A long ordeal of getting a work permit for an employee of AndroGroup Ltd. ended recently when the Immigration Appeals Tribunal ordered the granting of a work permit for Allister Hayes.
The decision was a costly victory for AndroGroup, said its Chief Executive Alan Roffey.
‘I am very glad that the IAT eventually found in favour of my company,’ he said. ‘Unfortunately, it has cost my company in the order of CI$100,000 to defend itself and Mr. Hayes against untruthful statements made to the Work Permit Board.’
A permit application was first submitted by AndroGroup Ltd. with respect to Mr. Hayes on 28 July 2005. At the time, Mr. Hayes was working under a temporary permit that expired on 1 August 2005.
The Legislative Assembly had just passed on 27 July 2005 an amendment to the Immigration Law that allowed people on temporary permits to remain working while an application for a full permit to work for the same company was being considered.
However, the Immigration Department believed the application for Mr. Hayes was submitted by AndroGroup Elevator Ltd., and not AndroGroup Ltd. As a result, criminal charges for working without a permit were brought against Mr. Hayes, AndroGroup Elevators and Mr. Roffey.
The charges against Mr. Roffey and AndroGroup Elevators were withdrawn, and the charges of overstaying against Mr. Hayes were eventually dismissed. The charge against Mr. Hayes for working without a permit was also dismissed, partially because Work Permit Board Chairman David Ritch testified that full work permit had been, in his opinion, submitted on behalf of AndroGroup Ltd. and not AndroGroup Elevator Ltd.
In the meantime, however, the Work Permit Board had already refused the work permit for Mr. Hayes based not on the criminal charges, but on a complaint filed by competitor Arthur Moore of Cayman Elevator Sales and Systems Ltd.
Separate letters from Mr. Moore and from CESSL’s attorneys L.A. Samson & Co. alleged, among other things, that Mr. Hayes had used underhand methods to bring a Caymanian company disrepute and ultimately… significant economic loss.
The Work Permit Board deferred consideration of Mr. Hayes’ application at first in order to request written corroboration of the allegations made by CESSL.
In response, CESSL produced affidavits from two persons, both of which AndroGroup Ltd. asserted had a vested interest in CESSL, an assertion with which the IAT disagreed.
CESSL was also invited to address the Work Permit Board in person at a hearing on the matter on 3 October 2005, but did not send representation.
The fact that the contents of the letter by L.A. Samson & Co. and the two affidavits were not disclosed to Mr. Hayes was key to the IAT’s decision.
‘The contention that the [Work Permit] Board had failed to disclose the contents of the affidavits and the letter from Arthur Moore and Group does constitute a failure of the board to give a fair hearing and accordingly is a breach of the principles of natural justice,’ IAT Chairman Olivaire Watler wrote.
‘It is well established law that a party affected must be given an opportunity to rebut any adverse material.’
Having established a ground for a re-hearing on the matter, the IAT later considered affidavits from Mr. Hayes, Mr. Roffey and Leo Cole.
‘The tribunal considered their contents to be credible and to have satisfactorily addressed the allegations raised by CESSL, the IAT judgment stated.
Mr. Roffey asserts that the actions of the CESSL effectively made the Work Permit Board prefer one Caymanian company to another Caymanian company.
‘In making its wrongful decision, the Work Permit Board failed to take into account the much larger number of Caymanian businesses to whom my company is now providing a much better service,’ Mr. Roffey said. ‘We have improved the standard of elevator installations and service available in Grand Cayman and that must be good for the community as a whole.’
Mr. Roffey also believes the Government did well in changing the Immigration Law last December to provide for the complaints made to any of the various Immigration boards to be disclosed so that the subject of those complaints can respond.
‘Had we known all of the allegations that had been made against us at the material time… and thus been provided with a fair opportunity to answer them fully at the Work Permit Board hearing in September 2005, we might not have had to endure the expensive pantomime we have been through these last 18 months.’
In its judgment, the IAT also took note of the rulings of the Summary Court with regard to charge of working without a work permit and overstaying against Mr. Hayes.
‘While the court found that the charge of working without a work permit was not made out and Mr. Hayes was discharged on that matter, the court also found that the overstaying charge was established.
‘However, in the view of the short period involved, the tribunal determined in its discretion that this should not be a bar to the success of the work permit’s application.’
The attorneys for Mr. Hayes have subsequently written the IAT disagreeing with its contention that the overstaying charge was established and have asked the tribunal to reconsider rewording the judgment.
‘The Magistrate’s ruling was in fact in relation to a submission of no case to answer,’ the letter from Diamond Law Associates states. ‘The Magistrate found that there was no case to answer in relation to the charge of working without a work permit.
‘In relation to the charge of overstaying, the Court found that a prima facie case was established, rather than the charge having been established.
‘However, Mr. Hayes was thereafter found not guilty of overstaying …’
Diamond Law Associates also made application for costs to be awarded to the appeal applicant, based on the fact that the IAT found there had been a failure of the Work Permit Board to give a fair hearing.
However, the IAT has declined that application.
Mr. Roffey said the IAT’s decision to decline costs will be appealed.
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