A dozen former employees of Myett’s are suing the company’s owners for refusing to provide them with severance or notice pay after their jobs were made redundant in the wake of Hurricane Irma last year.
The Cane Garden Bay hotel and restaurant business suffered severe damages after the storm and was forced to shutter most of its operations — besides a small bar and gift shop — throughout the 2017-2018 tourist season.
Former employees there, however, argue that after being laid off they weren’t given much-needed financial support that is guaranteed to workers by the Labour Code.
The 2010 law stipulates that staff who have worked at an establishment for more than one year should receive nine days’ worth of payment from their employer per year of employment, as well as three-fourths of one day’s worth for any additional month.
The former employees also claimed the business owners — Valerie, Kareem and Leon Sandman” Rhymer — shirked their responsibilities with regards to paying for their lack of termination notices.
While speaking to the Beacon, several of the claimants lamented being stuck in a situation with what they argued was a business that didn’t fulfill its legal obligations, employers who defended their decisions with shifting rationales, and Labour Department officials who did little to help them secure what they believe they were legally owed.
Those factors, they say, led them to their current situation: still without their severances after 14 difficult post-Irma months and forced to hire legal representation — Richard Rowe, a partner at DenJen Law Solicitors — to sue for a total of more than $70,000, according to their claim form.
Their former employers, however, deny any wrongdoing, arguing that the severity and “particular circumstances” of Irma’s impact voided their requirements to pay those obligations.
The Beacon spoke extensively with five of the suit’s claimants, including Kimmy Cooke Leigh, Cheryl Couture, Cora Liburd, Luz Adell Callwood and Ernie Claxton. An additional four claimants — Rudolph Stone, Veronica Bailey, Carina Industrius, and Xiomara Mason — confirmed the veracity of their comments.
After they were told in late September 2017 that they would no longer be employed at Myett’s, 18 of the company’s workers went to Labour the next morning to inquire about their rights. They allegedly had been given mixed signals about their severance: One of the owners, Kareem Rhymer, said it wasn’t the company’s responsibility to pay it because the storm was an “act of God,” and another, Leon Rhymer, said they should let the Labour Department decide, according to the claimants.
Valerie Rhymer said last week that the owners received legal advice not to comment on an active matter before the court.
“We can say, however, that we have at all times dealt fairly with all of our employees and have followed all the laws,” she wrote in a message to the Beacon. “We continue to defend this matter vigourously.”
When this reporter called Leon Rhymer, he also declined to comment and immediately hung up the phone.
Though Labour Department officials allegedly told the laid-off employees they should receive severance, the claimants said the department did nothing to help them attain it.
“We went to Labour and we got the runaround,” said Ms. Liburd, a bartender who worked at Myett’s for five and a half years.
Mses. Leigh and Couture estimated they both went to the department four or five times — in addition to making numerous phone calls — and at one point waited 2.5 hours in person to meet with Labour Commissioner Janice Rymer, only to be told the meeting would be rescheduled. It never was, they claimed.
Speaking last week through Labour Officer Devern Davis, Ms. Rymer declined to comment on the matter, citing the active court claim. Asked afterwards why the Labour Department didn’t intervene before the issue became a court case, Mr. Davis reiterated Ms. Rymer’s refusal to comment.
Labour’s website states that the department’s mission is “to protect the rights, wages, working conditions, safety, health and welfare of workers through enforcement of [Virgin Islands] labour laws.”
Legal claim background
After Labour allegedly failed to assist them, 12 of the laid-off employees retained Mr. Rowe as legal counsel. In late February, the lawyer wrote to Triad Company Services Limited, Myett’s Enterprises Limited’s registered agent, and copied Myett’s ownership and the labour commissioner.
In the letter, he demanded that each of his clients be paid severance, notice and a late fee of five percent, and said they would file suit in 14 days if they didn’t receive any further communication.
The Labour Code permits employers to lay off employees immediately as long as they pay them a sum equivalent to what would be earned in their required notice period, which depends on their seniority. Employees with less than seven years of experience are supposed to receive one pay interval of notice, employees with seven to 15 years are supposed to receive a month of notice, and employees with more than 15 years are required to be notified two months in advance of termination.
Mr. Rowe said Myett’s ownership didn’t respond directly to his letter, but about two weeks later Kareem Rhymer wrote to the labour commissioner and copied Mr. Rowe, according to a copy of the letter obtained by the Beacon. Again, Mr. Rhymer referred to the hurricane as an “act of God” that forced management to “temporarily lay off” staff without pay, a decision he said “did not constitute an act of termination.”
The Labour Code, however, states that “if no date of re-employment is given and three months have elapsed without the employee being re-employed, severance pay shall be payable immediately upon the expiration of the three-month period.”
In April, the employees filed a claim, which — like Mr. Rowe’s initial letter — includes calculations describing what they believe they’re owed. In June, the Rhymers — represented by Dancia Penn & Co. — filed a defence. The document discounts Kareem Rhymer’s previous arguments, saying his letter — which was submitted as part of the claim — was “issued without the benefit of legal advice and consideration and without full and proper appreciation of the terms used therein.” Yet the defence argues once again that the company’s operations were shuttered by an “act of God.”
It later states that “in the particular circumstances prevailing and arising out of the hurricanes, there was no requirement to give notice and no consequential entitlement arose to give the claimants’ notice pay, and the defendant denies any liability for the same.”
The defence makes a similar argument justifying the defendants’ decision not to pay severance.
In an interview with the Beacon, Mr. Rowe didn’t debate that Hurricane Irma could legally be classified as an act of God, a term that is mentioned three times in the Labour Code (see below).
He didn’t agree, however, that stopping business due to an act of God gives an employer reason to skirt notice and severance requirements.
Section 89(3)(c) of the Labour Code states that employees who can no longer be employed at a business because it was impacted by an act of God are considered redundant. Redundant employees, based on Sections 89(2)(c) and 104(1) of the law, are entitled to notice and severance.
Dancia Penn did not respond to requests for comment about the case.
The defendants also argue that “notwithstanding the provisions of section 110 of the Labour Code, … the claimants’ claim is premature, and they failed to avail themselves of the mediation, conciliatory and other provisions under the Labour Code and they have failed to exhaust their options and remedies before filing suit.”
Mr. Rowe said he was puzzled by this argument because section 110 “specifically states that one can file suite” before exhausting other options.
“They want the court to ignore the Labour Code,” he said.
The lawyer also noted that the defendants filed an application to seal the case from public view, which he said was denied.
According to an update posted on Myett’s official Facebook page, Myett’s restaurant recently formed a partnership with Pusser’s, which plans to merge the businesses’ menus and open its own store and rum bar on the property. Both the restaurant and Myett’s Hotel are currently being renovated and are expected to open in full before the end of November, according to the post.
“A grand opening date will be announced soon, so stay tuned!” the update read. “And we’re hiring!”
Mr. Rowe noted that whatever agreement Myett’s ownership made with Pusser’s doesn’t change anything about the suit.
“You must appreciate under the Labour Code the fact that they also sought to merge with another entity does not absolve them of their legal obligations,” he said.
Section 97(4) of the law reads, “Where there is a change of ownership, the predecessor employer shall pay to those employees who have not been offered continued employment with the successor-employer their outstanding wages, vacation pay, severance pay and any other entitlement due to them.”
A pretrial hearing is set for Tuesday, according to Mr. Rowe. In October, the lawyer said he was “pretty confident” that the Myett’s owners’ defence will be struck out.
In an interview with the Beacon, the claimants stressed that they never wanted the situation to come so far, criticising the company for “forcing their hand.”
“[Valerie Rhymer] has a business,” said Ms. Couture, an office manager who worked for Myett’s for more than eight years. “She, as a business owner, should know the law; should know that in the event of something like this, you are liable for that.”
Ms. Callwood, a cook who worked for Myett’s for about three years, expressed hope that their case could help other mistreated workers in the future.
“This will work as an example for others to actually stand up for their rights when they need to,” she said. “Because we have to be more compassionate.”
|What constitutes an ‘Act of God’?
Myett’s owners consistently defended their decision not to provide their former employees with severance and notice pay because Hurricane Irma was an “act of God.”
It seems to be an often-used argument in the Virgin Islands, with other employers and landlords denying severance payments and damage deposit refunds using the same wording. In terms of the territory’s Labour Code, an “act of God” is mentioned in only three specific scenarios, none of which appears designed to shield employers from legal obligations.
Should an employer use that term to defend a decision that doesn’t directly relate to these three meanings, an employee may have reason for complaint in some instances.
First usage: Employee protection Section 51 mentions that if an employee shows up to work and an act of God stops them from working, they should be paid for the full day if they’ve worked more than six hours or at an hourly rate if they’ve worked less.
Second usage: Redundancy definition Section 89(3)(c) of the Labour Code states that employees who can no longer be employed at a business because it was impacted by an act of God are considered redundant. Redundant employees, based on Sections 89(2)(c) and 104(1) of the law, are entitled to notice and severance.
Third usage: Continuity of employment Section 96(f) states that an act of God shall not constitute a break in an employee’s continuity of employment, which appears to protect employees’ severance and retirement payments from being impacted by events like Hurricane Irma.