Wed | Aug 16, 2017

Court turfs Symsure request for $3m security in worker lawsuit

Published:Sunday | February 28, 2016 | 2:00 AMMcPherse Thompson

The Court of Appeal has dismissed an application brought by Trinidad-registered software firm Symsure Limited to have a former employee who sued for wrongful dismissal put up $3 million as security for legal costs in case he lost the case.

Symsure asked for the order saying former employee, Kevin Moore, who claimed that he resided in Norbrook, was actually living in Florida, United States and had no assets in Jamaica.

A civil litigation lawyer told Sunday Business that it is not unusual for defendants to ask for security for costs in cases where, among other things, claimants reside outside of the jurisdiction and where they believe the claimants' cases are weak.

However, Appeal Court Justice Hilary Phillips agreed with a Supreme Court ruling that Symsure failed to place before the court any information to support the "very large sum" claimed.

According to background in the judgment delivered earlier this month, Symsure is incorporated in Trinidad & Tobago and registered in Jamaica as an overseas branch.

Moore, a computer programmer/product architect who was employed by Symsure from March 26, 2007 to October 27, 2008, filed a claim against the company in December 2008 for wrongful dismissal, or alternatively, damages for breach of contract and specific performance of the employment contract giving him 80,000 shares in the company.

He claimed that Symsure recruited him in 2007 for three months to develop a software programme, an arrangement which concluded on June 26, 2007 after which the parties entered a three-year contract.

Compensation package

That contract provided for a compensation package of US$130,000 per year for the first year, salary increases of 10 per cent per year for the next two years, as well as shares in Symsure on acceptance of the offer.

It also provided that the company may terminate the agreement with 60 days' notice and pay Moore a severance allowance of US$25,000 per year, less taxes.

Moore said Symsure failed to pay the 10 per cent salary increase at the end of his first year of employment and failed to issue to him his equity of 80,000 shares.

He claimed that by letter dated October 27, 2008, Symsure gave him 24 hours within which to accept another offer with reduced benefits and sought to disregard the three-year contract.

Employment terminated

When he failed to accept the new offer within the stipulated time, Symsure terminated his employment without cause or the requisite notice or payment in lieu of notice, his lawsuit alleges.

Symsure, in its defence, stated that the three-month contract, which provided for Moore to be paid US$10,833.33, in addition to travel reimbursements of US$2,100 per month, was the only contractual agreement which existed between the parties. The company said the three-year contract which was being negotiated had never been finalised.

It said the three month contract had been extended by the parties, and up to the date of his termination, Moore was provided with the usual benefits given to overseas consultants in the industry, namely health insurance, credit cards, reimbursement of expenses, a fully maintained company car, travel expenses, and accommodation expenses when he was in Jamaica.

The company said Moore's employment was lawfully terminated. It was Symsure's contention that prior to the termination of Moore's three-month contract, he had been offered the permanent position of chief software architect, which he failed to accept in the stipulated time period.

In July 2013, Symsure filed a notice of application in the Supreme Court for security for costs against Moore in the sum of $3 million to be paid into an interest bearing escrow account on or before October 4, 2013.

The company also sought an order that Moore's claim be stayed until the money was paid, and if it was not, then the claim should stand struck out.

Moore contended, among other things, that Symsure had filed the application in an attempt to stifle his claim a point with which Supreme Court Justice Bertram Morrison disagreed.

However, the judge found that Moore's prospect of success in his claim was probable, that Symsure failed to place before the court any information to support the sum claimed, and therefore refused the company's application for security for costs.

Symsure appealed the decision.

The Court of Appeal sided with Justice Morrison, saying there was no proof to the Symsure assertion that Moore had no assets in this jurisdiction, and that the cost of defending the claim would be in the region of $3 million.

However, it acknowledged concerns of Moore's actual place of abode as well-placed, saying, as the Supreme Court had noted before, that Moore was ordinarily resident outside of Jamaica and had used a Norbrook address on the claim form, which was clearly inaccurate.

mcpherse.thompson@gleanerjm.com