By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Bahamian security firm “continues to ignore the law” on overtime pay rates, the Industrial Tribunal has ruled, in awarding a former employee $33,705 for six years’ worth of outstanding payments.

Sharada Ferguson, the Industrial Tribunal’s vice-president, in a May 14, 2025, verdict ruled that Westech Security International, which employs 125 security guards, “cannot simply choose to circumvent the law” by hiring workers on “less favourable terms” than those set out in the Employment Act.

She awarded Calan Gibson Jnr some $32,009 in outstanding overtime pay, covering the six-year period to November 2022, after finding he was “incorrectly paid at the standard rate of pay” for additional hours worked beyond the regular 40-hour work week. And Ms Ferguson also ruled that he was due $1,696 in outstanding vacation pay.

Westech’s ‘code of conduct’ and company policies stated it did not pay overtime rates, mandated by the Employment Act to be “one-and-a-half times” regular salary or wages, and workers were made aware of this when they signed their contracts. Instead, it paid standard hourly rates for overtime, and required security offers seeking to work beyond 40 hours to sign a ‘request to work additional hours’.

However, Ms Ferguson and the Industrial Tribunal reiterated that the Employment Act sets minimum legal pay, benefit and working terms that companies and their staff cannot opt out of through signing contracts that state otherwise. She noted that the Tribunal, backed by the Court of Appeal, had previously ruled against Westech on this issue in another employment-related dispute.

And her 77-page verdict, which found Mr Gibson was a full-time employee, and not an independent contractor as Westech alleged, also noted he continued to work as a security guard despite never applying for the necessary licence himself under the Inquiry Agents and Security Guards Act 1977 and its accompanying regulations. Westech was aware he had never applied but continued to offer him work.

Westech provided security services to businesses and residences including Doctors Hospital, Deltec Bank & Trust, Bayroc and Pilot House. Mr Gibson, who was initially hired on September 11, 2014, signed yearly contracts up until mid-June 2019 where he was required to work at least 40 hours per week.

However, he often worked extra hours and on holidays. “He received pay for the additional hours worked, but not at the prescribed rate for overtime work,” Ms Ferguson wrote in her verdict. “It was the respondent’s [Westech’s] policy, which applied from the applicant’s initial employment, that it did not pay overtime, and the applicant later signed documentation to that effect.”

Westech’s ‘company’s policies’, in paragraph three, stipulated: “Normal working hours for full-time security officer is 40 hours per week at a rate of $5 per hour. Officers requesting to work over 40 hours must apply to the company. Hours over the 40 hours marked will not be considered overtime. Additional hours will be paid at the above mentioned rate. The company does not pay overtime.”

Then, on June 13, 2019, Mr Gibson signed a contract with Westech to become a ‘self-employed independent contractor’ for the firm. Christopher Adderley, the Jerome Avenue-based firm’s proprietor, asserted that Mr Gibson requested this arrangement because “it provided him with greater flexibility to attend flight school and better pay”.

However, Mr Gibson “denies ever requesting a new contract” and alleged that the ‘independent contractor’ arrangement was “forced upon him” as a condition for remaining employed by Westech. He also claimed that “he did not fully understand the terms of the new contract” and was unable to consult an attorney on the implications prior to signing.

“The respondent paid for the applicant’s security guard licence from his initial employment on September 11, 2014, until its expiration on December 31, 2019,” Ms Ferguson added. “Quite notably, the respondent continued to engage the applicant’s services as a security officer albeit he did not independently renew or apply for a security guard licence.

“The applicant also never held a Business Licence as a self-employed person nor was he registered with the National Insurance Board (NIB) under such a designation.” Summing up Mr Gibson’s trial testimony, and responses under cross-examination, Ms Ferguson described him as “well-mannered, humble and intelligent”, and found him to be “a credible witness”.

“That is, he was even-tempered yet confident and fairly consistent in his testimony,” she added, although noting an “inconsistency” where Mr Gibson said he was told by Westech that, as an independent contractor, he must apply for his own security guard licence but then asserted that this was still paid by the company until his November 24, 2022, resignation.

Ms Ferguson, though, was less impressed by Mr Adderley’s evidence on Westech’s behalf. She “found him to be incredible and inconsistent”, though “very acquainted with the law” concerning the 40-hour standard work week, overtime pay and the legal requirement for security guards to have a licence to work.

“The Tribunal observed that the witness under cross-examination appeared, oftentimes, as insulting, offensive, evasive and un-cooperative,” Ms Ferguson wrote. Under cross-examination by Hilbert Collie, representing Mr Gibson, the Westech chief asserted that it was the latter’s responsibility as an independent contractor to ensure he possessed a valid security guard licence.

“Mr Collie then put to the witness that he tried to enter into fraudulent, unenforceable and illegal self-employed contracts because he did not want to pay overtime as was stated in his code of conduct,” Mr Collie further put to the witness that it was not the first incident or time that he was before the court for such misconduct by either trying, avoiding or refusing to pay overtime when his employees worked overtime,” Ms Ferguson recalled of the trial.

“Mr Adderley responded that there was only one case that was before the Privy Council which he lost. He said that Mr Collie should not try to paint him as an individual who was ‘trying to get out of something, and that was very, very incorrect’”.

Ms Ferguson, in her verdict, found that “the circumstances of this case overwhelmingly reveal” that Mr Gibson was a full-time Westech employee for the entire duration of his near eight years with the firm, including the final three-plus years he spent as an ‘independent contractor’. He had to gain the company’s approval for leave and days off, and the firm also controlled where and when he worked.

And the Tribunal vice-president also found that the ‘self-employed independent contractor’ agreement was “ultimately designed to both conceal the reality of the parties’ shared relationship of employer and employee and, further, to defeat the purpose of the Employment Act” and its legal stipulations on overtime pay and the standard hours of work.

“The Tribunal finds that the respondent [Westech] used the applicant’s pursuit of his further education as the supposed reason for the change in the applicant’s employment status,” Ms Ferguson wrote. “However, the Tribunal finds that the purported change in status had more to do with the respondent’s desire not to pay the applicant overtime pay as prescribed under sections eight and ten of the Employment Act.”

Ruling that overtime pay was “undeniably” owed to Mr Gibson, due to Westech’s policy of not paying the rate mandated by the Employment Act, Ms Ferguson ruled that “the law is pellucid and the respondent cannot blatantly decide to ignore it”.

“The Tribunal finds that the respondent cannot simply choose to circumvent the law by purporting to contractually engage the applicant on less than favourable terms than those delineated in sections eight and ten of the Employment Act,” she added.

“To this end, section four of the Employment Act expressly safeguards against any other law, contract of employment, arrangement or custom seeking to limit the right or benefits of any employee except that there are greater rights or better benefits provided to the employee...

“The law is abundantly clear about the fact that overtime pay is triggered once an employee works beyond the standard hours of work (40 hours)..... It is unfortunate that the respondent continues to ignore the law, which has been affirmed by the appellant and may attract the penalty of the law.”

This is not the first time Westech has hit legal trouble over its refusal to pay overtime rates. Another former minimum wage security guard was awarded nearly $11,000 after the Industrial Tribunal ruled that it “cannot lawfully contract out” of paying overtime rates.

Simone Fitzcharles, the Tribunal’s then-vice-president, in an October 1, 2021, ruling awarded 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.