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.)

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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

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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.

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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”.

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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

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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.):

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“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”.

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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

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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