Employer fined for not answering pension correspondence

A director of a construction company has discovered the cost of not replying to correspondence from government agencies.  

Clive Wesley Smith of A and C Construction was fined $350 last week for failing to provide information required by the superintendent of pensions, although the court heard he had made the pension payments required of him. 

He was also fined another $350 for failing to comply with a remedial notice from the office of the director of the Department of Labour and Pensions. 

Charges date back to 2006 and 2008  

The charge relating to pensions dated from 2008, while the remedial notice charge was from 2006. Because they were two separate matters, it was uncertain how many times Mr. Smith had come to court in total; a rough count by the Caymanian Compass indicates that Mr. Smith and/or his attorney attended court between 40 and 50 times. 

Crown Counsel Kenneth Ferguson told Magistrate Grace Donalds that a more serious charge of failing to make pension payments for an employee was withdrawn and dismissed in January this year. 

He explained that a former employee of the company had made complaints to the National Pensions Office in May 2008, which prompted the superintendent to contact Mr. Smith as a shareholder of the company. “On several occasions, he chose to ignore the correspondence,” Mr. Ferguson said. 

The pensions office eventually issued a final notice to A and C construction regarding the calculation of money the company allegedly owed. The deadline passed and the request was ignored, so the charge was laid. 

Attorney Morris Garcia said it was not so much a question of Mr. Smith ignoring the requests, but he was undergoing certain personal issues at the time which prevented him from devoting the requisite attention to such matters. As a result, he missed the deadline. By the time he was able to get around to dealing with it, steps had been taken to have it proceed through the courts. 

“To his credit, it must be said there were subsequent requests for information and he assisted and complied by providing information to the extent that they were able to review that information and make a determination which resulted in the withdrawal of some of the offenses he was charged with,” Mr. Garcia said. 

In fact, records show that Mr. Garcia provided documents to the crown in May and September 2012. On January 9, 2014, Mr. Ferguson told Magistrate Valdis Foldats that he was grateful to the pensions office staff, who found out through the pension provider that pension payments were in fact made. 

No payments due to seasonal work 

“The periods for which no payments were made was when there was no work, because it is seasonal in nature,” Mr. Ferguson explained. 

The magistrate then dismissed the failure to pay charge against the company and Mr. Smith personally, but that left the other matters. 

When Mr. Smith and Mr. Garcia returned to court last week, they dealt with the remaining charges. 

Senior crown counsel Nicole Petit outlined the charge of failing to comply with a remedial notice following a site visit by a health and safety inspector from the Department of Labour and Pensions in 2006.  

Potential hazards 

The inspector had visited a building under construction in George Town and taken photographs of potential hazards. Subsequently, a notice was sent requiring the hazards to be dealt with by a certain date.  

The notice required the company to make the work path less overcrowded, encircle the work place to prevent unauthorized access and provide adequate protection for workers exposed to height conditions.  

During a follow-up visit, the inspector made the same observations and so the charge was laid. 

Mr. Garcia explained that Mr. Smith knew the man who came to the construction site was an employee of the Labour Department, but did not know he was an inspector. 

Mr. Smith was on the roof of the building trying to finish some decking before rains came down. He asked the inspector for time before coming down, but the man threw some papers on the ground and left. Then, when it rained, the documents got wet.  

“By the time Mr. Smith retrieved them, he couldn’t make heads or tails of the documents,” Mr. Garcia said. 

Pointing to some of the photographs exhibited by the crown, the attorney showed that some men were seen not wearing safety helmets, but at least one of the men was a plumber working for a subcontractor. Mr. Smith admitted that some of his own employees were not wearing helmets, but most of them did. 

Magistrate Donalds asked what is the maximum penalty for failure to comply with a remedial notice. She was told it is a fine of $1,000 plus a further $100 per day of non-compliance. 

On that basis, she imposed the $350 fine. There was no separate penalty for one charge of failing to attend court on a date in 2012.