After he was able to demonstrate to the court that he had worked for Toolsie Persaud Limited (TPL) for a number of years and that contributions had been taken from his salary for social security, High Court Judge Damone Younge on Monday ruled that the National Insurance Scheme (NIS) must pay old age pension to 60-year-old Shariff Zainul.
In the case he filed against NIS, former TPL carpenter Zainul said that he was employed in an insurable capacity constantly from 1969 to 2001 and that he had made more than 750 such contributions, making him eligible for the NIS old age pension.
He said that on attaining the age of 60 he made an application to NIS for the payment of his old age pension but was informed by the agency that he did not qualify for the payment of pension because he did not have sufficient contributions. He said he was informed further that there was no record of any contributions for him for the period 1992 to 2000 and that he had amassed only 374 contributions which entitled him to the payment of an old age grant.
Zainul said that he appealed to the Appeal Tribunal against NIS’s decision not to pay him a pension and was advised by NIS to obtain his record of employment from TPL.
His attempts to do this proved futile. He was then advised to obtain testimonies from two of his former work colleagues who would have worked with him during the unaccounted-for period of his employment. To this end, he obtained a letter from the former Personnel Officer of TPL, Krishendatt Sahadeo, and statutory declarations from two former employees of the company, attesting to the fact that he was an employee for the years in question.
Pay slips from TPL evidencing NIS deductions for the years 1993, 1994, 1995, 1996, 1997, and 1998 were also submitted. He states that he submitted same to the Tribunal but was informed orally that his appeal was still unsuccessful. No reasons for the Tribunal’s decision were provided to him, but he was told that his total contributions had been updated to 453 contributions.
In her ruling, Justice Younge declared that the letter submitted by Zainul’s former Personnel Officer at TPL, Sahadeo substantiating that he worked with the company from May 4, 1992, to December 31, 2000, is “good and sufficient proof of his employment there”.
Also, she declared that statutory declarations dated May 7, 2019, from two former employees of the company, Surjupaul Danpaul and Kenneth Gordon “attesting” that Zainul worked there from 1992 to 2000 were also “good and sufficient evidence” that he was employed there.
Considering this, Justice Younge ruled that Zainul was entitled to be credited the 354 contributions for that period which TPL failed to remit his contributions to NIS as the company is required to do so under the law and therefore found that he qualified for NIS pension.
“The applicant [Zainul] should not be made to suffer for failure of NIS and TPL to reconcile their records or to have an accurate record of the contributions made by the applicant, for the failure of TPL to pay over the applicant’s contributions made by the applicant, or for the failure of TPL to pay over the applicant’s contributions to the respondent,” the Judge said.
The Judge expressed that she finds it disturbing that NIS, despite being empowered to do so, does not take a more robust approach to ensuring that employers comply with the law as it relates to the deduction and payment of NIS contributions on behalf of their employees. Instead, she said NIS seemingly allows employees to flout the law to the detriment of the employees.
In the end, the Judge granted an order for NIS to forthwith pay Zainul his old age pension effective October 16, 2011, the date of his 60th birthday. She further ordered that there be interest on Zainul’s arrears of pension due calculated at the rate of six per cent per annum from October 16, 2023, to November 27, 2023, the date of judgement, and thereafter at a rate of four per cent per annum until fully paid. It was also ordered that the sum received by him as old age grants be deducted from his arrears of pension. Zainul was awarded $150,000 as costs.
NIS has to pay him these costs on or before December 29.
Attorneys-at-Law Christopher Ram and Christopher Thompson represented the pensioner.
