the High Court under Section 62 the NIB Act and
(2) Application for judicial review (dependent, however, on whether it must first
exhaust its rights of appeal above.)
11
The question is whether or not the Applicant must exhaust its alternative remedies first
before it approaches the Court for a judicial review. I deal first however with the issue
of procedural impropriety having found that the letter does embody a decision which
requires procedural fairness to be applied.
PROCEDURAL IMPROPRIETY
Whether the Applicant was provided with a sufficient opportunity to respond to the
matters giving rise to the letter of 8th
March 2001.
It is necessary to address in some detail the affidavits to consider whether such an
opportunity was afforded. These are set out in the addendum to this judgment but
summarised as follows:-
The Applicant accepts there was the meeting of 7th
March 2001. It was also common
ground that-
(a) It was indicated to the Applicant of the meeting that the
purpose of the meeting was to investigate the relationship
between the Applicant and the Distributors.
(b) The Applicant knew:
(i) that the Respondent had obtained other
information from the Distributors and loaders
(ii) that the Respondent had reviewed the Distributors
contract and loaders
(iii) knew that the Respondent was focussing on the
degree of control exerted by the Applicant.
It is clear that the Applicant:
(a) had knowledge of the purpose of the meeting
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(b) had the opportunity in that meeting to make representations
and to rebut the assertion that the Applicant had a high
degree of control over the Distributor.
(c) had the opportunity in particular to assert to the matters
now raised in the affidavit in reply of Marilyn Chin
Rampersad
(d) had the opportunity to ask the Respondent anything it
wished on March 7th. There is no evidence that it sought
to do so and was refused an answer.
I need to consider whether it is relevant, if as contended by the Applicant, it had not been
told that the status of the loaders/helpers was under consideration. This is disputed
factually.
However if the Applicant were informed that the status of the distributors was under
review, then this logically means that the NIB was considering whether the distributors
were either (a) independent contractors or (b) employees. The Applicant is contending
that they were independent contractors. The NIB, however, was investigating whether
they were employees.
If the distributors were employees, then one obvious possibility was that the
loaders/helpers, being employees of the distributors, would also have been employees of
the Applicant. The other possibility was that they were not. As a matter of logic and
common sense, this would have been apparent to the Applicant even if the NIB did not
expressly state that the status of the loaders/helpers was linked to the status of the
distributors and under review.
Therefore, I find that it makes no difference to the Applicant’s right to a fair hearing even
if they had not been specifically told that the status of the loaders/helpers was under
review. This would be a matter that the Applicant should have known was impliedly
under consideration in any event. In fact if the Respondent considered the Distributors
to be employees, then it was foreseeable that the NIB would be considering the status of
13
the loaders as employees of the Applicant’s employees, and it was eminently foreseeable
that the NIB would be investigating whether the loaders were employees of the Applicant
in that scenario.
It would be unreasonable for the Applicant to have assumed that their status would not be
impacted by the Respondent ‘s classification of the Distributors.
(3) Alternative remedies
Section 62(1) of the Act states: “Appeals from decisions of the Board shall lie to
the Appeals Tribunal [established by section 60] on questions of fact only and to
the High Court on questions of law or partly of law and partly of fact and from
the High Court to the Court of Appeal”(emphasis added).
Section 62(2) of the Act empowers the President to make regulations
relating to appeals under section 62(1) to prescribe the procedures in
accordance with which appeals shall be heard and determined. To date
only regulations in respect of appeals to the Appeals Tribunal (on
questions of fact) have been made:
National Insurance (Appeals) Regulations, Chapter 32:01. Section 62(3)
states that “Provision shall be made by rules of court for regulating
appeals to the High Court and the Court of Appeal and for limiting the
time within which such appeals may be brought”.
Even if no such rules of court has been made the appellate jurisdiction
conferred on the High Court by section 62(1) can be exercised by the High
Court notwithstanding that regulations and rules of court had not been
made for that purpose: Peters v Attorney General (2001) 63 WIR 244, CA.
14
In any event Order 56 of the Rules of the Supreme Court, 1975 prescribes a
procedure for appeals which by or under any enactment lies to the High
Court from any tribunal or person.
In R v Epping and Harlow General Comrs, ex p Goldstraw [1983] 3 All ER
257 at 262. Donaldson MR said: “But it is a cardinal principle that, save in
the most exceptional circumstances, that jurisdiction will not be exercised
where other remedies were available and have not been used.”
In R v Birmingham City Council, ex p Fererro Ltd [1993] 1 All ER 530,
Taylor LJ, noted: “These are very strong dicta, both in this court and in the
House of Lords as cited, emphasising that where there is an alternative
remedy and especially where Parliament has provided a statutory
appeal procedure it is only exceptionally that judicial review should be
granted. It is therefore necessary, where the exception is invoked, to look
carefully at the suitability of the statutory appeal in the context of the
particular case”.
This common law position has been given statutory force in section 9 of
the Judicial Review Act, 2000, which states: “The Court shall not grant leave
to an applicant for judicial review of a decision where any other written law
provides an alternative procedure to question, review or appeal that decision, save
in exceptional circumstances”.
15
It was accepted by the respondent that in determining whether
exceptional circumstances exist, the court must have regard to the efficacy
of the appeal procedure as an exceptional circumstance.
Section 62 provides for an appeal to the High Court on questions of law or
partly of law and partly of fact.
It is contended that all of the grounds relied upon in this application in
respect of the decision purportedly challenged could be raised on appeal. I
accept this. In R v. Inland Revenue Commissioner ex parte Preston [1985] 2
All ER 327, 336 Lord Templeman noted that even where the appeal is limited
to appeals on points of law alone, “that the High Court can then correct all kinds
of errors of law including errors which might otherwise be the subject of judicial
review proceedings. So as in this case where the right of appeal is as against fact and
law, it should provide an appropriate alternative to judicial review proceedings”. A
jurisdiction to correct errors of both fact and law is obviously even wider and
therefore the appeal procedure under 5.62 must be accepted to be efficacious.
It was contended that any challenge to the decision after the time for
appealing has passed is an abuse of process.
1. By Order 56, rule 3(2) of the Rules of the Supreme Court, 1975 an
appeal should have been brought by the Applicant within 28 days of
being notified of the decision appealed against, namely 12 March,
2001. The Applicant applied for leave to apply for judicial review) (on
07 June, 2006,)
16
See para. 36.3.12(C), Fordham, Judical Review Handbook (4th edition),
referring to statement by Sir Thomas Bingham, MR in Judith Kay Sakala v
Secretary of State for the Home Department [1994] Imm AR 227, 231: “it does
seem to me to be an abuse of process in principle for [a claimant], having allowed a
time limit [for an appeal] to expire, then to seek to challenge by way of judicial review
that which should have been challenged by way of appeal”.
Whether the application can be salvaged.
I accept the respondent’s submission that the judicial review
application before the Court cannot be saved by treating it as an appeal
under section 62 of the Act.
Order 2, rule 1(3) of the Rules of the Supreme Court, 1975 provides
that “The Court shall not wholly set aside any proceedings or the writ or
other originating process by which they were begun on the grounds that the
proceedings were required by any of these Rules to be begun by an originating
process other than the one employed”.
An application for judicial review under Order 53 and an appeal
under Order 56 are both required by those respective Orders to be
brought by notice of originating motion. However Order 2, rule 1(3)
does not permit a cross-over or conversion from an existing
application for judicial review to a statutory appeal; it is limited to
enabling a particular type of application, for example a judicial review
application or a statutory appeal commenced by a wrong originating
process to continue as that process, for example the judicial review
17
application or statutory appeal intended to have been brought. This is
not the case here. The Applicant intended to and has made an
application for judicial review.
The provisions of section 12 of the Judicial Review Act, 2000 (“the JR
Act”), are not applicable. These confer upon the Court a discretion to
convert an existing judicial review application to proceedings not
governed by the JR Act where “the Court is of the opinion that an inferior
court, tribunal, public body or public authority against which or a person against
whom an application for judicial review is made is not subject to judicial review”.
This section merely codified the practice whereby the Court would allow
applications for judicial review to continue as if begun by writ if the case
pleaded in the judicial review application sounded in private and not
public law.
Even if conversion were possible under this section, I would not be
minded o allow conversion to an appeal under section 62 of the Act. This
would permit the Applicant to circumvent the time for appealing
prescribed by Order 56, rule 3(2) of the Rules of the Supreme Court, 1975.
Illegality part 2 – Error of law
I accept the Respondent’s submission on that issue. Error of law as a ground
of challenge in judicial review is described by Lord Scarman in R v Barnet
London Borough Council, ex p Nilish Shah [1983] 2 AC 309 at 341A-C
(quoted at para. 48.1.4(B), Fordham, Judicial Review Handbook (3rd ed.):
18
“Though the meaning of ordinary words is…a question of fact, the meaning to be
attributed to enacted words is a question of law, being a matter of statutory
interpretation. So in this case a question arises as to the meaning of ‘ordinarily
resident in the United Kingdom’, even though it arises…in the process of
determining a question of fact, namely whether the…student…has established the
fact of ordinary residence for the prescribed period…If a local authority gets the law
right, or, as lawyers would put it, directs itself correctly in law, the question of fact-
i.e. has the student established the prescribed residence?-is for the authority, not the
court, to decide. The merits of the application are for the local education authority
subject only to judicial review to ensure that the authority has proceeded according
to law”.
The Respondent was required to direct itself correctly in law as to the
meaning of the phrase “employed person” found in section 2(1)(a) and
section 30 of the Act. If it did so, the High Court on judicial review will not
interfere, unless it considers that decision of the Respondent on the facts
before it was irrational.
It is clear from the Respondent’s affidavit that it understood the relevant legal
principles and accordingly directed itself correctly in law. At paragraph 33 of
the Respondent’s affidavit the deponent states: “The question of control of the
employer over the employed person is but one criteria [sic] that is examined by the
Respondent in its assessment of the employment relationship”. At paragraph 38 she
states after particularising several aspects of the Drivers’ and
Loaders/Helpers’ work : “From these matters I concluded that the distributors and
loaders are under the control of the Applicant. There was a common intention that in
the management and control of the vehicles in all ways in which the driver used it for
the purpose of carrying the Appellant’s [sic] goods was subject to the command and
instructions of the Applicant. The chance of profit and risk was that of the Applicant
and not the drivers or helpers”.
19
It is also from the Applicant’s affidavits set out hereunder in the Addendum
hereto that the consideration/issue of control for example, was brought to the
Applicant’s attention in the meeting of March. The principles of law implicit
in these statements accord with the established principles of law applicable in
determining whether the relationship of master and servant exists, which
principles are stated in paras. 3-03 to 3-07, Clerk & Lindsell on Torts (16th ed.)
and in Ready Mixed Concrete (South East) Limited v. Minister of Pensions
and National Insurance [1968] 1 All ER 433, McKenna J. and succinctly
summarised at para. 3-07, page [203] of Clerk & Lindsell as follows:
“…’is the worker in business on his own account?’ If he is, he will not be an
employee. The factors to be taken into account in making this assessment, in addition
to that of control, include such matters as whether the man performing the services
provides his own equipment, whether he hires his own helpers, what degree of
financial risk he takes, what degree of responsibility for investment and management
he has, and whether and how far he has an opportunity of profiting from sound
management practices, but this list cannot be regarded as exhaustive.”
(5) Whether the purported decision was vitiated by bias
This argument was not seriously pursued and, in any event, I find that there is no
evidence of bias. A reference to the situation of Bermudez, whether during the meeting or
at its end, is not sufficient in my view to establish bias especially in the context of the
detailed nature of the investigation and the several factual matters that were being
considered by the Respondent.
Conclusion
In the circumstances, I conclude as follows:
a. .the letter embodies a decision.
b. The decision making process required
procedural fairness
c. the decision is not unlawful.
d. the decision is not unreasonable.
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e. the decision is not vitiated by procedural
impropriety
f. there is no evidence of bias
.
g. there is no basis for alleging that the
Respondent took into account irrelevant
considerations or failed to take into
account relevant considerations
h. The applicant had notice of the issue
under investigation
i. The Applicant had the opportunity to
make representations on the issue.
j. The Applicant had equally effective
alternative remedies which it should
have utilised
k. the respondent did not misdirect itself on
the relevant legal principles
Accordingly, I make the following orders:
(a) The Applicant’s Notice of Motion is dismissed.
(b) Costs to be paid by the Applicant to the Respondent fit for Senior and
Junior Counsel.
I am indebted to Counsel for their assistance, researches, and written submissions.
Dated the 16th
day of June 2008.
Peter Rajkumar
21
ADDENDUM
The reliefs sought
The Applicant seeks:
1. An order of certiorari to move into the High Court and to quash the decision
or order of the NIB made by letter of 8th
March 2001, namely, that the NIB
(i) is of the firm view that the contractual arrangements with the
Distributors and Loaders/Helpers are inconsistent with the nature
of an independent contractor;
(ii) “Having interviewed several persons employed as distributors and
loaders/helpers, (concluded) the duties described are inconsistent
with the terms of the contract” and in such a case, the contract
would be seen as varied by the parties;
(iii) in applying “certain tests” to the terms and conditions of the
contract as varied, it is clear to the NIB that these Distributors and
Loaders/Helpers are in fact employees of the Applicant; and
(iv) is of the view that the Applicant is required to register these
employees as provided for by the Act.
2. A Declaration that the Respondent in making the purported decision acted in a
manner so as to deprive the Applicant of the right to a fair hearing.
3. A Declaration that the Respondent’s decision was in excess of the NIB’s
jurisdiction under the Act and/or they acted without jurisdiction.
4. A Declaration that the decision was an abuse of process and/or irrational,
unreasonable and/or null and void and of no effect.
It is also alleged that
5. An order of mandamus directing or requiring the NIB to reconsider the
decision and invite the Applicant to make a presentation on its behalf.
6. An order of prohibition to prohibit the NIB from taking any action or steps
pursuant to the said decision against the Applicant.
22
7. An order that the NIB do produce to the Applicant a statement of its reasons
for the said decision contained in its letter of 8th
March 2001 that the
distributors and the loaders/helpers are the employees of the Applicant.
8. A stay.
Grounds
It is alleged that the said decision:
(1) (a) Was illegal and/or contrary to law and/or unfair; and/or
(b) in breach of the principles of natural justice or fairness.
(2) Is irrational and/or unreasonable, irregular and/or an improper exercise of the
discretion of the NIB and/or (b) based upon irrelevant considerations.
(3) Also failed to take into account relevant considerations by the NIB.
(4) Is procedurally improper, in breach of the rules of natural justice, and in breach
of the Applicant’s legitimate expectation that it was entitled to be heard,
informed of the investigation conducted by the NIB and given reasons for the
said decision of the NIB.
It is also alleged that:
(5) The NIB failed to satisfy and observe the conditions or procedure required by
law and is in breach of its statutory duty.
(6) The Applicant was unfairly or unequally treated by the NIB and deprived of
legitimate expectation to be treated fairly and/or equally and/or without
discrimination and/or bias.
(7) The decision of the NIB was made in breach of or omission to perform its duty
in accordance with Sections 32 and 33 of the NIB Act in that officers of the
NIB, without the permission or authorisation of the Applicant, stopped and
interrogated the distributors and loaders/helpers on the streets without the
knowledge, consent or approval of the Applicant.
(8) No reasonable person or public body or authority acting in exercise of a public
duty or function and charged with the responsibilities and duties of the NIB, and
on the basis of the facts and circumstances before it, could have made and/or
23
could have come to the said decision and/or could have so exercised its power
to have come to such a decision.
The Affidavits:
The affidavits
Affidavits were filed on behalf of the Applicant by:
• Wayne Yip Choy sworn on 7th
June 2001;
• Marilyn Chin Rampersad on sworn 7th
June 2001; and
• Peter McCartney sworn on 7th
June 2001;
together with (supplemental) affidavits of:
• Marilyn Chin Rampersad sworn 11th
June 2001and
• Peter McCartney sworn on 11th
June 2001.
The Respondent filed an affidavit by
• Emrice Henry sworn on August 4th
2003
the Applicant filed an affidavit by
Marilyn Chin Rampersad on April 6th
2006 in response
The following are extracts from the affidavit of Mr. Wayne Yip Choy sworn 7th
June
2001:
Para 5: “ The Company has one (1) baking plant located at Lange Park, Chaguanas,
where it produces and packages the products for selling and distribution. After being
packaged, the products are transported from the said plant in trucks which are owned by
the Company and sold to the various wholesalers, retailers, customers and/or consumers.
Since 1978 the Company has contracted with persons to supply services (hereinafter
referred as “the Distributors” to transport and sell the products to their various
customers. The said contracts were, prior to 1996, made orally between the Company
and the Distributors. Since 1996, the Company has only entered into one (1) year written
contracts with the Distributors. These written contracts incorporate all of the terms and
conditions that previously comprised the said oral contract plus various other provisions.
24
A true copy of one of the said written contracts is now produced and shown to me and
hereto annexed marked “W.Y.C.1”. All the contracts used in any given year are
identically worded, save for the dates, the names, addresses of the Distributors and other
such personal details.”
Para 6: “ Under both the said oral and/or written contracts the Distributors had the right
and power to employ persons as Loaders/Helpers (hereinafter referred to as “the
Helpers”). The Helpers also were employed by the Distributors under oral contracts of
employment until January, 2001 when the parties (i.e. the Distributors and Helpers)
began using written contracts. The basic duties of a Helper comprise packing, stacking
and loading and offloading, transporting and delivering the products to and from the
trucks respectively. A true copy of one of the said written contracts is now produced and
shown to me and hereto annexed marked “W.Y.C.2”. Again, all these contracts are
identically worded save for personal details applicable to each Distributor and each
Helper.”
Para 7: “ It has always been the Company’s policy to treat the Distributors as
independent contractors and not as employees of the Company. Furthermore, the Helpers
have always been the employees not of the Company, but of the Distributors and as such
the Helpers have never been paid directly or indirectly by the Company nor does the
Company keep any records, accounting or otherwise, pertaining to the payment of
salaries and/or wages from the Distributors to them. In fact, at no time did the Company
ever pay the Helper any form of remuneration, salary or wage.”
Para 8: “ In or about the last quarter of the year 2000 it came to the attention of the
Company that the Distributors may have been in breach of their contractual obligation
under clause (g) of exhibit W.Y.C.1, by their failure to register as employees with the NIB
and deduct national insurance contributions from the respective Helpers’ earnings and
pay same to the NIB. In order to encourage the Distributors to regularise their status as
employers with the NIB, the Company held discussions with Mr. Ralph Knights of
Knights & Company Chartered Accountants, who was recommended to the Company by
one of the Company’s legal consultants Mr. Andre Jessamy, Attorney-at-Law. During the
25
course of the said discussions, Mr. Knights asked the Company to facilitate a meeting
with the Distributors to obtain approval for the exercise. Mr. Knights subsequently
submitted a fee quotation to the Company on behalf of the Distributors, by letter dated
December 21, 2000. A true copy of the letter dated 21st December, 2000 from the said
Ralph Knights & Company to the Company is now produced and shown to me and hereto
annexed marked “W.Y.C. 3”.
Para 9: “ On 16th
and 18th
January, 2001 Mr. Knights and Peter McCartney, the
Company’s Sales and Distribution Manager, met with the Distributors who discussed and
approved, the contents of the proposal submitted by Mr. Knights in the letter dated
December 21, 2000. Mr. McCartney informed that at the meeting he reminded the
Distributors of their contractual obligations under clauses (g) and (h) of exhibit
“W.Y.C.1” and the need to have their position regularised with the NIB. MR. Knights
was retained by the Distributors to undertake the task of organising the necessary
documentation and obtaining the relevant information for submission to the NIB.”
Para 10: “ On or about February 19, 2001 I was informed by Peter McCartney and verily
believe that Mr. Knights had interviewed all of the Distributors, completed the required
application forms for employer’s status for some of the Distributors and had submitted a
certified cheque for $17,381.16 to the NIB’s, St. James office on behalf of the
Distributors. I am also informed by Peter McCartney that on February 13, 2001 Mr.
Knights telephoned and requested that a copy of the contract exhibited herein as W.Y.C.1
be sent to a Mr. Alexander of the NIB. Thereafter the said copy of the contract W.Y.C.1
was sent to him by way of facsimile transmission on February 15, 2001. Furthermore, the
said facsimile transmission of the said contract indicated the name of Kiss Baking
Company Limited as one of the parties to the contract.”
Para 11: “ On March 7, 2001 I was informed by Mrs. Marilyn Chin-Rampersad, the
Company’s Finance Manager that at approximately 10:06 a.m. two (2) Compliance
Supervisors of the NIB, namely, Miss Emrice Henry and Mr. Patrick Mc Conney
(hereinafter referred to as “the Supervisors”) visited the premises and requested a
meeting with me. Furthermore, upon being informed of my absence from the premises,
26
they requested to meet with Mrs. Chin-Rampersad who together with the Company’s
Accountant, Mrs. Yvette Creed, eventually met them in the office of the former.”
Paragraph 12: “ I am further informed by Mrs. Chin-Rampersad, and verily believe, that
during the meeting the Supervisors informed her that the purpose of their visit was to
investigate the relationship between the Company and the Distributors. The Supervisors,
she said, informed her that the NIB was in receipt of applications for employer status that
were made by some of the Distributors. Mrs. Chin-Rampersad and Mrs. Creed were
then informed by Ms. Henry that the NIB had reviewed the Distributors’ contracts,
done a lot of “back ground work” into the matter, interviewed the Distributors on
the streets and had concluded that the Distributors were employees of the Company
since the latter controlled all aspects of their operations and that they had to be
registered with the NIB as employees of the Company. Ms. Henry then requested to
see the pay records of the Distributors in order to obtain the date the Distributors
commenced their employment with the Company and the accumulated amounts paid by
the Company to the individual Distributors and any deductions made therefrom. Mrs.
Chin-Rampersad said that she informed the Supervisors that any information on the
Distributors had to come from Mr. Mc Cartney who was due to report for work on March
8, 2001 since he was not required to report for work on a Wednesday. She also stated
that she tried unsuccessfully to contact Mr. Mc Cartney by way of his cellular phone.
Mrs. Chin-Rampersad said that she then informed the Supervisors that she did not have
any pay records for the Distributors because they were not employees of the Company
and as such she would not have pay records for them. The Supervisors then indicated that
they would either return on that date or send someone on their behalf to obtain the
necessary information and documentation”.
Paragraph 13: “ At no time prior to March 7, 2001 was the Company informed that it was
under investigations by the NIB with respect to the Distributors or that officials from the
NIB would be visiting its compound for the purposes of conducting investigations.
Moreover, no formal or any other request was made at anytime by or on behalf of the
NIB directly to the Company for any information pertaining to the Distributors prior to
27
March 7, 2001. To date the NIB has never requested any representation from the
Company with respect to the Distributors”.
Para 14: “ I am informed by Mrs. Chin-Rampersad that the only records that she had
kept pertaining to the Distributors were weekly commission statements. A sample of the
statement was given to the Supervisors whereupon the Supervisors compared the names
on the said statements with the names on some of the application forms in their
possession. They then requested and were provided with copies of the said statements for
the Distributors which covered the period September, 1998 to January, 2001. A true copy
of a sample of the said weekly commission statement is now produced and shown to me
and hereto annexed marked “W.Y.C.4”.
Para 15: “ During the course of their discussion Mrs. Chin Rampersad indicated that Ms.
Henry requested and was provided with a list of the Board of Directors of the Company.
Mrs. Chin Rampersad stated that upon viewing the said list Ms. Henry noted the
appearance of Mr. Robert Bermudez’s name on the said list and stated that she did not
understand why the Company was “going this route” since Mr. Bernudez knew the
Distributors were employees of the Company having regard to the previous experiences
of Bermudez Biscuit Company Limited and Holiday Snacks Ltd. with the NIB. The
Company, Bermudez Biscuit Company Limited and Holiday Snacks Ltd. are some of the
companies comprising the Bermudez Group of Companies”.
Para 16: “It is apparent that the Supervisors and the NIB had prematurely concluded that
the position of the Company in relation to the Distributors was identical to that of
Bermudez Biscuits Company Limited and Holiday Snacks Limited without further
investigation into the facts peculiar to the Company. Mrs. Chin-Rampersad informed me
that Ms. Henry went as far as to accuse the Company of attempting to hide its
relationship with the Distributors by making the initial payment to the NIB by way of
certified cheque so as to conceal the fact that the Company was making the payment.
Indeed as indicated to the Supervisors by Mrs. Chin-Rampersad the NIB required that all
payments be made by certified cheques, save and except upon application to and
approval for dispensation from the NIB. Mr. Mc Conney thereafter conceded that the
28
said statement by Mrs. Chin-Rampersad was an accurate representation of the NIB’s
policy”.
Para 17: “I was informed by Mrs Chin-Rampersad that on 12th March, 2001 a Mr.
Ferguson, an officer from the Chaguanas office of the NIB, visited the premises and
delivered a letter addressed to her from the NIB dated 8th
March, 2001. The said letter
from the NIB stated, inter alia, that the NIB:-
(a) is of the firm view that the contractual arrangements with the Distributors and
Loaders/Helpers are inconsistent with the nature of an independent
contractor;
(b) “having interviewed several persons employed as Distributors and
Loaders./Helpers, the duties described are inconsistent with the terms of the
contract” and in such a case, the contract would be seen as having been
varied by the parties;
(c) in applying “certain tests” to the terms and conditions of the contract as
varied, it is clear to the NIB that these Distributors and Loaders/Helpers are
in fact employees of the Applicant; and
(d) is of the view that the Applicant is required to register these employees as
provided for by the Act.
A true copy of the said letter is now produced and shown to me and hereto annexed
marked “W.Y.C.5”.
Para 18: “At no time prior to March 12 ,2001 was the Company requested by or on
behalf of the NIB to furnish any documentation or information or told that it was
under investigation by the NIB with respect to the Helpers. More importantly, I am
informed by Mrs. Chin-Rampersad and Mrs. Creed and verily believe that at no time
during their discussions with the Supervisors was any mention or reference made to the
fact that the NIB considered and adjudicated that the Helpers were the employees of the
Company and not of the Distribuotrs. The investigations conducted at the premises
related solely to the Distributors. Indeed the Company has never directly or
indirectly employed the Helpers. The NIB has never attempted at anytime after March
29
12,2001, to speak to me or any other senior officer of the Company with respect to any
issue relating to the Helpers. It simply forwarded the said letter to the Company stating
its decision”.
Para 20: “ I was informed by Mr. Mc Cartney and verily believe that he spoke to Mr.
Ferguson who indicated that he had instructions to collect the files and records for both
the Distributors and the Helpers. Mr. Mc Cartney said that he told Mr. Ferguson that the
Company did not have records for the Helpers because they were not employed and
contracted by the Company. Upon the request of Mr. Ferguson, Mr. Mc Cartney gave
him all of the contracts between the Company and the Distributors within the possession
of the Company”.
Para 21: “Sometime on or about 19th
March, 2001 Mrs. Chin-Rampersad informed me
and I verily believe that the NIB will not be accepting payment for remittance for the
Helpers on behalf of the Distributors because the matter was being dealt with by the
NIB’s Compliance Department”.
Set out herein are extracts from the Affidavit of Ms. Emrice Henry sworn 4th
August
2003:
Paragraph 30: “ As a result of those interviews I discovered that the drivers/distributors
were given goods by the Applicant on a daily basis to transport and sell on behalf of the
Applicant. They were assigned to specific routes by the Applicant. It was further
established that each driver was confined to his specific route by the Applicant. Each
driver is required to pay to his assistant, the loader/helper, a portion of the monies
collected from the Applicant after deductions for gas, van rental and insurance are made.
A percentage of the monies collected is allocated to the driver/distributor who together
with the loader/helper is then paid on a weekly basis. The percentage which is paid over
to the driver is determined by the Applicant. The drivers are allowed only to sell the
Applicant’s goods. As a result of this method of payment the level of wages to both the
dirver and loader fluctuated weekly. They also disclosed to me that they cannot use their
vehicles for any other purposes save for the sale of the Applicant’s product.
30
Paragraph 32: “ I did not merely request a meeting as suggested in paragraph 11 of the
Yip Choy affidavit but indicated to them at the outset and brought to their attention that
the purpose of this meeting was to investigate the unusual mass registration of their
distributors/drivers and loaders/helpers as employers and employees respectively and
their contractual relationship with the Applicant to determine whether or not they ought
to be treated as employers or as persons employed with the Applicant. I also explained
that my interviews with some of the distributors and loaders revealed that the Applicant
had a great degree of control over their operations and that I would like to discuss this.
Paragraph 33: “I made no conclusion as alleged in paragraph 12 of the Yip Choy
affidavit prior to our meeting. I did indicate that the purpose of the meeting was to
investigate the level of control the Applicant had on the operations of the driver and
loader to determine whether those persons ought to be registered as employed persons of
the Applicant and not employers. The question of control of the employer over the
employed person is but one criteria that is examined by the Respondent in its assessment
of the employment relationship. My assessment was based on an overall consideration of
the nature of the employment of these persons with the Applicant which included not only
a consideration of the contracts shown to us in the meeting but also the economic
realities of the relationship.
Paragraph 34: “The meeting was very cordial, frank and open as was all our previous
meetings with the Applicant disclosed above. I indicated to Mrs Chin-Rampersad that I
had the Applicant’s “N1 forms” for registration of the drivers/distributors as employers
and requested a copy of the contracts of employment between the Applicant and these
applicants.
Paragraph 35: “A blank copy of the contract which I had seen before was again provided
and I then requested a duly executed copy. In response they gave us their entire file of
contracts with the distributors over a period. We compared those with the “N1 forms” in
our possession. I also requested the payslips for these persons both the distributor/driver
and helper/loader and they brought it to us for our inspection. The wages for both
individuals were contained on one pay slip. We asked them to explain each item on these
31
pay slips. I then told them that after viewing these payslips and hearing their explanation
it can be considered by us as the persons’ salary. They responded by saying “well that is
the money which the persons walk away with”. True copies of the pay slips for the
drivers/distributors and loader/helpers are now produced and shown to me and hereto
annexed as a bundle and marked “E.H.7”.
Paragraph 36: “ They explained the entire slip to us and what each component meant.
They revealed the helpers/loaders wage under the column of “wages” and the
distributors/drivers salary under the column of “distributors commission”. In fact it was
discovered that a “yard wage” was paid to the drivers/ distributors for merely showing
up for work even though they were not despatched to drive to distribute the Applicant’s
product for that day.
Paragraph 37: “They provided us with more records of the drivers and loaders. They
explained that the loaders will be paid from the amount of sales generated by the
distributors and they are all paid by the Applicant at the end of the week.
Paragraph 38: “ At that interview we were told by Mrs Chin-Rampersad and Mrs. Creed
and verily believe the following:
(a)that the distributors arrive to work at the Applicant’s premises in the morning and
are handed the keys to the Applicant’s van by servants of the Applicant. The van is then
loaded with the assistance of the loaders with the mornings bread and cakes produced by
the Applicant. The size of the load is determined by the Applicant based on the route and
the amount of points of sales approved by the Applicant for sale. The distributors are
assigned their routes by the Applicant. This is determined by the Applicant after
conducting surveys and determining where to send their vans. If someone opens a
business place the Applicant will send persons to determine whether sales should be
made there. A determination of where the Applicant’s product is sold is not made by the
drivers.
(b)The van then leaves the compound for the day to sell the Applicant’s product and it
is brought back to the Applicant in the evening or night. The sales book filled out by the
distributors is the property of the Applicant. A true copy of the samples of the invoices
32
made by the drivers on the Applicant’s behalf is now produced and shown to me as a
bundle and hereto annexed and marked “E.H.8”.
(c)The Applicant determines how much product is to be left at points of sales, the
Company lays down its policy with regard to the drop off and the return of bread and
cakes. They follow the Applicant’s guidelines for the giving of credit. The money that is
obtained and the goods that are returned are checked by the Applicant and verified
before the Applicant pays the distributors. Where there is a shortfall between the daily
sales and the amount of product returned this is deducted from the distributors. The
distributors do not pay for the loaders as all deductions are made from source that is the
sales of the product.
(d)These drivers do not pay to maintain these vehicles this is deducted from the actual
sales. If a vehicle malfunctions the Applicant provides another vehicle and a mechanic to
repair the said vehicle.
From these matters I concluded that the distributors and loaders are under the control of
the Applicant. There was a common intention that in the management and control of the
vehicles in all ways in which the driver used it for the purpose of carrying the Appellant’s
goods was subject to the command and instructions of the Applicant. The chance of profit
and risk was that of the Applicant and not the drivers nor helpers.
Paragraph 39: “At the end of the interview Mrs Chin-Rampersad confirmed that the
matters that I had discovered as deposed to in paragraph 12 above were also in fact true
and I indicated to Mrs Chin-Rampersad that the drivers/distributor and loaders/helpers
were employees of the applicant for National Insurance purposes and that we will use the
pay slips to calculate the Applicant’s indebtedness to the Respondent. I then requested
that she provide all the wages records. I was told by Mrs Chin-Rampersad that only
records for 2 – 3 years were at the Applicant’s compound and that the rest were in the
Applicant’s archives.
Paragraph 40: “ The available records were given to us and it was promised that the rest
of the records would be available by the following week. Those records were
subsequently collected by the Respondent at the Applicant’s business place the following
week.
33
Paragraph 41: “We left our names and telephone contacts with Mrs Chin-Rampersad in
the event that they wanted any further information from us or hold further discussions.
She asked me to send my decision which was communicated to her at the meeting in
writing, which we did and is exhibited as “W.Y.C.5”. Usually employers would call us if
they are dissatisfied with our decisions and we continue dialogue with them until the
matter is resolved. This did not happen in this case.
Paragraph 44: “ The allegations made in paragraph 18 of the Yip Choy affidavit are not
true. We did inform the Applicant as to the reason why the documentation was required
and every chance was afforded to them to explain or offer their views on the matter of
their relationship with the persons applying for registration and their alleged employees
as well as their liability to the Respondent for national insurance contributions. They
were fully aware of the importance of the meeting having regard to the manner in which
the past audits were conducted”.
The Applicant seeks to put forward what it says is the true position at paragraph 24 of the
affidavit of Marilyn Chin-Rampersad, sworn on April 6th
2006 in reply to that of Emrice
Henry. However, the Applicant does not contend that those matters set out therein were
matters that were communicated to the NIB. Rather, it implies that these are matters that
it would have communicated to the NIB if it had known that the NIB were in fact
considering the issues set out in the affidavit of Ms. Henry. Those matters are set out
herein as follows:
(Extracted from the Affidavit of Mrs. Chin-Rampersad sworn on April 6th
2006)
Paragraph 24 I deny too that I or Mrs. Creed gave any of the details attributed to us
in paragraph 38. That paragraph does not accurately reflect the operations of the
Distributors as they relate to the Applicant. The following is an accurate description
of how the Distributors operate in relation to the Applicant:
34
i. Each Distributor is assigned exclusivity to a specific route and would make his
own determination as to which customers he will initiate a sale. The exclusive
route redounds to the benefit of the Distributor since it reduces the potential for
duplicity and increases the efficiency of the Distributor’s efforts, resulting in
maximized area coverage and sales. It allows the Distributor to concentrate on
his sales without competitors encroaching on his area.
ii. On a daily basis, the Distributor places his order with the Applicant. The
quantities are determined by the Distributor based upon his forecasted sales on
his exclusively assigned route.
iii. The product as ordered by the Distributor is loaded onto the vehicle. It is the
responsibility of the Applicant that the product as ordered by the Distributor is
loaded onto the vehicle both for security reasons and good business practice.
The Distributor is also responsible to ensure that the product loaded is what he
ordered.
iv. The sales book clearly states that the products are sold by a
“Distributor/contractor”.
v. The Distributor solely determines the quantity of product left at each point of
sale.
vi. It is the responsibility of the Distributor that no expired product is left on the
shelf or is sold by the retailer.
vii. Distributors pay for the use of a working vehicle. In the event of a malfunction,
a replacement vehicle is provided since we are obligated to provide a working
vehicle”.
Further, Ms. Chin-Rampersad disputed matters set out in the affidavit of Henry inter alia:
35
Paragraph 19 “Paragraph 35 of the Henry affidavit is misleading in that it gives the
distinct impression that the Applicant’s duly executed contracts with Distributors were
given to Ms. Henry at the meeting on 7th
March 2001 and that she was able to compare
them with the N.I. registration forms which she had with her at the time. They were not.
They were given to the Respondent’s servant or agent, Mr. Ferguson, on March 12th
2001, after the Respondent’s letter of 8th
March 2001 in which it officially recorded and
communicated to the Applicant its decision that the Distributors and Loaders/Helpers
were employees of the Applicant.
Paragraph 20. “In further answer to paragraph 35, I say that at the said meeting Ms.
Henry did request the pay records/slips for the Distributors. In response I told her that
there were no pay slips for the Distributors because they were not employees of the
Applicant but what I did have were weekly commission statements for the Distributors. I
gave samples of them to her and Mr. McConney who used them to compare the names on
them with those appearing on the N.I.1. Application forms. These statements reflect the
accounting for sales of product consigned to the Distributor, commissions due to the
Distributor, and in some cases, payments made by the Distributor for case accounting
purposes only. The statement attributed to me and or to Mrs. Creed by Ms. Henry,
namely, “well that is the money which the persons walks away with” is a complete
fabrication by Ms. Henry.
Paragraph 21 “With respect to paragraph 36, neither Mrs. Creed nor I ever gave to Ms.
Henry and Mr. McConney any of the details or explanation of the statements described
therein. Rather I informed them that any information on the Distributors (including an
explanation of the Distributors’ statements) had to come from Mr. Mc Cartney who was
due to report to work on March 8th 2001. The Respondent never contacted the Applicant
for any explanation about the commission statements.
Paragraph 22 “In further answer to paragraph 36, I deny categorically that the
Applicant ever paid “yard wages” to Distributors or that Mrs. Creed or I ever told Ms.
Henry or Mr. McConney so. In fact “yard wages” were paid by the Applicant to
prospective Distributors on trial whilst assessment of their driving skill and other
36
qualities were made for suitability as contractors, and ceased to be paid to a Distributor
once the Applicant had contracted with him for his services. This trial/assessment period
is implemented in the interest of public safety and in accordance with the Applicant’s
exercise of due diligence as a responsible corporate citizen.
Paragraph 23 “In answer to paragraph 37 I deny that Mrs. Creed or I ever provided any
records for the Loader or Helpers. As stated before these were never the topic of
discussion at the said meeting. Further I categorically deny Mrs. Creed or I ever saying
that “the Loaders will be paid from the amount of gross sales generated by the
Distributors and they are all paid by the Applicant at the end of the week.” In fact, the
Loaders/Helpers are not, and have never been paid by the Applicant.
Paragraph 28 “Paragraph 42 of the Henry affidavit is fabrication on the part of Ms.
Henry. Her comments with respect to Mr. Robert Bermudez and the Respondent’s
decision in the case of the Bermudez Biscuit Company were made during the course of
discussions in the meeting as a result of my providing her with a list of directors of the
Applicant which she requested at the start of the meeting and which was given to her
during the meeting. They were not made, as she asserts, at the end of the meeting, and
certainly not after she had communicated her conclusions to Mrs. Creed and me.
Paragraph 30 “Paragraph 44 of the Henry affidavit is false. The Applicant had no
notice whatsoever of the visit by the Respondent’s officers on 7th March 2001. The
decision of the Respondent’s officers as communicated to us at the end of the meeting
was followed by the Respondent’s letter dated 8th March 2001 but received by the
Applicant on 12th March 2001. This letter makes no reference to the meeting on 7th
March 2001. In fact, according to the letter, the decision of the National Insurance
Board was based solely upon the interviews purportedly done with Distributors and
Loaders/Helpers together with perusal of the terms and conditions of the contractual
arrangements. At no time were discussions held or interviews conducted between Ms.
Emrice Henry or Patrick McConney and Wayne Yip Choy, Peter McCartney, Marilyn
Chin-Rampersad and Yvette Creed in connection with the contractual terms and
conditions between the Applicant and the Loaders/Helpers or the day to day operations
37
of the Distributors and Loader/Helpers, and the Respondent only saw the Distributors’
contracts on 12th
March 2001, 4 days after the letter was written outlining the
Respondent’s decision. Moreover, prior to 12th
March 2001 when the Applicant received
the letter, the Respondent had never raised the status of the Loader/Helpers as an in issue
with the Applicant”.
Dated the 16h of June 2008.
Peter A. Rajkumar
Judge
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