Employers have rights too: Part III

Friday, June 16, 2006

Consider this actual, real life situation occurring here in the Cayman Islands that recently came to our attention.

An expatriate employee of a local firm, which we will call Employer A, decides that she wants to "job-hop", even though the term of her work permit has just commenced.

Employer A declines to consent to the issue of a new permit for the said employee with a new employer and, unusually, the Immigration Department subsequently requires her to leave the country pending the processing of a new application, there now being, again unusually, considerable uncertainty that such new application will be approved.

Shortly thereafter, Employer A is contacted by the boyfriend of the former employee, also an expatriate working in the Cayman Islands on a permit, who threatens to cut off an existing business relationship between his local employer (who we shall call Employer B) and Employer A, unless the latter consents - issues a letter of release - to the issue of a new work permit for his girlfriend.

Employer A refuses to be blackmailed or held hostage in this manner.

Subsequently, Employer A is then contacted by Employer B, who asks that Employer A reconsider giving consent to the issue of a new permit because the former employee's boyfriend is now threatening to leave unless his girlfriend can return to the Cayman Islands and, should this occur, Employer B would then have wasted a significant amount of money in recruiting him.

In other words, Employer B is now being blackmailed by the same expatriate worker into trying to put pressure on Employer A.

To put this situation in context, the following is an excerpt from section 48 of the Cayman Islands' Immigration Law, 2003:

"During the currency of a work permit, the holder of that permit may not change his employer unless (a) the Board 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 Governor".

According to the Immigration Law, the "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 victimized 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.

In the situation recounted above, no "special circumstances" permitting a change of employer during the currency of an existing work permit would exist in the absence of Employer A's consent.

Clearly, something has gone badly adrift in our present work permit system if local employers are now to be blackmailed into surrendering the only right they have in this situation under the law, namely, that of withholding consent to the issue of a new permit for a different employer should they wish to do so.

Perhaps expatriate employees do not fully understand this part of the work permit regulations, or may not even be aware of it in the first place unless and until they fall afoul of it. 

But, of course, ignorance of the law is never an excuse.

On the other hand, perhaps the Immigration Department and/or Work Permit Board are guilty of being too free and easy with regard to applications failing to be dealt with under this section, as indeed we commented upon in these columns just recently.

Either way, the situation needs to be corrected.

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