The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Bahamas’ most prestigious private school has lost its appeal over having to pay more than $26,000 in severance pay to its principal’s former assistant.

A unanimous Court of Appeal ruling found that Margo Albury, notwithstanding her six successive fixed-term contracts, had been continuously been employed by St Andrew’s School for 11 years and was thus entitled to severance pay under the Employment Act.

The New Providence-based school, which also lost the initial case before the Industrial Tribunal, had argued that because Mrs Albury had been employed under a fixed-term contract, the final one for the 12 months ending August 31, 2009, “the issue of severance pay does not arise”.

Setting out the rationale for the Court of Appeal’s decision, Justice Conteh noted that Mrs Albury was first employed as the principal’s personal assistant on September 1, 1998, under a two-year contract.

She continued in the post via a series of fixed-term contracts of varying length, but the situation changed when “rumours in the market” prompted Mrs Albury to inquire in January 23, 2009, whether her contract would be renewed.

Five days later, she was informed that St Andrew’s did not intend to renew her contract. And a March 23, 2009, letter from St Andrew’s School chairman, Larry Gibson, implied that this move - and other downsizing measures - had been sparked by the 2008 Lehman Brothers collapse and subsequent global recession.

The Court of Appeal summarised this letter as “lamenting the downturn in the economy, the consequential worsening financial situation of [St Andrew’s] and the drastic steps that they would have to take to remain solvent, one of those steps being to reduce non-faculty positions”.

Justice Conteh wrote that the letter “was apprising members of the St Andrew’s community of the straitened financial situation the school was experiencing and outlined measures its Board was going to take to stabilise the situation”.

Mr Gibson warned that St Andrew’s had to reduce spending, and among the measures then being implemented were to “eliminate” seven administrative and maintenance positions. Posts vacated by staff and teachers would be filled on an ‘as needed basis’.

Mrs Albury wrote to St Andrew’s chairperson on June 29, 2009, to inquire whether she would receive her due severance/redundancy pay. The reply the following day said she would not, because she had been employed on a fixed one-year contract.

This prompted Mrs Albury to seek legal redress at the Industrial Tribunal, which found that notwithstanding the six fixed-term contracts, she had been “employed under a global contract of employment” and was thus entitled to redundancy pay under the Employment Act’s section 26.

Among those who testified before the Industrial Tribunal was former Commonwealth Brewery managing director, LeRoy Archer, who was then St Andrew’s chairperson.

Justice Conteh described as “a central plank” in St Andrew’s case the argument that Mrs Albury’s employment was brought to an end in line with her contract, and she was therefore not entitled to redundancy pay.

Backing the Industrial Tribunal’s finding that she was made redundant, Justice Conteh wrote: “It is manifest that the requirements of operating St Andrew’s school would, because of the financial difficulties it was experiencing, no longer, at least for some unforeseeable time, need the services of an assistant to the principal of the school.

“In other words, given the financial situation of the appellant, it had decided to downsize and, in the circumstances, [Mrs Albury] had become surplus to requirements. In a word, she had become redundant.

“The fact that [St Andrew’s] urged that the dismissal of the respondent was in accordance with clause 8 of their agreement could not, in the circumstances, veil the reality of what it was doing: Letting go of an employee who had, without a break, been on its staff for an appreciable period of 11 years, albeit on successive fixed-term contracts.”

And Justice Conteh said that while the Industrial Tribunal should have said Mrs Albury was employed under “a continuing contract”, its findings and conclusions could not be faulted.

“A particularly telling point, as the Tribunal found, was why would [St Andrew’s] provide health insurance and pay the pension contributions for the respondent uninterruptedly for the 11 years she was employed, if she was employed for only one year, as contended for by the appellant?” Justice Conteh asked.

However, in an accompanying ruling from Appeal Justice Neville Adderley, the court ruled that Mrs Albury’s award be reduced from $26,094 (plus interest) from $28,466 (plus interest), as she could not claim two weeks’ notice. This was because she had known for seven months that she would be terminated.