Despite a guilty plea in Magistrates Court by an employer who admitted that he failed to provide health insurance for his staff, the employee who launched the case has yet to have his day in Bermuda’s Civil Court.
Bermudian Brandon Thompson, 51, (pictured above) was one of eight staff employed by businessman Harold Darrell at Designer Flowers, which is now in liquidation.
Mr Darrell entered guilty pleas in Magistrates Court in October 2014 to failing to provide health insurance, and failing to notify his staff that they didn’t have insurance between March 31, 2011 to July 11, 2013.
In all, eight employees and their spouses were affected. He was fined a total of $800 for the two offences by Magistrate Khamisi Tokunbo.
The case ended up in Magistrates Court when Mr Thompson launched Civil Court proceedings for the recovery of damages as a result of Mr Darrell’s actions.
To date, he has appeared in Civil Court nine times since he filed proceedings in 2013. His trial is set down for trial in August 2015.
In all, he is looking to recover more than $20,000 in deductions taken out of his pay that was not paid to the relevant insurers and pension overseers by his former employer.
In a letter dated July 5, 2013, the Bermuda Health Council (BHeC) responded Mr Thompson’s request regarding his former employer’s obligations, and his entitlement to damages under Bermuda’s Health Insurance Act 1970.
Sections 20(1) and 25(1) of the Act stipulates “an employer is to provide a contract of health insurance with a licensed insurer providing no less than the Standard Hospital Benefit for all employees and their unemployed spouse”. The Act requirements also cover “any regulations made thereunder relating to the payment of premiums and submission of records”.
Employers who have “failed or neglected to effect any contract of health insurance which he is required to effect”, are also covered. And any person who “has lost any benefit to which he would have been entitled if such failure or neglect had not occurred”, is “entitled to recover from the employer before a court of summary jurisdiction as a civil debt a sum to the amount of benefit so lost”.
Once the BHeC investigated Mr Thompson’s complaint the BHeC confirmed that he was insured by Colonial Medical Insurance “as an employee of Designer Flowers” under a group health insurance policy.
According to the BHeC: “The policy was in effect between 28th August 2010 and 31st March 2011” and included “both the basic package of health benefits (Standard Hospital Benefit) and supplemental benefits (major medical benefits)”.
BHeC records confirm “Designer Flowers did not have an active policy of health insurance for its employees from the date of termination from Colonial Medical Insurance Co Ltd (31st March 2011) until the drafting of this letter”.
The BHeC clearly states “that premiums were consistently deducted” from Mr Thompson’s “pay during the period of non-coverage”. The BHeC also confirmed they “requested that the Department of Social Insurance (DOSI) inspect Designer Flowers employment and financial records. DOSI inspectors were unable to investigate Designer Flowers records in spite of several attempts to do so”.
Mr Thompson provided his pay stubs to the BHeC and was told those stubs “indicate that from the termination of the company’s group health insurance policy with Colonial Medical on 31st March 2011 until the conclusion of his employment on 25th April, 2013 – $73.97 was consistently deducted” from his pay on a weekly basis for health insurance premiums”.
The BHeC also noted that they were “unable to confirm evidence that these deductions were being paid to an approved insurer”. The BHeC further stated that Mr Thompson “worked a total of 107 weeks” and that $7,914.79 was deducted from his pay between April 1 2011 to April 25 2013.
The letter continued: “Based on the Standard Premium Rate for the Standard Hospital Benefit for the same period, which does not take into consideration supplemental benefits, the total amount that should have been deducted from your pay in respect of the standard hospital benefit was $2,915.37.
The BHeC also noted that they were “unable to confirm an accurate account of the number of days worked as DOSI was unable to complete its inspection”.
Mr Thompson obtained further information from DOSI in the form of a list of Outsanding Social Insurance owed by Designer Flowers, to the tune of $7,716.90 between 2010 to April 2013. He was also advised that the DOSI was “in the process of taking legal action against Designer Flowers”.
The BHeC case against Designer Flowers was launched in 2013, and dealt with in October 2014. To date, no case has been pursued by either the Pension Commission or the Department of Social Insurance.
Mr Thompson pinned down deductions taken out of his pay that was never paid to the Pension Commission or DOSI. The Commission calculated “outstanding pension contributions due from Designer Flowers Ltd to former plan members totalled $37,959.20”.
In a letter dated August 13, 2014 regarding Designer Flowers in Provisional Liquidation the Pension Commission confirmed deductions were taken out of the cheques of three employees by the employer, including Mr Thompson’s earnings.
The letter states: “Brandon Thompson was hired 28th August 2010 and terminated 6th June 2014 when the company ceased to operate and according to Mr Thompson, contributions were deducted.
“The Commission calculated he met all the eligibility requirements from December 2010 and terminated June 2014 when the company ceased.”
Between December 2010 through to December 2013, $10,656.00 was taken out of Mr Thompson’s earnings and never paid. Another $1,520.00 was deducted from January through to June 2014, bringing the total to $12,176.00.
Said the Commission: “On several occasions the Commission requested meetings with Mr Darrell along with other directors and officials however, we were unsuccessful. The Commission did meet with attorney Mr Jaymo Durham as well as the office manager, Mr Kenneth Dill.
“It is to be noted, the Commission did not see any payroll data and information contained in this report is based on the information received from the former members and copies are attached. Finally, the Commission is aware there is a court case pending which was taken out by Mr Thompson.”
Another letter dated October 2, 2014 from BF&M Insurance Group confirmed that Designer Flowers had “an active pension plan administered by BF&M” that commenced on February 1, 2000. The “last remittance for this policy was received on May 2, 2011”.
That letter states: “Since inception, this plan has enrolled seven members, five of which have since terminated at various dates and two which are still showing as active. This contribution was applied to the group members in accordance with the contribution breakdown submitted by the employer.”
The letter also confirmed that Mr Thompson wa “indeed eligible to be in enrolled on this plan as per the National Pension Scheme (Occupational Pensions) Act 1998”. It was also noted that “BF&M has not received a pension plan enrollment for him nor any effective contributions toward his plan benefit during his employment with Designer Flowers”.
In documents provided to Bermuda Real, Mr Thompson said: “This case only brought about through details provided by myself to the BHeC at great risk to my employment and future employment.”
“I took out a civil suit action against Mr Darrell on June 14, 2013 while dealing with the retrieval of monies garnished from my pay cheque which were supposed to go towards my health insurance, occupational pension and my social insurance policies.”
“The BHeC also concluded that I was owed a total of $7,914.79 based on the Standard Premium Rate for the Standard Hospital Benefit for the period March 31, 2011 to April 25, 2013 which does not take into consideration supplemental benefits, the total amount that should have been deducted from my pay in respect of the standard hospital benefit was $2,915.37.
“They [BHeC] further stated that “the pay stubs which I provided indicated that from the termination of my health insurance policy with Colonial Medical on 31 March 2011 until the conclusion of my employment on 25 April, 2013, ($73.97) was consistently deducted from my pay on a weekly basis for health insurance premiums.
“The BHeC was unable to confirm evidence that these deductions were being paid to an approved insurer and that I had health insurance coverage at the time. I worked a total of 107 weeks amounting to $7,914.79.”
Since July 12, 2013, the date of his “first court appearance for mention until…November 21, 2014, which to his understanding was to be a trial, the case was set back to August 3, 2015.
In all he says he has been through nine court appearances for mention, something he said was “totally ridiculous”, especially now that Designer Flowers “has closed and is in liquidation”.
Said Mr Thompson: “That’s something which I stated was going to happen in my first court appearance.” He also took issue with money “garnished” from his pay weekly that “was never submitted into the Government Department of Social Insurance.
From November 8, 2010 until July 25, 2013, he said DOSI confirmed an outstanding balance of $7,716.90 owed by Designer Flowers “has still not been paid”, not to mention another $12,176.00 deducted for occupational pension.
He is also claiming another $7,914.79 in health insurance premiums, plus $554.00 in dental fees incurred when Mr Thompson discovered the group health insurance he was paying for – he didn’t have.
Including court fees and other expenses he is claiming a total of $24,714.63. And he maintains that he has “all the pertinent documents from the necessary Government Departments” to support his case.
“I find it difficult to believe that a case filed two years ago, has yet to be heard in the Civil Court – that’s unbelievable. All those mentions were a waste of time!
“What good are Government Departments that have no teeth and only find out about an employer’s abuses after an employee has to expose his or her employer themselves, putting their employment and future employment at risk,” said Mr Thompson.
“Rarely have I seen or heard about any businesses being brought to justice dealing with circumstances like mine, even though everyone in Bermuda knows there are many businesses ignoring the laws in this manner. Where is justice? SLEEPING! Or maybe it is just for the privileged few. ”
He suggested that perhaps it is time to “turn this case into a public forum concerning private businesses illegal practices, privatization, the Sage Recommendations, the ineffectiveness of some Government Departments and the Justice System’s untimely response to any infractions of the laws committed against employees by private business employers.
Said Mr Thompson: “I wonder why the Attorney General’s Office seems to be reluctant in prosecuting these types of cases. The victims should not have to wait 5, 10, 15 or 20 years to get a result!”
He reported his case to the Pension Commission on April 12, 2012, informing them that “contributions were being deducted from his salary but not paid to a pension fund in accordance with the Act”.
Nearly two years later, on June 20, 2014, the Commission also “received notification from the Official Receiver stating an Order was made by the Supreme Court on 6 June 2014 to place the company in provisional liquidation”.
The Commission also notified Mr Thompson on July 4, 2014 that there were “outstanding pension contributions due” to him and two other employees. Collectively, the total due for three employees was listed as $37,959.20. The dates for nonpayment by the florist date back to 2003 through to June 2014.
Mr Thompson was hired by Designer Flowers on August 28, 2010, and terminated on June 6, 2014 “when the company ceased”. The Commission verified that pension contributions were deducted from his pay from December 2010 and terminated when the company ceased.
In all, the funds deducted amounted to $10,656.00 from December 2010 to December 2013, with another $1,520.00 deducted in six months from January to June 2014 – a total of $12.176.00.
The Commission also stated that the employer was “in violation” of the National Pension Scheme (occupational Pensions) Act 1998. Section 67(4) of the Act carries a penalty “on conviction by a court of summary jurisdiction, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding twelve months or to both such fine and imprisonment”.
To date, no case has been launched against Designer Flowers or Mr Darrell by DOSI or the Pension Commssion.
By Ceola Wilson