The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Baha Mar logistics co-ordinator has won his appeal against the Industrial Tribunal’s “illogical” finding that he held a managerial position, the appellate court ruling he did not and was thus entitled to overtime pay.

Court of Appeal president, Justice Anita Allen, overturned the earlier verdict on the basis that there was nothing in Duran Cunningham’s employment contract with Baha Mar Development Company that said he held a managerial/supervisory position.

In her ruling, with which the two other Appeal justices agreed, Justice Allen noted that the first time Mr Cunningham’s job was described as a supervisory one was when Baha Mar rejected his claim for ‘in lieu’ days or overtime.

As a result of this development, the Court of Appeal judgment said “one might well surmise” that Baha Mar was “conveniently” describing his job as supervisory just to defeat the overtime claim.

While line staff are entitled to overtime pay if they work in excess of 40 hours per week, the Employment Act exempts managerial/supervisory workers from receiving such payments - and this became the crux of Mr Cunningham’s dispute with Baha Mar.

Also of note for employers and their attorneys was that the Court of Appeal, in determining whether Mr Cunningham line staff or a manager, ruled that the Fair Labour Standards (Exceptions) Order had survived the Employment Act’s arrival in 2001.

That had replaced the Fair Labour Standards Act, but the Court of Appeal found that the Order bearing the same name survived because it was “not inconsistent” with the Employment Act’s provisions.

This was important in the context of Mr Cunningham’s case, the Court of Appeal noted, because the Fair Labour Standards (Exceptions) Order defined what a supervisory/managerial position was - and the Employment Act did not.

Outlining the background to the dispute, the Court of Appeal found that Mr Cunningham was employed by Baha Mar as a logistics co-ordinator from June 12, 2006, to January 9, 2008.

His letter of employment described his responsibilities as co-ordinating all Baha Mar’s logistics, and liaising with shipping agents, Customs and freight forwarders to ensure all material orders “are delivered in a timely manner”.

Mr Cunningham was required to “work closely with, and report directly to”, Baha Mar’s purchasing manager and/or the company’s principals. His annual salary was $48,000, and he was entitled to one month’s notice or one month’s pay in lieu of notice on termination.

“Importantly, the letter does not describe the nature of his employment as supervisory or managerial,” the Court of Appeal found.

“By letter of 10 September, 2007, [Baha Mar], through its human resources manager, in rejecting the appellant’s claim for payment for ‘in lieu’ days, stated that the reasons for such rejection were that his overtime sheet submissions could not be verified and were not in the company’s standard forms, and further, that his position was a supervisory one and he was not technically entitled to overtime,” President Allen said.

“Interestingly, this was the first time the nature of the appellant’s position was described as supervisory, and one might well surmise that this reason was conveniently pressed to defeat the appellant’s claim for overtime.”

The Court of Appeal said Mr Cunningham described his duties as managing material flows into the Bahamas on Baha Mar’s behalf, co-ordinating stock items in the warehouse and storage facilities, and managing the flow of documents between Customs and shipping agents.

“There is, however, no evidence that he had any power to hire, promote, lay off or discipline staff on behalf or independently of his employer,” the Court of Appeal said.

“Interestingly, the appellant was described as a ‘logistics coordinator’, but preparations were made by [Baha Mar] just prior to his termination to employ a ‘logistics manager’.”

Mr Cunningham said he was required to clock in, report and worked more than 40 hours per week “because he wanted to keep on top of his work”.

The Court of Appeal added that Tara Bastian, who testified on Baha Mar’s behalf at the Industrial Tribunal, “gave no evidence from which one might reasonably infer that [Mr Cunningham’s] position was supervisory, or managerial.

“Indeed, her evidence is obviously one of opinion which, without more, should not be given much weight.”

The key question, the Court of Appeal added, was to determine whether the position involved was managerial.

Given that the Fair Labour Standards (Exceptions) Order had survived, the court said there were three key definitions of a managerial/supervisory position: the ability to exercise authority associated with such a position; exercising this authority in the employer’s interest; and exercising independent judgment.

The Industrial Tribunal had found that Mr Cunningham was a manager because his contract required that he be given a month’s notice, or month’s pay in lieu of notice, compensation consistent with holding a supervisory job under the Employment Act’s sections dealing with termination.

The Court of Appeal, though, described this finding as “illogical” and “unreasonable”.

Ruling that there was no evidence that matched with the definition of a managerial/supervisory position, Justice Allen said the Industrial Tribunal ruling did “not accord with the evidence”.

She added: “There is nothing, as I said before, in the appellant’s contract of employment which expressly designates his position as supervisory or managerial, nor can it, in my view, be implied by its terms.

“Indeed, other than the level of the remuneration, none of the other terms when taken singly or together indicate employment at that level.”