Charges filed too late, magistrate rules
Charges against a construction company for failing to pay overtime to more than 100 employees were dismissed Monday after Magistrate Angelyn Hernandez ruled that the Department of Labour and Pensions had not brought the charges within the six-month period required by law.
Island Builders Ltd. had been charged with 107 counts of failing to comply with the Labour Law by not paying overtime – at least one-and-one-half times an employee’s basic hourly wage per hour after the standard work week or work day.
An informal check of the individual charges showed amounts allegedly owed ranging from $20 to more than $5,000. One employee claimed overtime between Jan. 20, 2011 and Feb. 26, 2013; the others were between June 27, 2012 and Jan. 1, 2013.
The charges were filed on March 24 and 27, 2014. The question was: When did evidence sufficient to justify proceedings come to the knowledge of a competent complainant?
The magistrate first determined that the competent complainant for the Labour Law is the director of Labour and Pensions. The law states that the director is charged with securing the proper observance of the law, whether or not a complaint has been filed. Further, the director, deputy director or any labor inspector may institute criminal proceedings for any offense under the law.
One case involved a single employee and one case involved 106 employees.
In the case of the single employee, he came to the department with a query about his overtime on Sept. 17, 2013. On Sept. 20, 2013, a person from the department spoke with the employee and advice was given. “It is the court’s view that, irrespective of the client’s wish, knowledge was brought to the attention of the department, of such nature which would have indicated that there was a breach of the Labour Law,” the magistrate said.
The employee brought his pay stubs in on Oct. 23, 2013. The charge was laid on March 27, 2014.
Magistrate Hernandez said it was not necessary for the department to wait for the pay stubs to be brought in. “As long as the department was given information of a breach, then they must act quickly to enforce the law,” she said, adding that there was sufficient knowledge of a breach at least from Sept. 30, 2013.
Even with the pay stubs, the department did not act quickly enough, she said.
In the case involving 106 employees, late information provided to the court showed that the department had started an audit of the company in February 2013 and not in October 2013. It appeared that the department had information sufficient to commence proceedings from at least 12 months prior to March 2014, when the charges were laid.
Therefore, the magistrate also dismissed these charges because of the six-month time limit required by law for matters that can be tried only in Summary Court.
“It is evident from these matters that the department requires a complete re-education of its responsibilities and its obligations under the Law,” the magistrate said. “These are matters triable summarily [in Summary Court only], and it is incumbent on the department to act quickly and efficiently in laying charges once it has evidence sufficient to commence proceedings.
“The distinction of this standard, as opposed to the standard of evidence sufficient to get a conviction, must be understood,” she pointed out.
“I am well aware that there are a significant number of employees affected, but justice requires that the court enforces the law equitably, and unfortunately, in this instance, the charges were not laid by the department within the six months legislated,” she concluded. On behalf of the defendant company, attorney Guy Dilliway-Parry applied for costs. The magistrate agreed for costs to be taxed. Crown counsel Greg Walcolm gave notice of appeal.
“It is evident from these matters that the department requires a complete re-education of its responsibilities and its obligations under the law.”
ANGELYN HERNANDEZ, magistrate