• Firms ‘can’t lawfully contract out’ of law’s provisions
• Minimum wage security guard wins nearly $11,000
By NEIL HARTNELL
Tribune Business Editor
A minimum wage security guard has been awarded nearly $11,000 after the Industrial Tribunal ruled that companies and their employees “cannot lawfully contract out” of paying overtime rates.
Simone Fitzcharles, the Tribunal’s vice-president, in an October 1, 2021, ruling thus awarded former Westech International Security employee, Jason Tynes, some $10,903 representing five years’ worth of overtime pay for the period 2014 to 2018.
In a ruling that will impact Bahamian companies who have contracted with their employees to pay regular rates, and not overtime’s “time-and-a-half”, for hours worked beyond a 40-hour week, Ms Fitzcharles ruled that the Employment Act’s statute law provisions override all such agreements.
She found that Westech “held all the winning cards” when it came to hiring security guards, as it could easily find replacements for persons who declined to sign contracts where it was stipulated that “the company does not pay overtime” to employees who work more than 40 hours per week.
Mr Tynes exposed the vulnerability of low-paid Bahamian workers such as himself when, during testimony before the Industrial Tribunal, he described security guards as “expendable. A dime a dozen. We could easily be replaced”.
Westech, which was represented by its principal, Christopher Washington Adderley, before the Industrial Tribunal, argued that its staff who worked additional hours were gaining extra economic benefits albeit at ordinary rates of pay rather than the “time-and-a-half” stipulated by the Employment Act’s provisions.
The Industrial Tribunal vice-president, though, dismissed this as “a false economy” because Westech was able to dictate terms to Bahamians desperate for any kind of work. She added that it received the benefit of Mr Tynes’ 12-hour shifts at the Airport Industrial Park and, via this arrangement, was able to save itself having to hire and pay another security guard to cover those hours.
Detailing the background to the dispute, Ms Fitzcharles said Mr Tynes was hired at the minimum wage of $210 per week in late 2013. He was paid at regular salary rates, of $5.25 per hour, for all overtime and work performed on public holidays.
The security guard, though, kept all 74 original pay slips received from Westech. Sharon Toote, the company’s human resources manager, confirmed that they were genuine and showed that Mr Tynes had not been paid the legal overtime rate as set out in the Employment Act.
Westech’s defence sought to undermine Mr Tynes’ credibility, citing a car accident and claiming that he committed “multiple gross misconduct, gross insubordination, gross insolence, sleeping on the job and abandonment of post” to justify his summary dismissal from the company.
However, Mr Tynes countered that his last supervisor had “a vendetta against him”, but did not contest his dismissal. And Ms Fitzcharles agreed that the sole issue for determination was whether overtime pay was due to him.
The company also suggested that Mr Tynes wanted to work at the Airport Industrial Park because that facility paid security guards a bonus, and that removed any obligation to pay legally-mandated overtime pay. However, the security guard said such a bonus was only paid by the Park for two of the five years he was there.
Westech’s code of conduct and company policies, which it required all security guards to sign before they can get the job, stipulated that hours worked beyond the 40-hour week “will not be considered overtime” and “the company does not pay overtime”.
When asked by Mr Adderley at trial why he did not complain about the absence of overtime pay while at Westech, Mr Tynes replied: “If you want a job, you have to go along with it whether you like it or not. Security officers were expendable. A dime a dozen. We could easily be replaced.”
Ms Fitzcharles, while acknowledging the principles of freedom of contract, added that this concept did not operate “unfettered” under the law. “This case is about whether that principle of freedom of contract is so restrained when it meets and competes with the protection afforded Bahamian employees in the right to overtime pay prescribed by the Employment Act,” she added.
The Employment Act’s section eight, the Industrial Tribunal vice-chair noted, stipulated that no employer could require an employee to work in excess of eight hours per day, or 40 hours per week, without paying overtime.
And, where workers are “required or permitted” to work in excess of the standard hours of work, their rate of pay is to be “one-and-one-half times their regular rate of pay. Ms Fitzcharles said the language clearly showed Bahamian employers are legally bound to pay overtime even when workers request extra hours.
“The public policy implications are also clear,” the Industrial Tribunal vice-president ruled. “The statute is meant to provide minimum standards which are applicable to employers and employees. In relation to overtime pay provisions, this means no employer can contract to pay an employee less than the prescribed amount for overtime hours worked.
“The public policy implication is also that the employee cannot contract to receive less for the erosion of the mandatory provision would be at stake and, if upheld by the courts, the relevant sections could be ignored and the intended protections would suffer.”
Noting that minimum wage employees, and low-skilled workers, are often “bargaining from a position of weakness”, Ms Fitzcharles added that Parliament “must have foreseen the budding mischief”.
She said: “Workers with minimal education and skills, or persons who may be desperate for work whether caused by general economic hard times or the immediacy of their need to earn because of familial obligations, to name a few, would be particularly susceptible to falling into a situation where they may accept any work on any terms.”
Dismissing Westech’s arguments about the benefits security guards gained from working extra hours at regular pay, Ms Fitzcharles added that the company “dictated employment terms to Mr Tynes on a take it or leave it basis”, received the benefits of the extra hours he worked, and did not have to hire an additional security guard to cover the Airport Industrial Park as a result.
“The Tribunal finds that the parties could not lawfully contract out of paying the correct rates of overtime pay to Mr Tynes for the overtime hours he worked as shown by the Westech-generated pay slips,” she ruled. “The policy in the [company’s] Code that it does not pay overtime to employees is therefore not enforceable.”