Employer fined $6,250 and must pay $4,574 for pensions
Employer Errol Washington Simms was sentenced in Summary Court last week Monday, two and a half years after he pleaded guilty to failing to contribute to a pension plan for three employees. Magistrate Nova Hall fined him $6,250 for a total of five offences and emphasised he was still obligated to pay the pension contributions, which amounted to $4,574.54.
Before sentencing took place, Mr. Simms told the court, “I want to work out a payment plan.” He said he had gone to the pensions office that morning before court to try to speak to the manager and ask what he could say to the court. The person he talked to said he would send an e-mail to the Crown, Mr. Simms asserted.
Crown Counsel Kenneth Ferguson said no communication had been received.
“We’ve been doing this dance for months,” the magistrate told Mr. Simms. “We never get anything concrete.”
She pointed out that he had pleaded guilty to five charges in December 2008 and his files had been coming back to court regularly since April 2009. The magistrate said she kept putting off sentence in the hope that he would do something significant about payment.
The failure to pay pension contributions occurred between December 2005 and July 2007 for one employee and periods in 2006 for two others. Other offences related to a failure to provide information to the superintendent of the National Pension Plan and then failing to pay the contributions within the time allowed by the superintendent.
The magistrate asked what efforts Mr. Simms had made. He said there was an agreement that he would pay $200 a month, but he wasn’t working at the time. “I thought I would get a contract and pay everything, but things just got bad.” He said he never got a job until September 2010. “I went to them and said this is what I get per fortnight…I’m willing to pay,” he repeated.
The magistrate said she wasn’t adjourning the matter any more without good reason and the defendant had not given her one.
Court records show that, after the guilty plea in 2008, sentencing was postponed until January 2009. The it was postponed again and in April 2009 the defendant was said to be in discussion with the pension office. The matter returned to court periodically and in December 2010 an attorney came on record for Mr. Simms. In April this year the attorney was allowed to come off record.
Mr. Ferguson provided background to the charges, noting that the defendant did business as JamCay Cabinets. He did not keep business records and paid employees in cash. One of the employees made a report to the pensions office and his complaint was investigated. An officer contacted all pension providers on Island and was told neither Mr. Simms nor JamCay Cabinets was an enrolled customer.
The amount of pension that should have been contributed was calculated after a former employee provided information as to rates of pay.
The magistrate said she was taking a practical approach. “I am less interested in his going to jail than I am in getting the pensions paid so that workers get what they are entitled to,” she explained.
For the three counts of failing to make a pension contribution for an employee, she imposed fines of $1,500 each. The maximum fine in Summary Court for this offence is $5,000.
For failing without reasonable cause to supply information requested by the pension superintendent, the fine was $750. The magistrate said this offence cause the court great grievance because a lot of problems could be avoided “if persons acted in a timely manner to do what they are asked to do.”
For failing to pay arrears within the time given by the superintendent, the fine was $1,000. The magistrate pointed out that the law allows the court to impose a fine of $500 per day for the time payment is not made.
Mr. Simms was given six months to pay.
When he indicated he did not have the money and times were hard, the magistrate suggested he check with his bank.
“Times are hard,” she agreed. “They are hard for everybody. Think of the people who are waiting for their money.”
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