Sto­ries by Asha Javeed

Lead Ed­i­tor In­ves­ti­ga­tions

asha.javeed@guardian.co.tt

Ni­Quan has been or­dered to pay its for­mer vice pres­i­dent—for­mer in­de­pen­dent sen­a­tor David Small—$20,647,017 mil­lion for breach of con­tract for monies owed to him dur­ing his em­ploy­ment.

The court judg­ment comes amid fi­nan­cial prob­lems plagu­ing the com­pa­ny which is close to US$300 mil­lion in debt.

Ni­Quan has gone of­fline be­cause it now has no per­mis­sion to op­er­ate from the Min­istry of En­er­gy and En­er­gy In­dus­tries (MEEI) and no nat­ur­al gas con­tract for the plant to con­tin­ue with the project.

Small was Ni­Quan’s vice pres­i­dent of Glob­al En­er­gy Ser­vices since 2015 and ex­it­ed the com­pa­ny in No­vem­ber 2021.

His res­ig­na­tion fol­lowed an email, dat­ed Oc­to­ber 20, 2021, in which he com­plained about ir­reg­u­lar pay­ments by the com­pa­ny which was af­fect­ing his abil­i­ty to make ends meet and pro­vide for his fam­i­ly.

For its part, Ni­Quan’s founder and chief vi­sion­ary of­fi­cer Ains­ley Gill ar­gued that Small was aware of the fi­nan­cial chal­lenges which the or­gan­i­sa­tion faced as a start-up and was un­rea­son­able in his re­quests.

Ac­cord­ing to court doc­u­ments, Small ne­go­ti­at­ed a mu­tu­al sep­a­ra­tion agree­ment from the or­gan­i­sa­tion with Gill for the sums and bonus owed to him dur­ing his tenure in Oc­to­ber 2021. How­ev­er, no pay­ments were made de­spite the spe­cif­ic dates agreed to and Small sub­se­quent­ly took le­gal ac­tion.

In a judg­ment de­liv­ered on Fri­day af­ter­noon, Jus­tice West­min James ruled in favour of Small and award­ed dam­ages for breach of con­tract in the sum of $18,575,880.40; ag­gra­vat­ed and ex­em­plary dam­ages in the sum of $1,116,273.00, in­ter­est at the rate of 2.5 per cent per an­num from the date of the breach, No­vem­ber 30, 2021, to the date of judg­ment, there­after statu­to­ry in­ter­est at the rate of five per cent per an­num un­til pay­ment as well as pre­scribed costs in the sum of $332,460.77.

There is a stay of ex­e­cu­tion on the judg­ment for 21 days.

In his rul­ing, James said that Gill’s con­duct “must be pun­ished and a pro­por­tion­ate award of ag­gra­vat­ed dam­ages must be made so as to re­flect the blame­wor­thi­ness of the de­fen­dant’s con­duct and to sig­nal that it will not be tol­er­at­ed or con­doned by the court”.

He not­ed that in the agree­ment reached be­tween Small and Gill, Small gave up his right to bring a claim against Gill for sum­ma­ry dis­missal in lieu of a ne­go­ti­at­ed set­tle­ment.

James de­scribed Gill’s ac­tions af­ter Small gave up his rights as “rep­re­hen­si­ble, as the con­duct was cal­cu­lat­ed to take ad­van­tage of every chance to de­lay pay­ing the claimant or not to pay him any­thing at all”.

“At the same time, the de­fen­dant got all that they want­ed out of the agree­ment. The claimant re­signed and was bound by a non-com­pete clause for 12 months, and they did not have to pay him monies he was owed or any salary dur­ing this time. The process which was en­gaged by the de­fen­dant in de­lay­ing all pay­ments and not mak­ing any pay­ment and the ex­cus­es were out­ra­geous, high-hand­ed and egre­gious to the court,” the judg­ment said.

Small not the first to sue for monies owed

Small is not the first vice pres­i­dent who has sued Ni­Quan for non-pay­ment of monies owed and has been suc­cess­ful in the courts.

In 2021, Eber­hard Lucke, for­mer vice pres­i­dent of Process En­gi­neer­ing and Tech­nol­o­gy sued the com­pa­ny in the Har­ris Coun­ty court in Texas, for sums owed to him—US$368,793. Lucke al­so com­plained about ir­reg­u­lar pay­ments from the com­pa­ny. On Jan­u­ary 6, 2022, he won his mat­ter and was award­ed US$435,000 by the court, which Ni­Quan paid.

James not­ed that Ni­Quan agreed to that pay­ment in the US courts “yet failed to ac­cept the claim here”.

“The be­hav­iour, im­prop­er mo­tives which fash­ioned the ac­tion un­der­tak­en by the de­fen­dant and the pure un­fair­ness as well as un­equal treat­ment has to be con­demned,” he said.

He said that giv­en the cir­cum­stances, the court be­lieved that ap­prox­i­mate­ly one year’s salary as an up­lift in dam­ages cal­cu­lat­ed at $1,116,273.00 is just and rea­son­able.

He not­ed that Small was em­ployed with the de­fen­dant with­out any his­to­ry of im­prop­er con­duct or the fail­ure to dis­charge his pro­fes­sion­al oblig­a­tions and re­ceived a rec­om­men­da­tion un­der the sep­a­ra­tion agree­ment, but yet at the tri­al Gill “sought to im­pugn the pro­fes­sion­al­ism and con­duct” of his tenure.

Guardian Me­dia had ex­clu­sive­ly re­port­ed Small’s ex­it from Ni­Quan but at that time, he chose not to dis­cuss the mat­ter giv­en the le­gal pro­ceed­ings.

Small, who is now em­ployed as a prin­ci­pal con­sul­tant at David Small and As­so­ciates, has pre­vi­ous­ly worked at the Min­istry of En­er­gy and En­er­gy In­dus­tries and was a for­mer di­rec­tor at the Na­tion­al Gas Com­pa­ny (NGC) be­fore his turn as an in­de­pen­dent sen­a­tor.

The claim–Small ver­sus Gill

Ac­cord­ing to Small’s wit­ness state­ment, for the ma­jor­i­ty of his em­ploy­ment at Ni­Quan he was un­paid.

His re­la­tion­ship with Gill fol­lowed from con­sul­tan­cy ser­vices he pro­vid­ed as a se­nior en­er­gy ad­vis­er for Gill’s Wash­ing­ton-based AGA Group.

That led to an of­fer of em­ploy­ment at Ni­Quan when Gill set about ac­quir­ing the Gas to Liq­uids (GTL) plant.

But the com­pa­ny was not well cap­i­talised and had cash-flow chal­lenges from the start.

“A pat­tern de­vel­oped where­by the de­fen­dant would fail or refuse to pay me the sums due to me un­der the con­tract of em­ploy­ment or de­lay in pay­ing the same. This was done uni­lat­er­al­ly on their part and I ob­ject­ed to the ar­bi­trary man­ner in which my month­ly salary pay­ments were be­ing made,” he said.

Small said in May 2021, he re­quest­ed a state­ment of his in­sur­ance con­tri­bu­tions from the Na­tion­al In­sur­ance Board.

“Up­on re­ceipt of the state­ment dat­ed June 28, 2021, it showed that for the year 2018 on­ly four con­tri­bu­tions were record­ed, and ze­ro con­tri­bu­tions were made for the years 2019, 2020 and 2021 to date. I be­came very con­cerned be­cause Ni­Quan was ob­lig­at­ed by law to pay my NIS con­tri­bu­tions and the fail­ure to do so would ad­verse­ly af­fect the val­ue of my pen­sion and re­tire­ment ben­e­fits from the Na­tion­al In­sur­ance Board,” he said.

With mount­ing bills, he sent an email on Oc­to­ber 20, 2021, seek­ing to de­ter­mine when he would be paid by the com­pa­ny and out­lined the sums owed to him.

Fol­low­ing a meet­ing at Gill’s Good­wood Park home on the mat­ter, he agreed to re­sign and an agree­ment for pay­ment of out­stand­ing sums was ne­go­ti­at­ed. It was agreed that he would be paid his to­tal sum over a three-month pe­ri­od with the bonus by March 2022.

Gill agreed in the sep­a­ra­tion agree­ment to of­fer Small $116,273.00 as pay­ment in lieu of no­tice, $465,092.00 as an ex gra­tia pay­ment, $890,830.06 as pay­ment in re­spect of ac­crued but un­tak­en an­nu­al va­ca­tion leave; $3,412,855.28 be­ing ac­crued salary un­paid up to the pe­ri­od Sep­tem­ber 2021 and the sum of $12,800,000 be­ing the one-time bonus pay­ment.

Small said the agree­ment was ne­go­ti­at­ed in “good faith”.

As part of the agree­ment, Small agreed to not take le­gal ac­tion for his dis­missal and to not work in a com­pet­ing en­ti­ty for one year.

“As an em­ploy­er, Ni­Quan has failed to ho­n­our their oblig­a­tions de­spite be­ing made aware of my pre­car­i­ous fi­nan­cial po­si­tion. In­stead, Ni­Quan has sought to ex­ploit that by forc­ing me in­to lit­i­ga­tion that I can ill af­ford. Un­til I took le­gal ac­tion my pleas and cries were sim­ply ig­nored, and I was left to floun­der in the midst of the crip­pling pan­dem­ic,” Small said.

How­ev­er af­ter the first and sec­ond pay­ments were missed, Small said he fol­lowed up and was in­formed that the com­pa­ny would pay him when mon­ey be­comes avail­able.

He is­sued a pre-ac­tion pro­to­col let­ter in Feb­ru­ary 2022 and pur­sued le­gal ac­tion there­after.

In the time that fol­lowed, Small told the court that he and his fam­i­ly were fi­nan­cial­ly chal­lenged and his phys­i­cal and men­tal health de­te­ri­o­rat­ed.

In his af­fi­davit, Gill ad­mit­ted to the agree­ment but said it was con­di­tion­al on the plant achiev­ing com­mer­cial op­er­a­tions date (COD) and not be­fore.

In­stead, he said Small was un­rea­son­able in his re­quest for sums owed to him giv­en that he un­der­stood, as a vice pres­i­dent of the or­gan­i­sa­tion, the fi­nan­cial chal­lenges which the com­pa­ny faced.

“Fur­ther, by this of­fer of em­ploy­ment, the claimant was of­fered a one-time bonus of $12,800,000.00 payable when the fol­low­ing con­di­tion was sat­is­fied, name­ly up­on the suc­cess­ful fi­nan­cial close for the GTL Plant,” Gill said.

Small said that in en­er­gy lan­guage, fi­nan­cial close was fi­nanc­ing the project and com­plet­ing the con­struc­tion.

In his af­fi­davit, Gill claimed that fi­nan­cial close was COD which the plant has not yet achieved.

Gill said he made an ex­cep­tion for Small and per­mit­ted him to work and earn salary and emol­u­ments as an in­de­pen­dent sen­a­tor in the Trinidad & To­ba­go Par­lia­men­tary Up­per House and as a Non-Ex­ec­u­tive Di­rec­tor of The Bea­con In­sur­ance Com­pa­ny Lim­it­ed.

“The claimant had lim­it­ed re­spon­si­bil­i­ties giv­en the fact that the de­fen­dant was not op­er­a­tional at ma­te­r­i­al times and was not in­volved in any glob­al en­er­gy ser­vices,” he said.

“It is the de­fen­dant’s po­si­tion that this de­mand of the claimant was whol­ly un­re­al­is­tic and un­rea­son­able giv­en the in­creased fi­nan­cial strain ex­pe­ri­enced by the de­fen­dant fol­low­ing what was a ma­jor blowout of the hy­dro­c­rack­er strip­per col­umn of the de­fen­dant’s Gas to Liq­uids Plant and the con­se­quent fire dam­age there­on which oc­curred on April 7, 2021. The claimant’s de­mand was al­so un­rea­son­able giv­en the lack of fi­nan­cial re­sources of the de­fen­dant and the acute­ly short time to pay al­so hav­ing re­gard to the course of deal­ings be­tween the par­ties. It is the de­fen­dant’s po­si­tion that the claimant, as an ex­ec­u­tive of Ni­Quan, was or ought to have been well aware that pay­ment would be made to him on­ly when the de­fen­dant com­pa­ny had rev­enues from com­mer­cial op­er­a­tions or was able to raise suf­fi­cient debt and/or eq­ui­ty fi­nanc­ing,” Gill said.

Small was rep­re­sent­ed by at­tor­neys Anand Ram­lo­gan, SC, Jared Ja­groo and Robert Ab­dool-Mitchel from Free­dom Cham­bers while Gill was rep­re­sent­ed by at­tor­neys Ken­neth Shawn Ma­hase and Van­dana Ben­ny.