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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.