7 National Helicopter Services employees to get gratuity after 10-year battle

Six National Helicopter Services Ltd pilots and a senior avionics engineer will receive their gratuities owed to them for 2011-2014, as the Court of Appeal has dismissed a challenge of a judge’s order for the payments.

On March 8, Justices of Appeal Charmaine Pemberton, Gillian Lucky and James Aboud dismissed the NHSL’s appeal of Justice Jacqueline Wilson’s 2019 ruling in favour of the seven in their ten-year battle.

The seven had sued the NHSL for their gratuities for the four-year period, which represented 20 per cent of their salaries.

They were part of a team assigned by NHSL to provide services and support to the Air Operations Division of the Special Anti-Crime Unit of Trinidad and Tobago (SAUTT).

Aboud, who delivered the ruling, described the assignment of the seven to exclusively serve the interests of SAUTT as “an unusual and relevant fact.”

The arrangement was based on an agreement between NHSL and the Government, and although a private company, NHSL provided the services at the request of and under the directions of SAUTT as an agent of the government.

Aboud said the “clarity of the contractual arrangements between NHSL and SAUTT” was muddied by the written interactions between NHSL and the government agencies, and the interactions between the seven (the respondents) and the government agencies."

SAUTT fell under the purview and control of the Ministry of National Security, but ceased operations in August 2011. Its functions were then performed first by the National Security Operations Centre and then by the National Operations Centre.

NHSL continued to contractually provide air operation services to the successor agencies through its hand-picked employees during the various restructuring phases of the agencies.

In their claim for payment, filed in 2015, the seven maintained they received documents prepared by NHSL purporting to be three-year contracts for 2012-2014.

The contracts were to be signed by Major Paul Brown, assistant director of SAUTT, then returned to NHSL for the company’s signature. Those contracts contained a term for the payment of gratuity.

NHSL did not sign.

The seven contended NHSL was in breach of contract by refusing or failing to pay the gratuities.

They relied on the contracts and letters they received in 2011, after SAUTT changed over to the NSOC, to support their claim that a gratuity was owed to them for 2011-2014.

In its defence before the judge,NHSL denied that the gratuities were due and payable to the seven. The company said it received no directive or instruction from the Ministry of National Security to pay them.

NHSL further said the payment of gratuities was not a part of the contractual arrangements with it, nor did it execute the SAUTT contracts.

At the trial, NHSL contended that the letter did not properly originate from the Ministry of National Security and that Brown did not have the authority to give binding or any instructions, so it was not bound to act on them.

In his decision, Aboud, as he scrutinised the purported contract, said, “In my opinion, the historic lines of authority that the state agencies or their appointed functionaries unusually exercised over NHSL and their ‘assigned’ employees became blurred, but not to the point of being entirely incomprehensible or unenforceable.

“The arrangements with the ‘assigned’officers, and the authority of the State’s functionaries over NHSL to design those arrangements, was previously established between NHSL and the State’s functionaries on the basis of the documentary evidence, as the trial judge, in my opinion, correctly held.”

He said the agencies’ relationship with the managers of NHSL was “complicated and highly unusual.”

However, he said Wilson, “in attempting to make sense of this relationship, and the issue of the state’s control over the ‘assigned’ employees, cannot be said to be plainly wrong in making her findings of fact on the basis of the documents and the viva voce evidence before her.

“For these reasons, I dismiss NHSL’s appeal. The calculation of the gratuities ordered by the trial judge are referred to a master for determination, unless the parties amicably agree what gratuities are owed.”

In her ruling, Wilson held that because there were no written contracts of employment signed by NHSL for the years 2012-2014, it was reasonable to conclude that the contractual arrangements basically continued as before.

Aboud also agreed with this assessment.

“NHSL’s failure, on its own behalf, to execute written contracts for the respondents to cover the years 2012-2014, does not mean that the respondent’s pre-established employment status or terms of employment with NHSL ceased to exist.

“It is therefore, in my opinion, unreasonable for NHSL to prevent the respondents from receiving a gratuity because of the exclusion of such a provision in a contract that it refused to sign,” he said.

Wilson also found that Brown’s directive on the terms and conditions of employment was a binding and authoritative instruction to NHSL as confirmed by the 2011 agreement, and there was no evidence of its being rejected by the government.

“Clearly, there were no written contracts of employment between the respondents and NHSL from 2012-2014. There was, however, according to the trial judge, no doubt that during these three years the respondents’ employment status with NHSL, as officers ‘assigned’ to the GORTT agencies, remained intact.

“In the circumstances, as she held, it could not reasonably be asserted that the respondents were precluded from receiving a gratuity by virtue of the exclusion of such a provision in their expired NHSL contracts of employment.”

Wilson also held that the perceived errors in the contracts for the payment of a gratuity were “mathematical in nature” and did not affect the legal entitlement of the seven.

“According to the trial judge, the position taken by NHSL was no more than a ‘recent innovation calculated to deprive the respondents of their contractual entitlement,’” Aboud recalled in his assessment.

NHSL was represented by Leslie-Ann Lucky-Samaroo and Nicholas Campbell. Attorneys Shiv Sharma and Andre Le Blanc represented the seven.