Jamaicans pursue legal action against ex-boss after employment nightmare

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They came to Bermuda for the promise of opportunity and the prospect of earning enough to provide for their families back home, but never in their wildest dreams did four Jamaican guest workers think they would become embroiled in the convoluted and expensive litigation they now find themselves in against the very person who brought them here — their employer.

Those guest workers, Melton Anglin, Dennis Knott, Owen Reid and Albert Rickets claim their employer, Germaine Burt, owner of Burt’s Top Grade Contracting (BTG), grossly mistreated them, violated their civil rights and breached several sections of the Employment Act and Human Rights Act. Now they’re pursuing legal action against Mr Burt and BTG.

Nancy Vieira and Jaymo Durham, the attorneys from Amicus Law who are representing the men, say while there have been several reports in the past of employers mistreating their foreign employees, this is one of the worst cases they’ve ever heard of in Bermuda.

“They shouldn’t be treated the way that they were treated,” said Ms Vieira. “We have laws and legislation to protect our society and when Bermudians feel that they can treat people the way these gentlemen were treated, it’s abysmal.

“I think that we’re going to find that this is one of the worst case-scenarios. I’m not saying that bad things don’t happen, don’t get me wrong, I just don’t think to this extent.”

“The overriding feeling that you get from this case is one that you know is screaming out for justice,” Mr Durham said.

The men presented documentation to The Royal Gazette including a slew of payslips, social insurance records, letters from Immigration and a statement of employment in which Mr Burt wrote they would not receive vacation or sick pay — a contract considered illegal by the Employment Act. They also showed us the letter they received from Mr Burt stating they were being terminated due to “unforeseen business circumstances” and “the uncertainty of immigration”.

“He just handed us this letter and said the company’s closed,” said Mr Anglin who worked as a mason for BTG.

The men claim in all the time they worked for BTG, they never received sick, vacation or holiday pay.

“We asked what happened to our pay. We never got vacation, holiday, sick leave — nothing. We never received it. He told us there’s nothing to get,” Mr Anglin said. “A couple months after I got here, I got my first pay stub. I went to him and said, ‘I don’t understand this — why do you say no sick pay, no holiday, no vacation?’ He turned and said, ‘It doesn’t go for you guys.’ See the pay stubs here — it says no sick pay, no holiday pay, no vacation pay.”

“We saved all our pay stubs,” said Albert Ricketts who worked as a mason for the company. Mr Ricketts was recently in the news after he was conned out of more than $14,000 by a Trinidadian guest worker who posed as a lawyer pretending to help him with immigration and divorce proceeding. “I was working for a big company back home, so when I came here and saw what was happening, I knew that something was not right.”

“We deserve redundancy pay,” said Dennis Knott, another mason with BTG. “Most people would get benefits, but we got nothing.”

“We all know what everyone’s entitled to as a worker in Bermuda, foreign or otherwise, and we can say that was not met,” said Ms Vieira. “These gentlemen never received vacation pay. These gentlemen never received sick pay. These gentlemen never received public holiday pay. These gentlemen were actually deducted monies toward their vacations throughout their employment.”

The men also claim their employer failed to pay their social insurance. Records obtained from the Bermuda Department of Social Insurance show that collectively, hundreds of weeks’ worth of social insurance was not paid on behalf of the men — despite their pay stubs reflecting their employer deducted $30.40 from their pay every week for it.

“What you see on paper here — doesn’t transpire,” he said. “He [Mr Burt] puts everything on pay stubs to make you think this is what you’ve been paid, this is what’s been taken out of your pay. On the real side of it, he’s only putting it here, but it’s not going where it’s supposed to be going.”

The men say their health insurance coverage, like their social insurance, was not always paid and that they only knew if they were covered after going to the doctor and hospital. One of the men, who had an accident and had to go to hospital, later received a bill stating his coverage was not up to date, despite his pay stubs showing deductions for health insurance in the three months leading up to the accident.

“The hospital said it [coverage] was terminated at the end of November. If insurance had been paid in December 2011, it would cover the bill. But he [Mr Burt] collected from us for November, December and January,” Mr Anglin said. “I went to him and we had a heated argument about it. He said you have to pay it and I told him I’m not going to pay it.”

Among the other complaints levied against Mr Burt and BTG is that he made the men pay for their own work permits, their own plane tickets here, and overcharged them for rent.

Payslips from the men show BTG deducted weekly from their pay for rent. The men say they were charged $160 a week each ($640 a month) for a two bedroom, one bathroom home Mr Burt sublet to them. For nearly a year, seven men were living in the apartment together where they claim Mr Burt continued to store his own belongings.

The Royal Gazette was able to confirm with the landlord of the apartment that the rent for the property was $2,200 a month — far less than the $4,480 that was allegedly collected from the construction workers.

The men say after months of having seven of them in the apartment, two of the men moved out. That’s when the rent allegedly went up and the men claim they were each paying $800 a month ($4,000 a month in total). They said the rent fluctuated, going as high as $230 a week per person.

Attorneys for the men allege there were other incidents where Mr Burt profited off of his employees.

“There was an incident where Mr Reid was involved in the erection of scaffolding on a project site and as a result of the weather conditions, the scaffolding happened to fall and it damaged the property owner’s car. Now, Mr Burt deducted from Mr Reid’s paycheque like a thousand dollars for the damage to the car that was covered by a policy of insurance,” Mr Durham said.

“They got paid out by insurance yet they still deducted,” Ms Vieira added.

Mr Burt is also now trying to sue one of the men for what he calls “shoddy work”. Not long after he was laid off, Mr Anglin received a letter from Mr Burt stating he owes BTG $66,000 for his “poor workmanship” on the construction of a porch at the home of Mr Burt’s mother. In the letter, Mr Burt threatens that if Mr Anglin does not call to discuss a payment plan, Mr Burt “will have to take out a summons with the courts on this matter”.

“It’s so petty and it’s so malicious,” said Mr Durham who told The Royal Gazette all of these claims are part of their case against Mr Burt and BTG — a case both the men and their attorneys say is about a lot more than money. They claim the mistreatment went well beyond the financial — that they were treated inhumanely from day one.

The men say when they arrived in Bermuda, they were forced to sleep on cots in the corridor of Mr Burt’s mother’s house and were told if they wanted to use the toilet, they’d have to go outside and around to the bathroom prior to five o’clock in the morning.

They also claim they were forced to work 11-hour shifts, six days a week with no toilets on job sites and were regularly threatened, intimidated and verbally abused.

“Religion was discouraged,” said Ms Vieira. “Religion and attendance at churches was actively discouraged. Relationships with Bermudians were actively discouraged.”

Ms Vieira and Mr Durham say BTG’s workforce predominantly consisted of foreign nationals, mostly Jamaicans. And they say Mr Burt doesn’t seem to have gone out of business as he claimed.

“It’s our understanding that he is still working and still has foreign nationals under permit working for him,” Ms Vieira said. “We’re going to be asking the Department of Immigration to do certain things which will facilitate this not happening to anyone else. It will facilitate Mr Burt not being able to continue in business.”

The Royal Gazette made several attempts to contact Mr Burt for his response but no one answered, nor did anyone return our calls when we left a message requesting comment.

“In our eyes, for Mr Burt, there’s just no defence. He has no defence,” Ms Vieira said. “It’s is very black and white. This is the law and you did not comply and therefore, you owe this.

“We’re hoping that this case allows us to get these gentlemen their basic rights and justice and not only that, but that it establishes where this can’t ever happen again.”

The men said they haven’t spoken out until now because they feared retribution while still employed with the company.

“The types of stuff that they’ve relayed to us indicated that these were gentlemen that were fearful of making any sort of waves and this guy was a guy that used intimidation as standard practice,” Mr Durham said.

“That is the only explanation you can conjure up to explain why they were so complicit. He would say to them stuff like, ‘look, if Immigration ever comes here to investigate me, then I’m closing up shop and you guys are going to be out of a job’.”

The men were initially told to leave Bermuda by the end of April. Letters from Immigration explicitly state Mr Burt is responsible for repatriating the men, but they say he has yet to purchase them a plane ticket back to Jamaica and they don’t have the money to pay for it themselves.

The men and their attorneys hoped Immigration would, at the very least, allow them to remain in Bermuda long enough to see their case go to court. But after putting in applications for permission to reside and seek employment, three of the four men just found out this week Immigration has denied their request and they are to leave the Island by June 29. The fourth man, who has a Bermudian child, has been granted permission to reside and seek employment until August 3, 2012.

“We’re now fighting for them to be allowed to stay in the country,” Ms Vieira said. “Yes, they’re foreign nationals, but they’re foreign nationals that were permitted to reside and work in this country, therefore they have to be protected by our laws. That was not done. And they now have to be given the opportunity to be heard in a court of law.

“Their lives right at this moment are not in our hands, they’re not in the courts’ hands — these four gentlemen’s lives and the life of this case is in the Department of Immigration’s hands as we speak. They have the power.

“These gentlemen, having being so poorly mistreated, are now placed in a position where the Department of Immigration simply says, ‘Oh, unfortunately, you’ve reached your term limits and here’s the door, there’s nothing more we can do for you’. I think that has to leave a bad taste in the public’s mouth,” Mr Durham said.

“The Department of Immigration are in a position where they’re actually an arm of justice because what is required in this circumstance is that a message of deterrence is sent. The Department is in a position to say, ‘You know what? We’re not going to let this happen on our watch and if it does happen, we’re not just going to simply turn a blind eye to it and allow people on our soil to be mistreated’.”

“Not only through the eyes of compassion, but through the eyes of justice,” Ms Vieira added. “It has to be. These are rules and regulations and Bermuda law. It’s black and white. It’s what governs our society and this gentleman has completely and utterly broken the law.”

Ms Vieira and Mr Durham say their clients have the right to request reasons why they were denied permission to reside and seek employment. They say they are in the process of requesting that from Immigration right now. They also say they will be asking Immigration to revoke all existing work permits for BTG and Mr Burt.

“It’s heart wrenching,” Ms Vieira said. “These gentlemen have now been without payment for now three and a half months. They’re literally surviving on the goodwill and compassion of other human beings.

“They can’t just be sat on their hands. They need to provide a roof over their heads, they need to provide food for themselves, and they need to provide for the children that they have been providing for the last six years — their dependents abroad.

“I think what’s more socially important is that they be given the opportunity to experience life and work in Bermuda under conditions that are humane and allow them to have more than just a working existence,” Mr Durham said. “If you come to a place to work, you shouldn’t be basically confined to indentured servitude, essentially.”

Because the men are unable to afford the legal fees, they are trying to obtain legal aid, which will help them pay for it. Ms. Vieira and Mr Durham say that while it’s problematic, if the men don’t receive assistance, they’re prepared to move forward and represent the men pro bono.

“It’s something that I believe we’re prepared to have to do because it’s a matter of public interest. It’s something that needs to be done,” Ms Vieira said. “We have assured our clients that we are not going to leave them in the lurch.”

“As lawyers, there are occasions when your fight is not always the good fight,” Mr Durham said. “This is not one of those. This is pretty black and white and it’s pretty clear and apparent to most people that this is a serious wrong.”

The men say all they want is justice, but that all they can do right now is wait and hope.

“We want justice because he never paid us anything. He can’t just close the company and say, ‘Oh there’s nothing left’,” Mr Anglin said. “We need the public to realise the way they treat foreign workers here. They don’t treat us with respect.”

“We just rely on each other,” Mr Ricketts said. “We just hope and pray for the best.”

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