The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Employment contracts do not become “invalid or void” if an employee is working in the Bahamas illegally, the Court of Appeal has ruled.

It upheld the $20,200 award to Jamaican national, Rupert Barrett, who had sued Tycoon Management and its owner, James Curling, for damages relating to “negligence and/or breach of contract” over injuries suffered when a dredging vessel sunk.

Tycoon tried to argue that Mr Barrett, who produced pay slips showing he was one of its employees, was unable to bring his claim because he did not possess a work permit and was therefore employed in the Bahamas illegally.

It argued that permitting his claim would be “giving effect to an illegal contract”, but this had little impact with the Court of Appeal.

Appeal Justice Stella Maureen Crane-Scott, in delivering the verdict on the court’s behalf, said there was nothing in the Immigration Act that rendered invalid employment contracts with illegal workers.

She added that the Act only dealt with penalties for both employer and employee if the latter did not possess a valid work permit, while also providing for the latter’s deportation.

“In my view, having examined the Act as a whole, I am satisfied that apart from those sanctions there is nothing in the Act - either express or to be implied - which suggests that employment contracts or arrangements entered into breach of the Act are, as a matter of public policy, to be regarded as invalid or void,” Justice Crane-Scott ruled.

The verdict stemmed from the capsize of Tycoon Management’s dredging vessel, the MV ‘Bahama Wave’, which resulted in Mr Barrett suffering “a massive hematoma on his chest wall” and a breathing system infection.

The Court of Appeal judgment reveals that the accident occurred despite Mr Barrett alerting the Captain’s Mate to the fact the vessel appeared overloaded. The response of the Captain’s Mate was to “go back to sleep”.

Mr Barrett had been retained as a seaman on the MV ‘Bahama Wave’ after its sale to Tycoon Management, a leading Bahamas-based sand and aggregate supplier/exporter.

The vessel had been engaged in sand dredging and mining just off the New Providence coast on September 27, 2009, when Mr Barrett “noticed that the boat appeared to be overloaded and had begun to lean....

“He had awakened the Captain’s mate and alerted him of his concerns, but the Captain’s mate had gone back to sleep.”

With its sand cargo loaded, the MV ‘Bahama Wave’ headed for shore, but Mr Barrett - who himself had gone to sleep - awoke to see “the stern of the vessel high out of the water and the bow of the vessel going downwards”.

According to the earlier Supreme Court verdict, delivered by then-Chief Justice Sir Michael Barnett, the Jamaican retrieved some life jackets and alerted two other crew members who were asleep.

However, the MV ‘Bahama Wave’ sank before Mr Barrett could put on his life jacket. He was hit by the sinking vessel after jumping into the water, and eventually rescued by the Defence Force hanging on to the ship, which had capsized a mile off Paradise Island.

After it was discovered that he had no work permit, Mr Barrett spent nine days in the Carmichael Road Detention Centre before returning to Jamaica.

Sir Michael, as chief justice, found that Mr Barrett had been a Tycoon Management employee, and that while his hiring had been in breach of the Immigration Act, the company “owed him a duty of care”. He also ruled that the Jamaican national had been “constructively dismissed”.

While Mr Barrett’s illegal employment was not raised by Tycoon Management at the original trial, it formed the basis of the company’s Supreme Court appeal. The Court of Appeal allowed it to argue this issue because it was “so fundamental” to the outcome of the case.

Chernenka Rolle, Tycoon Management’s attorney, argued that Mr Barrett could not base his claim on an illegal contract, given that he was a non-Bahamian who had failed to obtain a work permit from the Department of Immigration.

But Darren Ellis, acting for Mr Barrett, said the latter’s evidence was that Tycoon Management had promised “to submit the necessary paperwork to the relevant authorities to ensure that his employment situation in the Bahamas was regularised, and that it had failed to do so”.

He argued that it was “inequitable” for Tycoon Management to avoid its obligations to Mr Barrett, arguing that the company - not his client - was responsible for breaching the Immigration Act’s work permit requirements.

As a result, Mr Ellis argued that Tycoon Management could not rely on the absence of a work permit to avoid its obligations to Mr Barrett, adding that it was the company itself that had broken the law.

Justice Crane-Scott’s verdict recalled Mr Barrett’s evidence of entering the Bahamas with a ‘travel letter’ provided by Tycoon Management, which he said was retained by Immigration.

“There is little doubt that the respondent did in fact enter the Bahamas without a work permit, and further, had been in [Tycoon Management’s] employ without a valid work permit when the ship sank,” she said, before dismissing the “illegality” argument.

The Court of Appeal then rejected Tycoon Management’s claim that Mr Barrett had failed to prove his injuries had been caused by “negligence in failing to properly manage the loading operation”, causing the MV Bahama Wave to sink.

It said the company had failed to show an alternative reason for the vessel’s sinking, while also failing to provide its own witnesses.

Justice Crane-Scott said the Chief Justice had found support for Mr Barrett from Mr Curling, Tycoon Management’s owner, who “stated that five days after the incident, he had been contacted by Captain Robinson and informed ‘that the vessel took on some water and it capsized’” - an explanation consistent with the ship being overloaded with sand.