The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Natural justice “cannot be inferred” into a private employment contract, the Court of Appeal ruled yesterday, dismissing an action brought by a former Bahamian employee of US Airways.

Cherelle Cartwright’s appeal against the initial Supreme Court verdict, which found the airline had not unfairly dismissed her, argued that the “rules of natural justice were breached” when she was suspended in late 2013 as a result of two supervisors’ reports that were completed the same day.

Claiming that she never saw these reports until after her termination, Ms Cartwright and her attorney, Trades Union Congress (TUC) president Obie Ferguson, also argued that she had “a proprietary right to her job”.

Appeal Justice Jon Isaacs. writing the verdict on the court’s behalf, was notably unimpressed with these and the four other grounds of appeal advanced by Mr Ferguson.

He noted that ‘natural justice’, as a concept and rule, was better applied to public sector employment and administrative decisions by public bodies, rather than private sector employment contracts.

Describing the process employed by US Airways (which subsequently merged with American Airlines) in dismissing Ms Cartwright as “fair”, Appeal Justice Isaacs wrote: “I do not find that any rule of natural justice was breached by the respondent when it followed its disciplinary processes as outlined in the” Bahamas Personnel Policy Guide (BPPG).

“It must be noted that contracts of employment are privately negotiated contracts, usually between the employee and the employer,” Justice Isaacs continued.

“Issues of natural justice are not terms to be inferred into in the contract in the absence of specific reference thereto, and are more appropriate to matters of employment in the public sector or to administrative decisions taken by quasi-governmental bodies.

“Although natural justice and fairness are intersecting principles, the rules of natural justice are more applicable to reviews of administrative actions in the field of public law than in the area of private employment law.”

Appeal Justice Isaacs also emphasised that “no employee has a proprietary right to his job”, and could only expect that they will not be wrongly or unfairly terminated by the employer.

The Court of Appeal judgment detailed Ms Cartwright’s seemingly turbulent 18-and-a-half years with US Airways after she was hired in mid-1995 as a customer service representative, based at Lynden Pindling International Airport (LPIA).

“The appellant’s employment history over the period was characterised by unsatisfactory workplace relationships between herself and co-workers, commencing at least as early as three years following the start of her engagement with [US Airways],” Appeal Justice Isaacs wrote.

He said Ms Cartwright received her first Level III disciplinary warning, in accordance with US Airways’ staff conduct policies, in 2003 following a complaint that she “had threatened to knock a co-worker to the floor”.

This resulted in a three-day suspension without pay, and the Court of Appeal judgment then referred to complaints made in 2010 that Ms Cartwright had “created a hostile work environment for co-workers”.

US Airways’ Nassau station manager, Caroline Hollingsworth, wrote to Ms Cartwright in mid-2013, warning that it was “imperative” that she improve her workplace conduct, and not initiate verbal or physical altercations that created a “hostile workplace environment”.

Ms Cartwright used US Airways’ grievance procedures to make unsuccessful appeals, and she was issued with another year-long Level III warning in July 201.

A “unique” situation then arose because, as Ms Cartwright was appealing that warning, she was “suspended with pay in October 23, 2013, after three US Airways supervisors complained about her lack of respect and “very poor, very unprofessional attitude”.

US Airways ultimately decided to rescind the July 2013 warning, and replace it with a third Level III warning that would run for a year from the October incident.

Ms Cartwright was then involved in another incident on January 8, 2014, when a fellow US Airways worker, Eric Fowler, claimed she directed a “very loud and unprofessional” outburst at him at the door of one of the aircraft’s flights.

The altercation was witnessed by two US Airways flight attendants, and two officers from Candid Security Ltd. After conducting an investigation, involving interviews and written reports from all parties, the airline terminated Ms Cartwright.

Justice Ian Winder dismissed her claim in the Supreme Court, and the appeal was founded on allegations that Ms Cartwright was unfairly dismissed because of a ‘breach of the rules of natural justice’.

Justice Winder, too, dismissed the ‘natural justice’ claim, and the Court of Appeal said the appeal “seems to imply” that US Airways’ disciplinary process was inadequate, with no proper investigation undertaken.

Appeal Justice Isaacs backed the Supreme Court’s conclusion that Ms Cartwright’s “dissatisfaction emanated not from the process not being fair, but from the results”.

He added that she knew “the Sword of Damocles could fall on her” if another infraction occurred, as the third Level III warning was in place.