The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

An ex-Bahamas Power & Light (BPL) employee has been stripped of the $6,068 she was awarded after being terminated for “lewd sexual activity” while working in the utility’s cashier cage.

The Court of Appeal, in a unanimous verdict, overturned the Industrial Tribunal’s token compensation for Sherry Jennifer Brown after finding that BPL followed the correct disciplinary procedures in dismissing her.

Ms Brown’s termination arose after she allowed a male Post Office employee to enter the cashier’s cage at the former East Hill Street location, which BPL treated as a “restricted area” that could not be accessed by outsiders or certain employees in order to protect its revenues, on four separate times over a 12-day period during April 2016.

While Ms Brown claimed her interaction with Kim Ferguson was “romantic”, the Industrial Tribunal agreed with BPL that it amounted to “lewd” conduct that at one point extended to her “bending over, spreading her legs and lifting her dress, thereby exposing private areas of her body to Mr Ferguson and also in the presence of her work colleagues”.

The ruling added: “The Tribunal cannot find it unfair that BPL considered this to be unacceptably lewd, surpassing mere unprofessional behaviour,” Simone Fitzcharles, its vice-president, wrote in her verdict. “Additionally, it would not have been unfair to say that the other acts Ms and Mr Ferguson performed as were recorded (intimate touching and kissing, for example) were inappropriate in the workplace.....

“Based on the camera footage, Mr Ferguson’s main reason for visiting the cage was to find Ms Brown for the purposes of chatting closely, groping, touching intimate parts of the body and Ms Brown exposed private areas of her body. Ms Brown’s witness statement mentioned she performed similar acts.”

These acts, according to the verdict, took place while Ms Brown’s colleagues worked at their desks. Mr Ferguson was said to have gained access when Ms Brown opened the door, or when it was left unlocked by others. Besides being “offensive to the employer”, the Industrial Tribunal added that other BPL may also have been “demoralised” by it.

However, Ms Fitzcharles found in Ms Brown’s favour on a technicality - that the state-owned utility breached “procedural fairness” by failing to give her a chance to argue against her dismissal. Yet she cut the sum Ms Brown would normally have received for unfair dismissal by 90 percent from the maximum $60,678 on the grounds that her actions “significantly contributed to her firing”.

BPL, though, immediately appealed the verdict on the basis that failing to allow an employee to argue against “overwhelming evidence of misconduct” was not sufficient grounds to uphold an unfair dismissal finding. It also argued that Ms Brown was given “three opportunities over a three-week period” to explain why she should not be dismissed, but had not taken the opportunity.

Appeal justice Milton Evans, writing the unanimous verdict, backed BPL’s arguments in finding that “the egregious nature” of Ms Brown’s behaviour far outweighed her status as a 25-year veteran, which the Industrial Tribunal had described as a mitigating factor.

“It is difficult to conceive of any reasonable basis on which it can even be inferred that the appellants (BPL) would have considered the status of the respondent as a long-standing employee a mitigating factor having regard to the egregious nature of her conduct and her failure to appreciate the gravity of her infractions,” he wrote....

Finding that BPL had “fully complied with its disciplinary procedures” and given Ms Brown a chance to make the case for retaining her job, appeal justice Evans added: “The decision to terminate was not too harsh in the circumstances of this case, as the established conduct was egregiously inconsistent with behaviour expected from the respondent as a seasoned employee stationed in a public place as a representative of the appellants.”

Obie Ferguson, the Trades Union Congress president acting for Ms Brown, argued that BPL had failed to provide his client with the specific allegations against her. The Court of Appeal, though, quickly dismissed this by noting that the Industrial Tribunal verdict said she was presented with the case against her.

“The evidence against the respondent was compelling, and it is understandable why she did not pursue a claim for wrongful dismissal. It would have been a baseless claim with no chance of success,” appeal justice Evans added.

“In my view, faced with the evidence of the video recording, it was open to the respondent to accept responsibility for her actions and ‘throw herself’ on the mercy of her employers. Instead she continued to dispute incontrovertible facts. She had every opportunity to make representations as to why she should not be terminated but failed to avail herself of the same.”