Court orders Marksman to start paying employer NHT contribution

The Revenue Court in a landmark decision today ruled that security guards who are engaged by Marksman Limited are employees and not contract workers and that with immediate effect the company should start paying its portion of National Housing Trust (NHT) statutory contributions.

Justice David Batts has, however, blocked efforts by NHT to recover $806 million in outstanding employer contributions being sought by the trust, claiming that the government entity took too long to act and that it would now be unfair to ask the security company to pay the statutory obligation.

The amount which was being sought, which covers the period 2000-2016, included interest, penalties and surcharge and the principal sum of $477 million.

Since 2017, the NHT and security companies have been at loggerheads over their refusal to comply with the trust's declaration that the security guards whom they engaged are employees and not contract workers as indicated by them and as such, the businesses had an obligation to pay over three per cent of the workers' earning as contribution in addition to the company's three per cent portion.

The companies, however, have only been paying the three per cent deducted from the guards while insisting that they are contract workers and, essentially, self-employed. 

Consequently, the NHT, after facing opposition from several of the delinquent companies who were brought before the parish court, initiated proceedings against Marksman for the outstanding amounts.

But Batts, in his ruling today, said while the claimant succeeded in its declaration that the security guards are not independent, he could not grant the order for damages.

He said that aspect failed because" the NHT sat on his rights for far too long and received without demur payments on the basis that the guards were not employees.

"This leads Marksman reasonably to believe that NHT, like the tax authority, was satisfied and to act accordingly," he said.

He found that Marksman was encouraged to arrange its affairs on the basis that NHT had no issue accepting the workers' three per cent contribution.

"An estoppel therefore arises due to waiver, representation by conduct, acquiescence and or laches to prevent pursuit of the monies claimed," the judge explained.

Estoppel is an equitable doctrine that prevents one from asserting a claim or right that contradicts what one has said or done before, or what has been legally established as true.

King's Counsel Walter Scott and Deneice Beaumout Walters represented the security company.

King's Counsel John Vassell along with attorneys-at-law Trudy-Ann Dixon-Frith and Samantha Grant represented the NHT.

And Dr Lloyd Barnett and attorney Gillian Burgess appeared for the second defendant Robert Epstein, who is a former managing director of Marksman.

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