Security guards' loan deductions not being paid over

Dear Mrs Macaulay, 

A number of us security guards employed to a particular group are writing to state the embarrassment we face whenever we take loans from financial institutions.

Whenever we take these loans, monies are withdrawn from our salaries but are not paid over in a timely manner, resulting in us having “outstanding loans”. This has been happening for years. We have complained but the situation remains the same.

Note, however, that whenever we take loans from an affiliate of the group, there is no such problem.

This is causing us embarrassment as collections agencies have been calling us, threatening us with lawsuits.

We have approached the company several times about the situation, but nothing has been done.

We would like to know what can be done about the situation as we are fed up and tired of the embarrassment and harassment.

You guards would have given your employer the authority to make the deductions and pay them over for you, and the loan company agreed to the arrangement. This arrangement, from what you've said, certainly works well when the lender entity is an affiliate of your employer, but not when it is one independent of it. This means the company's actions are clearly intentional. The clear message from it is that it prefers you all to borrow from its affiliates rather from entities completely independent of it. This is obviously wrongful conduct because without actually saying so, it wishes you to deal with its affiliate financial entities only, and you are punished by its delayed payments to force a change to its preferences. It cannot simply be that they are merely negligent, in the circumstances you have identified.

So what can you do? On the face of what you have stated, your employer is clearly wrong and has been for a number of years, all to the detriment of you and other security guards. The answer seems clear — you must make different arrangements/agreements with the lender entities and keep your loan contracts out of the hands of your employer. If you cannot afford to do this, you must then have been placed in situations wherein, through no fault of yourselves, you were put into arrears as a result of the late payments of the company, and default interests were added to such loan accounts. If this is so, then in law and in fact, your employer is liable for any additional costs caused to each such account and not you guards personally.

Maybe you all should make such claims against your employer for any such additional liabilities that you might have had to meet because of its late payments of your instalments over to the lender. You may even have further claims against your employer; for example, for negligence (but I think their actions were intentional) or for the damage to your financial reputations.

However, I am aware that this may place you in difficulties about your jobs. But this would also raise the question of wrongful dismissals.

I would suggest that those who are affected contact a lawyer to whom you would give more information than you have stated in your letter to me, who can then fully advise you of the various causes of action/claims you have and can make against your employer for their wrongful conduct. They would also tell you how many years back payment can be covered. Or, perhaps you can go to the Office of the Public Defender and seek assistance about the matter.

You must remember that your employer has no right to deduct any sums from your salaries except for statutory deductions which they are bound by law to do, or those that you in your employment contract in writing or verbally, agree that the employer can deduct for a particular purpose. In other words, deductions can only be done in obedience of law or as agreed by the employee and the employer.

So please seek legal assistance directly as I cannot cover all avenues without getting more details from you. Do a proper legal consultation with a lawyer face to face. Such fees as the consultation would cost would be well worth it for you all. You owe it to yourselves to do this, so that you can all make the best and fully informed decision after a full consultation.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.

Margarette MACAULAY

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