The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Polymers International supervisor has seen his $45,500 wrongful dismissal award upheld despite being in charge when the Freeport-based plant came perilously close to exploding.

Sir Michael Barnett, the Court of Appeal’s president, in a unanimous verdict said the manufacturer “could not reasonably” conclude that Philip Hepburn was guilty of gross negligence while admitting that the verdict “is not free from doubt”.

He added that Polymers International knew Mr Hepburn was not well when he took charge of a June 2009 night shift that, according to the supervisor, saw a reactor overheat to such an extent that there “would have been an explosion, and everyone at the plant and in the surrounding neighbourhood could have been killed”, had he and other workers not taken measures to cool it down.

While the chemical manufacturer, which produces resin, synthetic rubber and artificial and synthetic fibres, blamed Mr Hepburn’s failure to properly supervise that shift and follow “standard operating procedures” for costing it more than $340,000 in loss and damages, the Court of Appeal found he had a clean 13-year employment record prior to that incident.

The dispute, which took more than 12 years after the near-explosion to make it through the Court of Appeal, also shows how slowly justice moves in The Bahamas. Sir Michael’s judgment revealed that it took more than six years to reach the Supreme Court, with evidence first taken on October 22, 2015, and a trial involving nine witnesses only ending on February 12, 2016.

Justice Petra Hanna-Adderley then took a further five years to produce her written verdict, which was only delivered on December 8, 2020 - more than 11 years after the event that led to Mr Hepburn’s termination.

Raynard Rigby, lead attorney for Polymers International, used these delays as one of the key grounds in the company’s appeal. He raised the issue of whether Justice Hanna-Adderley’s evaluation of the evidence” in finding for Mr Hepburn was “safe” given that almost five years had elapsed between when she heard the evidence and delivered the verdict.

Noting that the Supreme Court judge had herself apologised for the delay before she rendered the verdict, Sir Michael wrote: “As pointed out earlier, the trial of this matter took place on seven days over a five-month period, including the Christmas break.

“The judge took almost five years to deliver her judgment after the evidence. Counsel for the respondent [Harvey Tynes QC] described the delay as ‘unreasonable’ and ‘unbearable’..... There is no apparent excuse or explanation for this delay.

“That a judge should take almost five years to deliver a judgment is wholly unacceptable. It is a clear breach of a litigant’s right to a fair trial within a reasonable time. It is culpable and borders on judicial misconduct.”

Still, in reviewing the evidence and Polymers’ appeal, Sir Michael said the manufacturer’s argument amounted to “trawling through a judgment” to try and identify the slightest weakness and loophole that can be exploited.

“Notwithstanding the delay, it is clear that the judge reviewed in detail the evidence which was contained in written witness statements, oral testimony which was taken verbatim by a stenographer, and summarised by counsel in their submissions. We have also had the benefit of reviewing that material,” he found.

Freeport’s near-brush with its own version of a ‘mini-Chernobyl’ type incident was detailed by Mr Hepburn’s evidence, which disclosed that problems erupted at around 4.3am-5am on June 15, 2009. This occurred when the temperature in Polymers’ reactor 3610, which was being used to produce the latest batch of polystyrene beads, was found to be “out of control”.

Expressing surprise that no alarm had sounded, Mr Hepburn testified that the reactor’s temperature was between 208 and 210 degrees. He added that he “quickly pressed the emergency cool down button on the console” and phoned his immediate supervisor, Craig Simms.

He advised trying to pour water into the reactor manually to cool it after the automated processes failed. “Antoine Forbes, one of the operators, put on a respirator and went outside to try to open the valve,” Mr Hepburn alleged.

“I opened the door of the control room and could smell styrene, one of the chemicals we used. I could also see styrene residue vaporising and coming out of the reactor manway and into the plant. It looked like the batch was about to blow out of the reactor.

“At that point I knew we were in danger and it was dangerous for anyone to try to manually work on the reactor. Even then there was no alarm. The control room had walls that were explosion proof. I told everyone to get inside and close the doors,” he continued.

“We did everything we could from the console to cool down the batch and try to get the reactor going. Had we not done this there would have been an explosion and everyone at the plant and in the surrounding neighbourhood could have been killed. It would have led to a chain reaction with other things exploding, too.”

Mr Hepburn blamed the near-explosion on the failure of Polymers’ automated audio alarm system to function that night, which meant he and his co-workers were not alerted to the problem until it was almost too late.

“In my 13-and-a-half years at Polymers the alarm system had always worked and I had grown to depend on it,” he alleged. Polymers, though, did not see it that way. It determined he was guilty of gross negligence in failing to both properly supervise his staff and follow the company’s operating procedures, resulting in Mr Hepburn’s summary termination.

Sir Michael described the episode as “a catastrophic event” where the staff failed to properly “charge” elements in reactor 3610, resulting in $270,678 worth of damage to “very expensive equipment” and around $70,000 in lost profits.

Turning to Polymers’ appeal, he found that Justice Hanna-Adderley had applied the correct legal test in finding that the manufacturer “did not have an honest belief, after a reasonable investigation, that the respondent was guilty of gross misconduct or gross negligence”.

Sir Michael noted, in particular, the evidence of Greg Ebelhar, Polymers’ chief operating officer, who confirmed that “in the event something is wrong, the computer indicates a warning by generating an alarm” either by sound or visual means. Mr Hepburn had blamed the incident on these alarms failing to work.

“The fact is that the material evidence as to what happened that night is not really disputed. The respondent was the production assistant and supervisor of that shift. He was not feeling well that night. He told his supervisor that he was not 100 percent but was told to go to work and work out of the control room,” Sir Michael recorded.

“At the beginning of the shift he was resting and/or sleeping. He had a back injury and that fact was known to the appellant [Polymers] and is not disputed. There is no suggestion that he was impaired for other reasons - for example intoxication or illegal substance. There is no suggestion that he was distracted from doing his job for any other reason.

“There is no suggestion of ‘deliberate and intentional acts of sleeping at work so as to neglect or evade responsibilities or duties’, which is a major or serious infraction under the appellant’s disciplinary procedures.

“The audio alarm was not working and failed to warn persons that a breach of procedure had occurred. The respondent failed to detect the visual alarm on his monitor, which he was under an obligation to constantly monitor. Indeed, neither did Baldwin Smith another employee on the shift who also had a monitor in front of him.”

Sir Michael found it was also “a bit unfair” for Polymers to blame Mr Hepburn for allowing an employee to leave the plant for 45 minutes when the reactor was being ‘charged’, as other staff were capable of performing this function.

“The respondent had been employed for more than 13 years, he had no known history of misconduct or negligence, and he was not well that evening - a fact known to the appellant,” Sir Michael found in dismissing Polymers’ appeal.

“The appellant could not reasonably believe that the respondent’s conduct amounted to gross negligence which justified terminating him without notice or compensation in lieu of notice. The conduct could not reasonably lead to the conclusion that the respondent intended, or was reckless, in not complying with the appellant’s rules and indifferent to the appellant’s interests.”

Justice Petra Hanna-Adderley