Employee status at centre of court battle over deductions

Tanesha Mundle/Staff Reporter

A former Marksman Limited contracted security guard who had worked there for 11 years testified on Tuesday that he had authorised the company yearly to make statutory deductions from his earnings and to pay it over to the relevant state organisations and was aware that he was not entitled to the employer’s portion as he was not an employee.

Marksman is being sued by the National Housing Trust (NHT) in the Revenue Court where the Trust is seeking to recover approximately $806 million in outstanding employer contributions, including interest, for the period 2000-2016.

The Trust is also seeking several declarations, including that the security company was an employer under the NHT Act and is liable to pay the relevant contribution.

During the second day of the trial, which started on Monday, the ex-security guard told the court via video link that he had authorised the company to calculate and make statutory deductions from his earnings and to remit them on his behalf.

The company had deducted three per cent.

He also recalled that he had acknowledged in the same letter that he would have “to comply with the statutory requirements concerning taxes and other obligations as a self-employed person and that my possible engagement will not entitle me the benefit of an employer”.

The witness, who had been working with the company since December 2005, further told the court that during his tenure, he had never written a letter of complaint to the company regarding the non-payment of the employer’s contribution.

The witness also testified that during the exercise of his duties, he would take instructions from third-party representatives and had agreed to contractual terms to obey all lawful and reasonable instructions.

He also testified that he had received periodical training from the company.

The ex-Marksman guard is the second witness for the claimant, NHT.

The first witness, Jennifer Gowdie, compliance manager at NHT, testified on Tuesday that based on the contract signed between the workers and the security company, an employer-employee relationship existed based on the control that the company had over the workers in the execution of their duties.

In the meantime, the defendants, who include Robert Epstein, former Marksman managing director, in opening their case on Tuesday, indicated that the principal sum of $406 million being sought by NHT was inaccurate.

Queen's Counsel Walter Scott, who is representing Marksman, told Justice David Batts that he would, among other things, have to carefully consider whether the court ought to grant the declaration being sought given that a party to the contract had not filed a complaint in that court.

Meanwhile, Lieutenant Commander George Overton, security consultant and director of Marksman, the first witness for the defendants, testified that the then finance minister, following a meeting in 1999, had authorised the statutory deductions from the earnings of self-employed workers.

However, the witness said he had no evidence of the minister’s direction, but that there was compliance from security companies.

The director, during his evidence, also agreed that the company had stipulated a number of rules and regulations listed in the guards' contracts that they were duty-bound to follow, including the wearing of uniforms and badges, not leaving their post until officially released, being punctual, and obeying the rules of third-party representatives.

The defence will continue its case today. Three security guards are expected to face the stand.

Queen's Counsel John Vassell, along with attorneys-at-law Trudy-Ann Dixon Frith and Samantha Grant, is representing the NHT.

Dr Lloyd Barnett and Gillian Burgess are representing Epstein, while Deniece Beaumont Walters also appeared for Marksman Limited.

tanesha.mundle@gleanerjm.com