Employer has work-permit offences fine cut
An employer who was fined for work-permit offences has had his fine significantly reduced after appealing the decision of the Chief Immigration Officer to the Supreme Court.
Kenneth Dill Jr, the proprietor of Changes Beauty Salon, was fined $35,000 in April for four violations of the Bermuda Immigration and Protection Act 1956. The fine was handed down on the basis that Mr Dill had allowed Nadine James and her husband, Donovan James, to work for him without work permits.
Mr Dill appealed against the decision of the Chief Immigration Officer, claiming that at the time of the alleged work-permit violations relating to Ms James, she was working without his knowledge or consent. He further claimed that he did not employ Mr James and that the penalty of $35,000 was manifestly excessive and wrong in law.
Justice Stephen Hellman agreed with Mr Dill’s first ground of appeal that Ms James was working without his consent or knowledge. “I am satisfied that in the circumstances, it would be unduly harsh to impose a civil penalty in relation to the work-permit violations involving Ms James,” he said.
“Even had I been satisfied that a penalty was appropriate in relation to the first violation, I should not have imposed a penalty in relation to the second. This is because the immigration authorities did not bring the first violation to the attention of the appellant until after the second violation had taken place. He was therefore not given a reasonable opportunity to correct it.”
Mr Justice Hellman also ruled that the penalty imposed by the Chief Immigration Officer was excessive. “Section 71A (3) provides that there shall be a $5,000 penalty for a person’s first violation and a $10,000 penalty for each subsequent violation within a period of seven years, beginning with the date of the first violation,” Mr Justice Hellman said. “The respondent concluded, perfectly logically, that in the present case that meant one penalty of $5,000 — because there can only be one first violation — and three penalties of $10,000.
“In my judgment, it follows that the reference to a person’s first violation in section 71A (3) is to a person being dealt with for a violation for the first time, even if on that occasion he or she is being dealt with for more than one violation.
“Thus, had I found that the four separate penalties should be imposed upon the appellant, the appropriate amount would have been $20,000 [ie, four times $5,000], rather than $35,000 [ie one times $5,000 and three times $10,000).”
The Supreme Court judge added: “In the present case, I have found that the appellant should be subjected to a civil penalty for two violations. As they are both first violations, the penalty is $10,000 [ie two times $5,000].
“The decision notice is quashed and in substitution for a penalty of $35,000 for four work-permit violations, I impose a penalty of $10,000 for two work-permit violations.
Shawn Crockwell, representing Mr Dill, told The Royal Gazette that his client’s case was the first to look at how the fine structure was applied under the legislation.
“The significance of this case is that it is the first time to my knowledge that this section of the legislation has been challenged in court, and the first time a judge has looked at how the penalties should be broken down.
“It provides clarity to an area that was previously uncertain.
“We are pleased with the significant reduction in the fine, and that the judge took a just and equitable approach to the alleged violations. However, I would prefer if such matters could be appealed directly to the minister, rather than force individuals to pursue appeals at the Supreme Court, which is obviously a costly exercise.”
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