COVID? WHAT COVID?

The choices for where to ride out the global corona virus pandemic have been disheartening as outbreaks and resurgences are almost everywhere you look.  Well, that is if your search has been exclusively in well-known metropolitan centres.  If however you step off the beaten path for a moment, a COVID-19 free small island paradise awaits.  Welcome to Anguilla!

Only 35 square miles, this playground of sun, sea, and sand offers luxury accommodations, world-class dining (including amazing freshly caught seafood), and a place where you set the pace.  In the northern Leeward Islands, Anguilla is 5 miles north of St Martin/St. Maarten and approximately 150 miles east of Puerto Rico.

Boasting zero COVID-19 cases, Anguilla is a smorgasbord of wonderful opportunities and experiences in this time of tremendous uncertainty.

Right now, you can own your own home within this 35 square mile safe haven at significantly cheaper acquisition costs.  Thanks to a Government of Anguilla initiative, you can benefit from reduced stamp duties on land sales, property purchases, and leases of real estate.  If you act now (or up until December 2021) registering the purchase of land either on a freehold or leasehold basis for Anguillians will cost 50% less, stamp duty having been reduced from 5% to 2.5%. To illustrate, if you purchase a home valued at US$500,000, your stamp duty would be US$12,500.00; a saving of US$12,500.00. 

Similarly, the stamp duty on the alien land holding licence (ALHL)  a non-Anguillian will need, has also been slashed.  On the same US$500,000 home, the stamp duty on the ALHL is down from 12.5% to 5%.  This means a saving of US$37,500.00 on the ALHL stamp duty.  This benefit also extends to developers and those interested in building from their own plans; the ALHL when purchasing vacant land has been reduced from 12.5% to 6.25%.  So, on a US$250,000 lot, the ALHL is now US$15,625.00, down from US$31,250.00; a saving of US$15,625.00.

Added to these savings are the benefits that an Anguilla “home away from home” can bring through the Anguilla Residency by Investment (ARBI) programme.  Unlike a citizenship by investment programmes, Anguilla offers an attractive tax efficient residence.  Upon application, you can qualify for residency in Anguilla through a minimum real estate investment of US$750,000.00.  This investment can be the purchase a home, villa, condominium, hotel unit or other approved real estate.  Such ownership will, under ARBI, qualify you and up to three (3) additional family members for residency in Anguilla.

If your family is larger than a complement of four, don’t worry.  Each additional family member may become qualified through a further investment of US$100,000.00.

Once you make Anguilla home, the property needs to be retained for a minimum of 5 years. We are however sure that once you place your toes in the inviting turquoise Anguilla waters, a lifelong relationship will ensue.

For more information on ARBI application, real estate acquisitions, and tax residency in Anguilla, get in touch with our any member of our team or via email to info@sagislaw.com or telephone on 264 497 2447.

COVID 19- Managing Your Human Resources

Employment Law Update

As the global pandemic COVID-19 continues to race across the globe, small and tranquil as Anguilla prides herself, she too is not immune.  While currently there are three (3) confirmed cases, the impact of the epidemic is being felt as measures to protect the health of the island community are imposed. 

As the closure of the borders at 1159 hours on 20th March 2020 approached, there was an impetus for guests wishing to avoid a mandatory two-week extension of their visits to paradise, to depart.  This followed the earlier restrictions in Sint Maarten on flights from Europe, Asia, and the USA.  These along with the closure of the passenger ferry terminal of Saint Martin, and the various directives issued by Government’s worldwide to its citizens to avoid non-essential travel, meant an inevitable contraction of an economy largely driven by tourism.

Combined, these were a collective final death knell to the 2020 hopes and fortunes in the economy’s struggling tourism sector.  The focus turned quickly from projections and forecasts to protection.  The resounding question: how can employers reduce operating costs during these challenging times?   This guidance, while intended for those in tourism, is also applicable to every other employer who is faced with the unenviable task of managing their human resource capital in this time of crisis. 

Lay-off

It is important at the outset to clarify that a lay-off is not the same as redundancy.  While the cause of both actions are usually similar, the aims of each are not.  One is temporary and the other is not.  A lay-off happens when the employer asks employees to not come to work because there is not enough work.  A redundancy on the other hand is a dismissal, sometimes born out of circumstances similar to those that necessitate a lay-off. 

In Anguilla, employment is regulated by the Labour Relations Act 2018 and where there are gaps, the common law.  This Act acknowledges the possibility of lay-offs in the local context and provides that a temporary lay-off does not constitute a break in an employee’s continuity of employment.  It also declares that any such lay-off does not affect the computation of time in a fixed term contract or otherwise prejudice an employee.  It however does not provide an employer with a statutory right to lay-off, and indeed, details no specific steps as to how lay-offs may be effected or their duration.   This option therefore remains one which at common law, an employer can only legally take if there is an express contractual right to do so.  Alternatively, they may do so where this is an agreed right under a collective bargaining agreement.  Absent either scenario, although the Act recognises lay-offs, such an action arguably constitutes a dismissal. 

The Canadian case of Bevilacqua v. Gracious Living Corporation, 2016 ONSC 4127 provides useful guidance.  In that case, Gracious Living Corporation was aware of the Ontario Employment Standards Act, 2000 which provided that a temporary layoff will not trigger a termination of employment if the layoff does not exceed 13 weeks in a period of 20 consecutive weeks, or 35 weeks in a period of 52 consecutive weeks.  Having regard to these, Gracious Living Corporation believed that it could, in September 2014, lay off for three months Giuseppe Bevilacqua, its Facilities Manager of 15 years, while it navigated an economic storm.  Despite cordial relations with the owners of the family business, Mr. Bevilacqua sued for wrongful dismissal. 

When the judgment of the Ontario Superior Court was rendered on 22nd June 2016, the Court reiterated the Court of Appeal’s determination in Elsegood v. Cambridge Spring Service, 2011 ONCA 831.  Justice E M Morgan held that “The Ontario Court of Appeal has held that a unilateral layoff by an employer is, absent agreement to the contrary, a substantial change in employment, and that it therefore constitutes a constructive dismissal…An employer has no right to impose a layoff either by statute or common law, unless that right is specifically agreed upon in the contract of employment. The fact that a layoff may be conducted in accordance with the Employment Standards Act, 2000, SO 2000, c. 41, is irrelevant to the question of whether it is a constructive dismissal.”

In quite direct language, the judge found that the employer “…was not legally authorized to “simply place employment status on hold without pay and expect that this will not constitute a constructive dismissal”

Accordingly, attractive as the proposition of a well-intentioned temporary cessation of work and pay is, even where there is a statutory formulation,  lay-offs without express agreement may be deemed unlawful unless there is a contractual right to do so.  This is so, even as with Gracious Living Corporation, where the employer does not mean to repudiate the employment contract and the layoff is temporary in nature.  Without a contractual clause permitting it, a layoff repudiates a fundamental term of the employment contract and the employee will be entitled to resign and claim constructive dismissal.  Employers should therefore take such steps advisedly as a misstep may lead to a finding of unfair dismissal with financial obligations for compensation and redundancy payments.

Redundancy

Section 105(4) of the Labour Relations Act 2018  stipulate that “an employer has the right to terminate the contract of employment for reasons due to redundancy.”

Importantly, termination by redundancy requires the identification of one of the stated reasons for such a termination in the Act. These are listed at section 106. Focusing on the present situation (COVID-19), those at section 106 (f) and (g) may be applicable. They are:

“(f) it has become impossible or impracticable for the employer to carry on his business at its usual rate or level or at all, due to a shortage of material, a mechanical breakdown, a force majeure or an act of God; or

(g) a reduced operation in the employer’s business has been made necessary by economic conditions including a lack of or change in markets, contraction in the volume of work or sales, reduced demand or surplus inventory.”

It is important to note here that interestingly, section 106(f) places force majeure on the level of a statutory cause.  Ordinarily, force majeure provisions are incorporated into the contract by express language and where this is absent, the contractual tool does not exist independently at common law. The Act having expressly provided for it however, means that the employer can be excused from performance of its contractual liabilities and assert a redundancy event where, as here, there are extenuating circumstances beyond its control. This is useful as the alternative requiring application of the doctrine of frustration is arguably more difficult to establish.

If as it appears the economic landscape dictates considering this course, employers should be aware that this is a formal process involving the Labour Department.  Section 107 provides that if the employer is contemplating making 3 or more employees redundant, the employer must before taking any decision, consult with the Labour Commissioner. This step is mandatory.  Additionally, notice of the intended redundancy must be given to the Labour Commissioner not less than 4 weeks before the intended date of redundancy.

Further, if the decision to terminate for redundancy is taken; the Commissioner is advised and she has not requested exploration of alternatives, then the employer also must inform the trade union and if none, the employee’s representatives and/or the employees. This consultation should include discussion of measures that could be taken to avoid or minimize the adverse effects of redundancy as well as those that could mitigate the adverse effect of terminations.  It may be here that agreement to a contractual variation could be achieved.  Caution and legal advice should both be taken here as in some circumstances the agreement may not be binding and may lead to a finding of redundancy nonetheless.

Employers should note that redundancy is not without costs.  Once the statutory criteria are satisfied, making an employee redundant triggers certain payments contemplated by the Act.  Redundancy (severance) payments of one week’s wages for each completed year of service up to the first 5 years; and two week’s wages for each completed year of service in excess of 5 years are required.  These are calculated on the highest wage earned by the employee over the last year preceding termination.

In addition, section 110(4) makes clear that “Redundancy payment shall not affect the employee’s entitlement to payment in lieu of notice, outstanding wages, wages in lieu of accrued annual holiday, remuneration for work performed by the employee or any other termination benefits.”

As such, If an employee being made redundant has holiday which s/he is entitled to receive holiday pay in lieu.  Also in accordance with section 99, an employee paid at intervals less than a month would be entitled, in addition to severance pay,  to notice or pay in lieu as follows:

  • Less than 1 year service – one week
  • 1 year  to 5 years – two weeks
  • 5 years and over – four weeks

Employees paid monthly are entitled, in addition to severance pay, to notice or pay in lieu as follows:

  • Less than 1 year service – one month
  • 1 year  to 5 years – two month
  • 5 years and over – three months

Supervisors, managers, professional, higher technical or managerial level employees all are entitled, in addition to severance pay, to three months’ notice or pay in lieu regardless of their length of service.

Employers should also be aware that if within 6 months of  making the employee(s) redundant the employer intends to reinstate a position that was the same or similar to the position held by the redundant employee, the employer shall provide the former employee with a reasonable opportunity to resume to position.

Throughout the process it must also be borne in mind that the employer is required to consider the ability, experience, skill and occupational qualifications of individual employees; length of service of employees; age of employees; or other criteria as may be appropriate having regard to the circumstances in selecting employees for redundancy.  Performance of the employee, that is, the employee’s conduct, skills, qualifications, hours of work and any other matter pertaining to performance is irrelevant to the employer’s decision relating to redundancy.

Reduced Working Hours

This too must depend on the terms of the employment contract , except where the employee is employed on an hourly rate basis.  An employee who is employed on an hourly rate basis, once s/he reports for work, is entitled to be paid for the time worked using his/her basic rate of pay, even if s/he is prevented from doing so by reason of force majeure or the directive of the employer.

In respect of employees not paid on an hourly rate basis, in the absence of a contractual provision, it would have to be agreed with the individual employees or their representative as a variation of their employment contracts.

Holiday

Finally, employers may wish to consider that the Act provides that annual paid holiday of 15 days accrues from the anniversary date of employment. This holiday shall be given and taken in one period unless there is a signed agreement to take it in more than one period. It must be taken unless there is an agreement otherwise, within 3 months of the entitlement. Accordingly, once the holiday has accrued the employer can direct that it be taken.  This may be a legal and palatable half-way house between lay-off and redundancy.

Conceivably, the employer can also encourage the taking of holiday in advance of accrual; once the employees agree to do so.

Conclusion

These are times of great uncertainty on several levels.  Survival, in both medical and economic terms, will assume paramountcy globally and the conventional may give way to novel responses in uncharted territory.   Employers are however cautioned to assess this fluid situation and to take advice in advance of fashioning their action plans to avoid legal issues once we have come out on the other side of this pandemic.

Porter Featured Again in WTR 1000

Anguilla, British West Indies – The 2020 edition of World Trademark Review 1000: The World’s Leading Trademark Professionals has once again listed our Partner, Kenneth G. Porter as a world leading trademark professional.

Kenneth received kudos for his professional approach with WTR1000 declaring that: “Anguillian superstar  Kenneth Porter has valuable commercial awareness, offering pragmatic advice on all aspects of business and IP law.” 

Kenneth has consistently maintained his ranking as a key IP Caribbean expert for a number of years.  Learn more about Kenneth Porter

The WTR 1000 research directory, which focuses exclusively on trademark practices and practitioners, has firmly established itself as the definitive ‘go-to’ resource for those seeking world-class legal trademark expertise. As with previous editions, to arrive at the 2020 rankings, World Trademark Review undertook an exhaustive qualitative research project to identify the firms and individuals that are deemed outstanding in this critical area of practice. When identifying the leading firms, factors such as depth of expertise, market presence and the level of work on which they are typically instructed were all taken into account, alongside positive peer and client feedback.

TerraLex & Sagis LP Team Up

TerraLex-Logo

SAGIS LP is an active member of TerraLex®, one of the world’s leading international legal networks.  With more than 155 independent member firms, 19,000 attorneys, and a presence in 100 countries this prestigious connection gives our clients immediate and seamless access to high-quality, client-focused affiliated attorneys worldwide.

As the exclusive TerraLex firm in Anguilla, we are committed to finding innovative and cost-effective solutions for clients.

TerraLex offers access to rigorously vetted law firms in strategic locations. Its mission is to help member firms serve clients’ needs and business interests with the highest professional standards.


For more information on TerraLex, please visit www.terralex.org.

Chambers Ranking

Top Ranked Chambers-Global-2020

Anguilla, British West Indies – We are proud to announce that SAGIS LP has once again been recognised for excellence by the prestigious Chambers and Partners. Receiving a Band 1 ranking in the General Business Law practice category for Anguilla, this a significant recognition as SAGIS retains this ranking for yet another year.

Sources describe the firm’s lawyers as “really good: conscientious, reliable and talented.” Chambers’ review moreover confirms that: “With a deep bench of practitioners, Sagis has the capacity to handle a wide range of matters, including intellectual property, M&A and commercial litigation”.

We are also delighted to share that our Partner, Merline Barrett, who has consistently been ranked since 2016, is again this year recognised in 2020 as an expert in real estate development and finance. Merline earns peer praise and is heralded as the “main name for transactional work” in Anguilla. This is her . Learn more about Merline Barrett

Each year the Chambers Global Guide ranks the top lawyers and law firms in over 190 countries across the world. This is to provide reliable recommendations for when people are purchasing legal services. The rankings are based on in-depth research by their dedicated and experienced team of researchers. Lawyers and Law firms are ranked on several factors including, technical legal ability, client service, commercial vision and business understanding, diligence and value for money.

Legal Brief

Limitation of Recourse to Judicial Review

In the recent case of Benjamine Company Services Ltd v Anguilla Financial Services Commission AXAHCV2017/0066, the High Court considered an application for judicial review. The applicant attacked the decision of the Anguilla Financial Services Commission (FSC), the industry regulator, to impose upon it a significant financial penalty of EC$50,000.00. This the FSC levied because Benjamine Company Services Ltd. (BCS), a company licensed by it to carry on company management business, had allegedly failed to comply with various sections of the Anti-Money Laundering and Terrorist Financing Regulations.

As such, in or around June 2017, BCS received the Notice of Intention from the FSC to impose the penalty. The particular breaches grounding the Notice included, amongst others, a failure to conduct customer due diligence and failing to categorize the particular client company as high risk. Naturally, BCS denied that the due diligence it undertook were rudimentary. Further, in the alternative, they argued that the penalty should be significantly reduced. They were, it was advanced, in no financial position to pay such an excessive fine. In support of this contention, they supplied the FSC with copies of their audited financial statements. If FSC remained unpersuaded by these, BCS requested an oral hearing.

In response, the FSC indicated that the written representations of BCS provided no sufficient reason for a variation of its original position as contained in the Notice of Intention. Further, the FSC denied BCS’s subsequent request for an oral hearing. It contended there was no legislative authority for the FSC to consider such a request. After further exchanges, the FSC’s maintained there was no reason to find that BCS had not committed the alleged infractions or to justify the imposition of a lower penalty. BCS applied to the High Court for leave to apply for judicial review. The gravamen of the BCS’ claim is that the FSC breached the principles of natural justice. It BCS argued failed to afford it the opportunity for a fair hearing before imposing the EC$50,000.00 penalty. BCS also claimed that the penalty was disproportionate and unreasonable in all the circumstances.

It was common ground that the applicable test was that stated by the Privy Council in Sharma v. Antoine et al (Privy Council Appeal No. 75 of 2006) where the Committee stated: “The ordinary rule now is that the Court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or alternative remedy.”

In this case, Mathurin J. rendered her decision on 22nd February 2018. In consideration of the evidence, the court was satisfied that there was a potential failure by the FSC. In these particular circumstances, not affording BCS an opportunity to be heard was an issue. It raised a reasonable prospect of success as it gave birth to the issue of procedural unfairness. That being said, the court went on to consider whether there were any operative discretionary bars. Recognising the presumption against judicial review where an alternative remedy exists it was noted that “the Court may not grant leave where the Court forms the view that some other form of legal proceedings or avenue of challenge is available.” This became the very issue on which the case turned.

Pursuant to section 60 of the Anguilla Financial Services Commission Act, a person aggrieved by a decision of the FSC may apply to the court for leave to appeal against that decision. Such an application must be filed within twenty-eight (28) days of the decision. The court, on hearing such an appeal, may either dismiss the appeal or remit the matter back to the FSC for further consideration. Given this available statutory avenue for redress, it was for BCS to establish an exceptional reason why judicial review was a more appropriate remedy than the statutory appellate regime.

In an attempt to overcome this hurdle, BCS argued that given the limited ambit of orders that the court could make on an appeal, judicial review was conducive to saving time and costs. It contended that if remitted BCS may find itself being aggrieved by a subsequent decision of the FSC’s. This was likely to cost it more professional costs and time in having to apply for leave repeatedly. This argument of inconvenience did not find favour with the court. Mathurin J deemed it unsustainable. The view of the court was that “…to agree with this would in effect license applicants to achieve judicial review by simply relying on the inconvenience, cost and delay of the statutory procedure and would risk subverting the Legislature’s intention in creating such appeals.” The court, in stating this position, was not daunted by the fact that by the time of judgment on 22nd February 2018, the time for filing a statutory appeal had elapsed. The court considered this to have been the choice of BCS; a choice they would have to live with. The application for leave to apply for judicial review was therefore dismissed.

Compelling as the applicant’s natural justice arguments may have been, given the decision of the court, these were not considered. Instead the court decisively reconfirmed the well-known presumption against judicial review where an alternative remedy exists.

Address

Sagis House
P. O. Box 14, The Valley
Anguilla, AI-2640, BWI

Contacts

Tel: (264) 497 2447
Fax: (264) 498 2447
Email: info@sagislaw.com

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