The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A leading unionist yesterday described as “very significant” a ruling in which the Court of Appeal changed its mind, as it helped to define who was a ‘managerial’ employee.

Obie Ferguson, the Trades Union Congress (TUC) president and labour attorney, told Tribune Business that the court’s ruling in the case involving former Baha Mar employee, Duran Cunningham, had “helped to clarify the law” on overtime and ‘days in lieu’ claims.

Documents seen by Tribune Business reveal that the Court of Appeal changed its verdict on Mr Cunningham’s appeal against the original Industrial Tribunal decision, initially rejecting it via an oral ruling, but finding in his favour with their written decision.

Confirming this, Appeal Court president, Justice Anita Allen, said that following the initial dismissal, “after further and a more thorough consideration of the matter”, the appeal was allowed.

She suggested there were “strong reasons for doing so”, and said that after a review of the Tribunal’s decision and relevant evidence, “we could not, in the interest of justice, justify our oral decision to dismiss the appeal”.

Mr Cunningham won $100,836 after the case was remitted back to the Industrial Tribunal for a damages assessment.

“It’s a very significant ruling because it establishes some guidelines as to what constitutes a managerial/supervisory worker,” Mr Ferguson told Tribune Business of the Court of Appeal decision.

“If you do not have the authority to hire, fire or make independent decisions for or on behalf of your employer, you are not deemed to be managerial, and if you work excess overtime, compensation for those hours will be based on the Employment Act.”

And Mr Ferguson reiterated: “If you work the excess hours and are not a manager, you are entitled to be paid overtime.

“It wasn’t so clear prior to this action. It’s very significant, not only for employees and unions, but the employer, too, as the employer knows there are certain tests to determine if employees are managers or non-managers.”

‘Days in lieu’ were at the centre of the Cunningham action, and while the Employment Act deals with overtime, it does not speak to that.

Mr Ferguson said lieu days, which refer to days worked in excess of an employee’s contracted work week, and which they are entitled to get back at full pay, can be part of an individual or union contract.

“Under the Employment Act, that would be double time,”he added.

Mr Cunningham, a former Baha Mar logistics co-ordinator, 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.

The Court of Appeal 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.