Law firm seeks to block ex-employees’ new jobs

| 19/04/2016 | 39 Comments
CNS Business

Appleby office, Grand Cayman

(CNS Business): Appleby (Cayman) Limited has filed an application for a judicial review of a decision by the chief immigration officer, who granted rival firm Harneys temporary work permits for two of their former employees. Appleby claims that at the time, it still held work permits for Jonathan Bernstein and Ian Gobin, and that, according to Cayman Islands immigration law, during the currency of a work permit employers cannot change employers unless there are special circumstances.

While some local lawyers have suggested that the blocking of new permits by former employers contradicts the Constitution, in this case Appleby is highlighting the section of the law that was designed to prevent foreign workers from job hopping. The firm suggests that advice that has been given by the Attorney General’s Chambers that the use of the term ‘may not’ rather than ‘shall not’ in the law implies that workers can job hop is “nonsensical”.

In the application, Appleby quotes from the Hansard to argue what they believe is the intent of the legislation, stating, “The Law was expressly intended to provide appropriate protection to Cayman Islands employers in light of the great expense they incur in the recruitment and training of employees.”

Appleby claims that when an employee resigns, he is not necessarily free to work for whoever he wants because the employer’s permit remains valid. The firm says that the Cayman Islands Department of Immigration has misinterpreted the regulations of the immigration law.

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Category: Finance, Financial Services, Law

Comments (39)

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  1. Anonymous says:

    One thing is that is becoming more and more evident these days is that immigration is handing out “temporary” permits like hotcakes. The whole “temporary” permit concept is just flawed to the bone. Anyone and everyone can get their foot in by getting a “temporary” permit

  2. Anonymous says:

    11:29 am

    Below is the relevant section of the Immigration Law, 2014. Government must decide if this section should be implemented or deleted. If it is deleted, then release letters are not necessary and “special circumstances” are not necessary for WPH’s to change jobs. If government decide to delete this section or allows the immigration department to continue to ignore this section, it is likely that more businesses will have an issue with this once they understand how this affects their business.

    Consider how this will work if this section of the law is deleted.( Actually this is how it is working now). Bank A hires a new manager. Two months into the permit for Bank A, Bank B offers the new manager of Bank A, a job. The new manager of Bank A decides to move on to Bank B because he has been offered a bit more money. ( This is not considered a special circumstance).

    Bank B applies for a work permit for the manager of Bank A and the permit is granted without a release letter or any questions from the immigration department/boards as to what “special circumstances” apply. Bank A now loses all the money and time they spent recruiting the manager. Additionally, the new manager takes his knowledge of Bank A’s business to Bank B. There have already been several instances of this happening in various industries.

    In the scenario above with the two banks, the manager was able to move very easily without any obligation to his/her new employer. Yes a work permit is still required, but if a release letter is not needed and there is no requirement to explain what the “special circumstance” is for moving on to a new employer, then all business need to know this is how it works. Forget what the law says.

    We cannot pick and choose what laws we want to uphold just because we don’t like or agree with the law. If you do not like the law as it is, petition government on this. My guess is they will dodge the issue.

    Section 50
    During the currency of a work permit, the holder of that permit may not change his employer unless Change of employer (a) the Board, including the Cayman Brac and Little Cayman Immigration Board, or the Chief Immigration Officer believes there are special circumstances; or (b) the circumstances of his employment are within a description or class of descriptions specified in a direction made by the Cabinet.

    Section 2:
    “special circumstances”, in relation to a change of employer or occupation, includes a situation where- (a) the position has become redundant; (b) the worker is being victimised by the employer or by other employees of that employer; (c) the employer has changed due to corporate action such as merger or amalgamation; or (d) the worker has been given written consent by his present employer;

    • Anonymous says:

      Rather than relying on the law to protect your business instead invest and motivate your staff, they then might not leave?

      This is what happen in the real world – get used to it

      • Anonymous says:

        what a stupid comment! Did you really just tell this person not to rely on the law?! You have no idea the intent behind the law. Best thing you can do is go to the Hansard and understand why the law was passed. If you don’t like it then lobby government. That IS how the real world works –

  3. The Watcher says:

    Nothing wrong with Appleby fighting this. However, I will say that it was very premature for Harneys to announce that Jonathan Berstein and Ian Gobin had joined their firm when they hadn’t even left Appleby yet.

    It was in the ‘Business in Brief’ section on July 8th 2015 of a popular local publication, in case you want to go see for yourself – titled ‘Harneys adds Cayman Funds Partners’. It must have been awkward for both gentlemen while still at Appleby.

    In my opinion, that public notice probably rubbed the leaders of Appleby the wrong way and it could have led to all this. I highly doubt this is the first time that Appleby has had expat employees jump ship.

    • Anonymous says:

      Lucky for the expat employee, if a Caymanian leaves his/ her job they cannot even get an offer from anyone, especially these law firms. They will sit back with their vacancies and allow the person to starve to death, lose their house etc. now that the shoe is on the other foot it is a whole different story.

      • Who not here? says:

        I think you missed a couple key points. They left because they had another offer and they didn’t just leave and hope for the best. This indicates they have a marketable set of skills. If you have a skills an employer needs or desires you tend to get an offer.

        It is a tough world out there, unless your socialist, then everyone is just poor except for those senior enough in government to get a seat at the banquet.

  4. Island Bundy says:

    Work permit holders need to remember that they are essentially rented for their services and used for their capabilities. The laws and constitution do not level the playing field for Caymanians and Expats. I have seen this from experience 20+ years in Cayman.

  5. Anonymous says:

    I truly hope this receives the same disinterested lack of attention from immigration as requests and complaints from individuals do.

  6. Anonymous says:

    It appears as if Appleby’s is attempting to use the Immigration Law to enforce a non-compete clause. The proper route of enforcement of a non-compete clause is through the civil courts. Surely a firm full of attorneys should know this? Or maybe, just maybe, Appleby’s doesn’t want to take its chances in court.

    • Anonymous says:

      surely you cannot be a lawyer. The law is very clear on this point and it has nothing to do with non compete clauses. It is the Law and Appleby has the right to have the law enforced. I also find it hard to believe that a work permit holder put on notice that they cannot move from job to job without a release letter as per the law (its on their work permits), feels they have a constitutional right to a job of their choosing wherever and whenever. There is no country in the world that allows that.

      • Anonymous says:

        Sure, and every Caymanian has a right to have the Law enforced when the immigration law is ignored in favor of influential persons but…

      • Anonymous says:

        Job hoppers should have their permits cancelled and sent back to from whence they came-HOME. Only in the Cayman Islands they are allowed to walk off of one job and walk on to another. Time for this to stop.

    • Anonymous says:

      Are you crazy? Do you want to give a court the chance to rule that the clauses you are forcing all your staff to sign are unlawful and void! How could you own them then?

  7. Anonymous says:

    Is Appleby doing this or going to do this for all employees that resign before their work permit ends?

  8. Anonymous says:

    I doubt Appleby is testing immigration law to establish clarity, more about protecting business interests, and income!

  9. Soldier Crab says:

    Hopefully this will lead to a clear policy by the Immigration Department: So many people come here on temporary permits with the promise of permanent work and certain benefits, only to find, when they arrive that they have to find their own work, pay a percentage to the work permit holder and have nowhere to stay.

  10. Anonymous says:

    If a person has resigned (for whatever reason) and given ample notice to their employer, how can you hold that employee(s) hostage from obtaining other employment, whether he or she is Caymanian or expat ?

    Fist and foremost, treat your employees good (pay and welfare) and they won’t go straying off and grazing in greener pastures.

    It’s that simple.

    • Anonymous says:

      Pretty sure the immigration law is clear that once you resign, the work permit is cancelled.

      “Where a person whose employment in the Islands is authorised under a work permit, the grant of which is conditional upon his remaining in the employment of a particular employer ceases to be employed by that employer-
      (a) the work permit ceases to be valid; and
      (b) the employer shall forthwith give written notice of the termination of the employment to the Chief Immigration Officer, and if he fails to do so commits an offence and is liable on conviction to a fine of five thousand dollars.”

      So if a WP isn’t valid how can you ‘hold’ a WP? Unless they are still employed by Appleby?

      • Anonymous says:

        At 8.28am According to the passage of the law that you quote,the work permit ceases when the person is no longer in the employment of the permit holder. Please note that resigning usually requires a notice period ,say one month, when the employee is actually still employed by the permit holder. I take this to mean that a new permit should not be sought or granted before the end of this notice period.I am no lawyer but that is the way I see it.

      • Anonymous says:

        Please read section 50 of the law. It applies whether the permit holder is fires or they leave. They still have a ‘currency of their term’ that applies. When that is over they can move on. You should also read section 2 whilst you are at it. (b) is in the regulations and clearly mandatory but it is a separate requirement to section 50 of the Law.

    • Anonymous says:

      @9:10pm – In the case of a Caymanian worker, your comments are legitimate but in the case of a work permit holder, the law says they cannot change employers unless there are “exceptional circumstances”. Unfortunately, “exceptional circumstances” appears to be a very subjective test in most cases and so for the most part, anyone can job hop in this country. We have laws but who knew?

      • Anonymous says:

        But that refers to “moving” a work permit from one employer to another. It doesn’t apply where one work permit is being cancelled or allowed to lapse and another one being applied for, which was the case here.

        I think the law is clear that the WP terminates when employment terminates so the employees were free to apply for a new WP with Harneys once their notice period expired.

        Appleby is using the immigration law as an alternative to trying to enforce anti-competitive and potentially unenforceable restraint clauses in their employment contracts.

  11. Anonymous says:

    Appleby is attempting to have the immigration law implemented. Work permit holders only need to read their work permit approval letter to understand that Appleby is correct. All work permit approval letters clearly state that if an employee wishes to change jobs during the currency of a work permit, they must have a release letter from their current employer and if they are unable to get a release letter, then they must prove to the Chief Immigration Officer that they have “special circumstances” and therefore be allowed to change employers.

    These “special circumstances” are defined in the law and are there for the protection of employees who are being mistreated. No employee should ever be bound to an employer who is abusing them. For example, an employee who is not being paid pension should be able to go to the immigration department and make the case that they have a “special circumstance” and be allowed to change to a new employer. ( As long as no qualified Caymanian is available). The need for a release letter is also noted on the check list of all work permit application forms. The point is, all work permit holders understand the conditions of their work permit because it is clearly stated on their work permit approval letter.

    As correctly noted in another blog, employees on work permits in certain industries have been changing jobs almost as easily as Caymanians do, for many years. The government do not want to clarify this point of law. However, they must take a position on this. If their position is that employees on a work permit can change jobs as freely as a Caymanians, then they need to let everyone know what the rules are.

    This will be an interesting case to watch. If Appleby is not successful, then I believe that it will clear the way for all work permit holders to change jobs without release letters or special circumstances.

    • Anonymous says:

      How do you know there weren’t special circumstances? I am sure it is safe to say the CIO did his due diligence before making a decision.

    • Anonymous says:

      Exactly, not sure why this is news. When I arrived here in 1996 it was unheard of that a lawyer would change firms given that they would never receive a release letter from their existing employer. When did this change?

    • Anonymous says:

      The law also says that when you resign the permit is no longer valid, so not sure how you can ‘hold’ a permit for someone until it expires if it’s already cancelled. You can’t legally remain on island without some form of immigration status, however, as I read it, you can resign, approach immigration for leave to stay, and apply for a permit with someone else. The request to transfer part just ensures you aren’t left in limbo and possibly kicked off the island, or if you are unlikely to receive approval to stay without a current job. The resign/reapply is more risky than a transfer.

    • Anonymous says:

      Hi Appleby PR team. May I ask whether the firm have ever hired someone on Island without a release or special circumstances applying, or is this only an issue when you’re the current employer?

      I’m also interested to hear that this would mean that expats can change jobs as freely as Caymanians. Has the government done away with the need to obtain a work permit for the new job, or is that simply an incorrect statement on your part?

    • Anonymous says:

      They weren’t trying to change employers during the currency of a work permit; they were trying to cancel their WP and apply for a new one for work with Harneys.

      According to the law their Appleby WP terminated at the end of their employment.

  12. Anonymous says:

    The law also obliges an employer to cancel the work permit if an employee no longer works for them. You can’t have it both ways.

    • Anonymous says:

      at 7:31 pm Just remember that if employee has given notice , he is actually still in the employment of the original permit holder until the end of that ‘notice period’.

  13. Anonymous says:

    Same scenario takes place time and time again in other industries – beauty salons and restaurants and bars come to mind.

  14. Anonymous says:

    Dear Pot…meet kettle

  15. Anonymous says:

    Good going Appleby!

    Set the precedent!

  16. Anonymous says:

    Great example of a firm, who should know better, using the Immigration Law to further its own best interests

    This doesn’t happen in the real world, people do change jobs and move firms, and unfortunately show the WP process to be what it really is – indentured servitude

    • Anonymous says:

      @ 1.05 It is what it is , but then again I believe you chose to come here so just obey the law or move to a jurisdiction where this scenario does not apply.

      • Anonymous says:

        @1:48 – The attitude of ‘ If you don’t like it, then leave’ is getting old and quite frankly childish at best. It’s the equivalent of saying ‘Nana Boo Boo’ when you simply cannot come up with an intelligent response.

        I’m sure that all ex-pats, driftwood, paper CaymanIans and PR holders are aware that they have the option of leaving Cayman. The fact that they choose to remain in the face of a constant barrage of vitriolic remarks from ‘real’ CaymanIans is astounding.

        But still we claim to be a country whose people are some of the most welcoming and friendly in the world?

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