The Tribune

By NATARIO McKENZIE

Tribune Business Reporter

nmckenzie@tribunemedia.net

TEN Grand Bahama-based City Markets employees are alleging that the company and its principals deliberately altered their employment terms to "coerce and compel" them to leave voluntarily, thereby relieving the supermarket chain of the need to pay them severance and pension benefits.

The February 22, 2012, writ and statement of claim, filed on behalf of City Markets employees Victoria Allen, Charles Forbes, Emily Adderley, Karia Cooper, Nancy Evans, Andrew Major, Malissa Saunders, Mavie Grant, Idella Grant and Anishka Bartlett, alleges that from August 2011, working hours at the supermarket chain's Eight Mile Rock and Lucaya stores were cut by up to 80-90 per cent.

The "conspiracy" alleging legal document, which has been obtained by Tribune Business, also claimed that "all or most of the funds" in the City Markets staff pension plan, the Bahamas Supermarkets Profit Sharing Retirement Plan, had been disposed of.

It further alleged that Bahamas Supermarkets ensured that Mark Finlayson, principal of 78 per cent City Markets' majority shareholder, Trans-Island Traders, and Philip Kemp, the supermarket's chief financial officer, were appointed as pension fund trustees so that the fund was operated for the company's benefit, not that of its employee beneficiaries.

Apart from Bahamas Supermarkets, the immediate operating parent of City Markets, also named as defendants are Mr Finlayson and Mr Kemp, together with the former's father, Sir Garet 'Tiger' Finlayson.

The documents, filed by Freeport-based attorney James Thompson, detail the employees' claim as being damages for alleged conspiracy, breach of contract and breach of trust. They are also seeking a Supreme Court Order to remove the trustees of the pension plan and an accounting of the fund's true financial status.

The employees allege: " Sometime in August 2011, the first, second and third defendants, with each other and/or each of them with the other, or in the alternative with others, wrongfully conspired - or in the alternative wrongfully altered - the terms of the said contracts of employment of the Plaintiffs."

This, the statement of claim alleged, was "to coerce and/or compel the plaintiffs, and/or wrongfully cause the plaintiffs and/or each of them to voluntarily terminate the said employment in order to remove the legal and/or contractual obligation of the first defendant from the payment of termination pay and/or severance pay and/or notice pay and/or retirement benefits as the first defendant would have otherwise been contractual and/or legally bound to pay the plaintiffs or each of them".

The employees alleged that from August 2011, their hours of work were cut from 45 hours per week to nine, and from 35 hours to three, respectively 80-92 per cent drops.

At the same time, the hours of work at the Lucaya store were cut from between 45-35 per week to between 30-15 per week. They were subsequently cut further to between 10-four hours per week the following month.

The 10 employees then alleged that they were told in August 2011, and again in early October, that "though their hours of work had changed when they could not even afford to travel to work from Eight Mile Rock to Lucaya, they were not allowed to work for any other establishments and/or, in the alternative, any competitive establishment, and to do so amounted to voluntarily termination of employment".

The statement of claim alleged that the August 2011 work hour changes effectively amounted to a breach of the workers' employment contracts, but no severance or pension benefits were paid to them.

On the pension fund, it was alleged that the employees were entitled to vest in the plan as per their employment contracts.

Yet the employees alleged that Bahamas Supermarkets, together with the trustees, had either breached the pension plan's terms or their fiduciary duty, and "wrongfully disposed of all or most of the funds in the plan to the extent that the Plaintiffs, upon request and in accordance with their entitlement under the plan, cannot be paid their entitlement".

The statement of claim alleged that the Bahamas Supermarkets Profit Sharing Retirement Plan had been used to purchase a building for Bahamas Supermarkets' benefit.

It also alleged that as a result of all this, some City Markets' employees were "unable to pay for their regular living expenses"; "lost credit to the bank and friends who would have helped if they were genuinely employed"; and were "unable to properly able to take care of their children".

In a recent interview with Tribune Business, Mark Finlayson acknowledged staff concerns over the security of their retirement 'nest egg', stating that "in no way, shape or form has the pension been in danger" because of the five-store supermarket chain's financial woes.

The value of the pension fund's main asset, the former Bahamas Supermarkets head office on the East-West Highway, was said to ensure that the plan's total assets exceeded liabilities by $2 million.

He revealed that, due to accounting deficiencies stemming from the absence of proper software, some beneficiaries of the Bahamas Supermarkets Profit Sharing Retirement Plan had been "overpaid" - paid more than they were due from the pension scheme - between 2004-2011.