Charges against two employers dismissed

Court rules charges were filed outside six-month time limit

Charges against two employers were dismissed this week after Magistrate Philippa McFarlane ruled that they were filed too late.  

On Tuesday, she dismissed 38 charges against Front Door Cayman Ltd. for failing to pay overtime to employees at Treasure Island Resort. 

On Wednesday, she dismissed five of six charges against Advance Road Construction & Paving Ltd for failure to pay wages. 

Crown Counsel Kenneth Ferguson referred to the Tuesday ruling in agreeing that the five ARCP charges had been brought out of time. He said the Department of Labour and Pensions will have to start charging employers without negotiating first. The emphasis had been for department officers to attempt to obtain for employees what they were entitled to by law rather than simply seeking a conviction. 

“I think the view is ‘charge and get on with it,’” the magistrate replied. If negotiations are successful, court proceedings will be affected accordingly, she indicated. 

The legal reasons for the rulings were delivered on Tuesday. Defense attorney Nick Hoffman had argued that the charges against Front Door Cayman Ltd. were “statute barred” because they were not laid within the required six-month period. Crown Counsel Greg Walcolm responded. 

The charges were brought under the Labour Law and involved offenses that are summary only. That means they should be laid within six months from the date on which evidence sufficient to justify proceedings came to the knowledge of a competent complainant. 

The magistrate explained what is meant by “competent complainant” and then what is meant by “evidence sufficient to justify proceedings.” 

A competent complainant is a person with the expertise and experience to make a proper assessment about whether there is sufficient evidence to justify proceedings. Usually, she noted, the competent complainant is a police or other law enforcement officer from an independent investigative authority. 

In the case of Labour Law infractions, the competent complainant can be none other than the inspectors or agents of the Department of Labour and Pensions because they are the ones charged with enforcement of the law.  

The magistrate accepted Mr. Walcolm’s submission that the labor inspector had to undertake a detailed review of the evidence because there are more than one sections of the Labour Law dealing with overtime. But she did not accept that the inspector was incapable of forming a proper view of whether the evidence was sufficient to bring charges in the absence of employees’ contracts or time sheet records. 

She said there is a difference between sufficient evidence to justify the start of proceedings and evidence that is sufficient to found a conviction. 

“The Department of Labour and Pensions should ensure that immediate efforts are made to ensure that charges in summary only matters are laid without delay once it has formed the view that there are reasonable and probable grounds for believing that a potential defendant has committed an offense.  

“Moreover, the Department of Labour and Pensions should also ensure that its inspectors understand the distinction to be drawn between evidence which is sufficient to justify the commencement of proceedings, as opposed to evidence which is sufficient to found a conviction,” she said. 

The charges against Front Door Cayman Ltd. related to a period between Jan. 1, 2012 and Jan. 14, 2014. The charges were laid on July 24, 2014. 

The alleged overtime due totaled US$25,204.49. Claims for 15 employees were under $100. Claims for 17 employees were between $100 and $900. Six others were for over $1,000. 

In the case of Advanced Road Construction & Paving Ltd, defense attorney Clyde Allen had also argued that the charges were brought out of time. 

The six charges against the company were filed on May 6, 2014, based on employee statements made in September, October and November 2013. Only the charge relating to the November complaint was in time, Mr. Ferguson said. 

Mr. Allen submitted that the date of the complainant’s knowledge was prior to the written statement because discussions had taken place between the department and the company before then. This narrow issue is to be argued on Feb. 5. 

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