[1] Siobahn Nicola Gillespie [2] Citco BVI Ltd Claimants v The Minister of Natural Resources and Labour Defendant

JurisdictionBritish Virgin Islands
JudgeEllis, J.
Judgment Date19 April 2013
Neutral CitationVG 2013 HC 11,[2013] ECSC J0419-6
CourtHigh Court (British Virgin Islands)
Docket NumberCLAIM NO. BVIHMT2013/0003
Date19 April 2013
[2013] ECSC J0419-6

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. BVIHMT2013/0003

Between:
[1] Siobahn Nicola Gillespie
[2] Citco BVI Limited
Claimants
and
The Minister of Natural Resources and Labour
Defendant
Appearances:

Mr. Syed Hussain QC and Mr. Robert Nader for the Claimants

Mrs. Jo Ann Williams-Roberts, Ms. Vareen Vanterpool, Mrs. Khadia Edwards-Allister and Ms. Maya Barry and for the Defendant

Ellis, J.
1

By Fixed Date Claim Form filed on the 14 th February 2013, the Claimants seek the following relief:

  • (i) An order of certiorari to quash the Respondent's refusal of 30 th November 2012 to extend the First Claimant's work permit.

  • (ii) An order for costs and such further and other relief as the Court deems just.

2

In summary, the Claimants contend that the decision of 30 th November 2012 was flawed because of (a) a flagrant want of natural justice and (b) a failure to provide proper and adequate reasons.

3

The Application is supported by (1) the second affidavit of Siobahn Nicola Gillespie sworn on 14 th February 2013; (2) the third affidavit of Siobahn Nicola Gillespie sworn on 12 th March 2012; and (3) the second affidavit of Glenroy Forbes sworn on 12 th March 2012.

4

The Defendant's evidence in response is contained in (1) the first affidavit of the Honourable Kedrick Pickering sworn on 8 th March 2013; (2) the first affidavit of Ronald Smith-Berkeley sworn on 8 th March, 2013.

5

This application follows a protracted history between the parties which is critical to the determination of the matters in issue. For that reason, the background is set out below:

BACKGROUND
6

The Second Claimant is the local office of a substantial international trust company that employs some 40 persons in the British Virgin Islands. The First Claimant is the managing director of the Second Claimant and has lived and worked in the Territory since July 2006.

7

The First Claimant has been employed in the Territory on the basis of a work permit since July 2006. The First Claimant's work permit was consistently renewed from that date through to July 2012.

8

On 18 th June 2012, the Claimant's submitted an application for renewal for the First Claimant's work permit which was due to expire on 27 th July 2012.

9

On 12 July 2012 the Second Claimant was notified that the First Claimant's work permit was being processed. The Defendant contends that this information was communicated via telephone by an officer with the Labour Department who acted without authorization.

10

The position was later clarified on 16 th July 2012, when the Acting Labour Commissioner sent a letter to the Second Claimant in the following terms:

" Re: Work Permit Renewal — Siobahn N. Gillespie

We regrettably wish to inform you that the application submitted for a work permit renewal on behalf of Ms. Gillespie for the position of General Managing Director has been denied. Section 171 (2) of the labour Code states, "the Minister shall in approving any work permit, have the discretion to impose any conditions he or she may consider appropriate to promote the national policy underlying the Code in section 2, the work permit policy, the employment of Virgin Islanders and Belongers and any manpower development plan of the Virgin Islands." Please be guided accordingly."

11

On 17 th and 18 th July 2012, lawyers acting for the Claimants met with the Defendant and other ministry officials to discuss the refusal. At that meeting it became apparent that in arriving at the decision, the Honourable Minister had considered a number of complaints that had been made against the Defendants. The identities of the complainants were not disclosed.

12

The Defendant contends that at the meeting of 17 th July 2012 he reiterated that his decision regarding the First Claimant's work permit renewal was final and would not be reconsidered. The Defendant further contends that at this meeting, Counsel for the Claimant sought extension of the First Claimant's work permit for a period of six (6) months to enable the Second Claimant to recruit and fill the position of General Managing Director. This request was granted.

13

On 18 July 2012, the Second Claimant responded to the Labour Department's letter of 16 th July 2012 expressing surprise at the decision to refuse the First Claimant's work permit and requesting (1) information as to exactly what has been said and by whom, (2) the opportunity to respond to any such complaints and (3) the opportunity to meet with the Minister to discuss any concerns he may have.

14

The letter also noted that the effect of the non-renewal was that the First Defendant would have 10 working days to depart the Territory, leaving the Second Claimant with no immediate replacement. The Second Claimant further requested an interim six month extension of the First Claimant's work permit to allow for further discussions and "…if (however it should eventuate) Ms Gillespie then were to leave the BVI, Citco would have an opportunity to recruit and seek regulatory approval for a suitable replacement."

15

On 19 th and 23 July 2012, the Claimants attorneys again met with officials from the Ministry. The Claimants contend that it was at that the meeting of 23 rd July that the nature of the complaints were conveyed orally and in general terms. These included:

  • 1. Racial and prejudicial sentiments against locals in the context of:

    • i. Hiring practices for locals vs. expatriate

    • ii. Travel opportunities

    • iii. Blacks and locals in senior management/ advancement

    • iv. Harassment and victimization

    • v. Locals terminations vs. expatriate given verbal warning for same/ similar offences

  • 2. High degree of micromanagement within the work environment

  • 3. Reporting to management when going to the restroom

  • 4. Shouting at staff

  • 5. Invading staff personal space

  • 6. Concerns of sick leave policies

  • 7. Number of employees (at least 38) who were fired or forced to leave employment during Ms Gillespie's watch.

16

By letter dated 26 July 2012, the Acting Labour Commissioner informed the Defendant that the First Claimant's work permit had been extended for further six month extension. In this letter the Claimant was also advised that the Minister would " provide a more detailed response upon his return to the Territory".

17

On 27 th July, 2012 the Second Claimant submitted a copy of its grievance procedure to the Ministry and sought a meeting to " discuss any improvements you think that could be made."

18

On 22 nd August, 2012, attorneys for the Claimants in a detailed letter to the Permanent Secretary in the Ministry indicated inter alia that the Claimants denied such allegations as had been made against them. Although in this correspondence the Claimants lamented the fact that relevant particulars had not been communicated to them they reiterated a willingness to improve their operating procedures.

19

Attached to this letter was a documents headed " RESPONSE TO EMPLOYEE COMPLAINTS — JULY 2012". This document purported to provide the Claimants' written response to the concerns which had been identified at the meetings between the parties. Throughout this document, the Claimants requested information on issues that had been raised that would adversely affect the further renewal of the First Claimant's work permit and noted in particular that they were prejudiced or otherwise unable to properly respond to the concerns.

20

On 8 November 2012 the Second Claimant wrote to the Defendant, updating him as to the implementation of the new grievance procedures.

21

On 30 th November 2012, the Permanent Secretary wrote to the Claimant's attorney in the following terms:

"The Acting Labour Commissioner wrote to Citco BVI on July 16 th 2012, informing the organisation that the application submitted for work permit renewal on behalf of Ms Siobahn Gillespie was denied. On 26 th July 2012 the Acting Labour Commissioner wrote to Citco BVI agreeing to the extension of Ms Gillespie's work permit for a interim period of six (6) months.

By way of letter dated July 18 th 2012 BVI Limited requested this interim six month period " to allow these discussions to take place and, if (however it should eventuate) Ms Gillespie then were to leave the BVI, Citco would have an opportunity to recruit and seek regulatory approval for a suitable replacement."

I now hereby formally inform you that after further and extensive consideration of this matter the position regarding the [First Claimant's] work permit has not changed. It is therefore hoped that the period requested was sufficient to recruit a suitable replacement and to secure the necessary regulatory approval. The Ministry…stand ready to assist [the Second Claimant] in any way possible to ensure a relatively seamless transition."

22

On 11 th December 2012, the Claimants' attorneys wrote to the Ministry expressing disappointment with the decision and in particular with the fact that the Fist Claimant was given no opportunity to answer whatever allegations had been made. That letter also sought a renewal until the end of July 2013 to facilitate the recruitment of a replacement and an orderly transition.

23

On 14 th December 2012 the Ministry, by email indicated that it was prepared to grant to the First Claimant an additional month on her work permit to expire on 31 st January 2013. This appears to have been an error as that work permit, if extended by one month would expire on 26 February 2013.

24

The parties continued to communicate by email. However, in email correspondence on 8 th January 2013, the Permanent Secretary indicated that the all further correspondence was to be directed to the Attorney General's Chambers.

25

On 9 th January 2012, the Claimant filed an application for leave to apply for judicial review of the Defendant's decision of 30 th November 2012.

THE CLAIMANTS' CASE
26

The Claimants contend...

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