Employer pays compensation, no conviction recorded

An accounting error led to charges against Burns Conolly Group Ltd. and its owner, architect Burns Conolly, attorney Michael Alberga said in court Tuesday.

The error was the deduction of $714.42 from an employee’s pay for medical insurance over three months, which had not been paid to the insurance provider.

After hearing submissions from him and senior Crown counsel Tricia Hutchinson, Magistrate Angelyn Hernandez brought the matter to an end. Mr. Alberga had brought a check payable to the former employee, and the magistrate directed that it be handed over and a signed copy be retained for the records.

She then released all witnesses who were present for a trial. There were seven, including the complainant.

Mr. Conolly had appeared in court in July 2015, when he pleaded not guilty to failure to effect and continue a standard health insurance contract, and unlawful deductions by an employer. At the time, defense attorney Charmaine Richter advised that she wanted to make submissions on a legal point. The magistrate then sitting suggested that she let the Crown know the basis of her submissions in writing.

Ms. Richter appeared with Mr. Alberga on Tuesday, but the defendant was not present.

Mr. Alberga told the court that his client was not well and that the Burns Conolly Group was no longer operational. He noted that a check had been sent last year to reimburse the employee, but someone in the Legal Department had sent it back.

He turned to the legal point in the case – that the charges were statute-barred, as they had not been brought within a six-month period after a complainant – in this case, someone from the Health Insurance Commission – received sufficient information to lay a charge.

He said the employee complained in September 2013, but the matter was not brought to the attention of Mr. Conolly until May 2014. He agreed that the charges were Category B and could be tried in

Summary Court or Grand Court. He said the six-month limitation refers to Summary Court matters and that the offenses were pleaded to Summary Court.

Ms. Hutchinson did not agree, pointing out that the charges were electable – that they could be tried in either court. She referred to a similar case that had gone to Grand Court. She said the matter had been reviewed and was not one in which the unusual step of withdrawing the charges should be taken. She said payment of compensation should be part of mitigation before sentencing.

The magistrate pointed out that the Crown had taken a different approach in many similar cases. “We do have cases that have gone on for years,” she said.

The magistrate indicated she was not necessarily agreeing with the “statute-barred” argument. “I do, however, see no purpose in proceeding where the defense indicates willingness to pay and [the offense] was due to an accounting error.”

She added that the law was meant for the benefit of employees, who had a right to their earnings apart from legal deductions. Mr. Alberga said, “The end result is good. Justice is served.”

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