Dispute over permit penalty

A complaint filed recently with Caymanian labour and immigration authorities has raised the issue of whether employers can penalise workers who leave their jobs without fulfilling the entire term of their work permit.

Americans Cathy and Brad Kimball had both worked in Cayman since December 2006, until they abruptly quit their jobs on 21 July of this year. The married couple said they were worried about a hurricane hitting the island and wanted to go back home as soon as possible.

The Kimball’s admit they gave only 24 hours notice before leaving their respective employers, the names of which the Caymanian Compass is not revealing because labour complaints are still pending. Cathy Kimball said she never had a problem with her or her husband’s employer until the day the two quit.

The couple had a total of $633 docked from their paycheques for failing to complete the full terms of their work permits. Cathy’s permit would have expired this November; Brad’s was to have expired in December.

Their employers told them the payments were to make up for the unexpired terms of their work permits. Any company in the Cayman Islands that hires foreign workers must pay varying sums of money for either six-month, one-year or multi-year work permits, which allow those people to legally reside here.

In this case, employment contracts, which the Kimball’s both signed when they came to the island, expressly stated that workers must agree to complete the entire term of their most recent work permit.

‘Uncompleted permits are subject to a penalty of up to two weeks’ wages (maximum of $500),’ read a copy of one of the contracts obtained by the Caymanian Compass.

According to section 55 (3) of the Cayman Islands Immigration Law (2007 Revision), work permit fees are to be paid at all times by the employer. It is an offence to: ‘seek or receive from any such worker any moneys or other compensation or benefit as reimbursement of, or contribution towards (referring to permit fees); or to make any deduction from any remuneration due by him to any worker on account of, or in respect of, those fees.’

Chief Immigration Officer Franz Manderson said permit fees can be partly refunded by government, provided the worker leaves a job with at least six months left on a permit. If, as in the case of the Kimball’s, they leave with less than six months on their permit, no refund is available through government.

The situation highlights an issue that has long concerned companies in the Cayman Islands, particularly those in the service and tourism industries.

Businesses spend time and money recruiting, hiring, training and moving foreign employees only to have them jump ship in the middle of a contract, either to leave the island or work for another local company.

Rod McDowall, the operations manager for a prominent dive and tour boat company on island, said during an interview with the Compass that he was advised by local labour officials to put a work permit ‘penalty clause’ in his company’s contracts to protect against ‘job swapping.’

‘We have been burned so often with individuals that come down, get a job…under the auspices that they will be working for a contracted period….then all of a sudden pack up and want to go somewhere else,’ Mr. McDowall said. ‘The grass is always greener, and I have no issue with that, but the difference is the vast majority of those individuals have fulfilled their contracts; some haven’t.’

Mr. McDowall estimated that it takes his dive instructors somewhere between two and three months to learn their way around local sites and get up to speed with other company job requirements.

He said it was not company policy to penalise people who give adequate leave notice before taking another job, or who have to go off island for family issues or personal emergencies even if those people have not fulfilled the entire term of their work permit.

‘If they come to you and give you advance notice that they’re looking at something like that, I’m more than happy to help,’ Mr. McDowall said.

It is ultimately unclear at this point whether such penalty clauses in employment contracts fall under Immigration Law prohibitions against employees paying for work permits. The Kimball’s said they have filed complaints in their specific cases, but have not heard anything back as yet.

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