The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Trade union allegations that the Attorney General “misled” the Bahamian people over the Sandals ‘nolle prosequi’ were yesterday met with counter-claims that the criminal prosecution was intended as a mere “bargaining chip”.

Obie Ferguson, the Trades Union Congress (TUC) president, told Tribune Business that Allyson Maynard-Gibson and her officials had suggested there was “no obstacle” to a private prosecution of Sandals Royal Bahamian and its top executives when he met with them in late July.

He implied that the Attorney General performed a complete ‘u-turn’ on this position within 18 days by directing the magistrate’s court to discontinue the action, a move that he yesterday described as “a serious breach of trust” for the 600 terminated Sandals workers.

And Mr Ferguson also took issue with Mrs Maynard-Gibson’s inference that the two ongoing Supreme Court cases, involving Sandals Royal Bahamian and the Bahamas Hotel, Maintenance and Allied Workers Union (BHMAWU), played a key role in her decision.

The TUC president told Tribune Business that the union’s ‘unfair dismissal’ action was only filed with the Supreme Court on August 19, some four days after the Attorney General signed the ‘nolle prosequi’, making it impossible for this to be a factor in her decision-making.

He also argued that the Sandals’ Judicial Review, challenging the very basis of the union’s existence, should not have been a factor either, because it was against the Registrar of Trade Unions (director of labour) - not the union.

Mrs Maynard-Gibson declined to comment when contacted by Tribune Business yesterday, saying she did not wish to add to her previous public statement on the matter.

However, sources close to the Government’s position said it was highly unlikely, if not impossible, that the Attorney General and her officials would have given an opinion on a potential Sandals criminal prosecution to Mr Ferguson.

“The Attorney General’s Office does not advise the private sector on its legal business,” one source, speaking on condition of anonymity, said. They added that Mr Ferguson, as an attorney himself, should not need legal advice.

Pointing out that Mrs Maynard-Gibson did not need to explain, or give a reason, for the ‘nolle prosequi’ decision, the source emphasised that she was within her legal and constitutional rights to act as she did.

Suggesting that the Sandals’ Judicial Review was reason enough for Mrs Maynard-Gibson to act, they echoed the explanation given by Sandals’ attorney, Wayne Munroe QC, that the criminal prosecution was tantamount to an “abuse of the judicial process”.

Mr Munroe last week explained that litigants could not initiate a matter in a lower (magistrate’s court) when it was already before a higher authority in the shape of the Supreme Court - an established legal precedent that he argued applied to the Sandals matter.

The Government source suggested the issue went even further, and that the Attorney General could not allow the BHMAWU and its officers to abuse the judicial process by “using the criminal courts as a bargaining chip”.

They alleged that the union subsequently conceded as much, implying that the criminal prosecution was merely for leverage, and to strengthen its negotiating position, by trying to force Sandals Royal Bahamian to the bargaining table.

Not surprisingly, Mr Ferguson did not see it that way. “We met with the Attorney General on July 28, 2016,” he told Tribune Business. “I think we met with her, the director of legal affairs, the deputy director of legal affairs, and others.

“The Attorney General, along with her team, said that they saw no prohibition on any initiated private prosecution against West Bay Management, trading as Sandals.”

Mr Ferguson said Prime Minister Perry Christie had directed himself and the labour movement to meet with the Attorney General to address both the Sandals situation and other trade union grievances.

“The Prime Minister recommended that we meet with the Attorney General to see whether or not we - the union and the Attorney General - can find a position of law that will allow him, the Prime Minister, to enter the discourse from the public interest point of view,” the TUC president added of the Sandals situation.

Mr Ferguson added that the BHMAWU also had “a problem” with Mrs Maynard-Gibson’s public statement on the two existing legal cases involving the union and Sandals.

“She is attempting to give the Bahamian public the impression that there was an action filed by the union prior to August 15,” he told Tribune Business.

“On August 19 is when we filed an unfair dismissal action. What she is trying to say to the public is that this writ was filed before August 15, and that was the basis on which she signed the nolle. That cannot be right, as the writ filed by the workers was filed on the 19th.

“The point I’m trying to make is that she is misrepresenting the facts, and the information she gave is not accurate, not correct. The writ was filed on the 19th, some four days after she signed the nolle. It is totally inaccurate to suggest this writ was part of her consideration prior to signing the document on August 15.”

Mr Ferguson said Mrs Maynard-Gibson even asked him for a copy of the unfair dismissal writ “a week or so” after it had been filed.

As for the Judicial Review, Mr Ferguson said the Attorney General had ignored the BHMAWU’s 2001 certification of registration; its August 2009 recognition as the bargaining agent for Sandals Royal Bahamian’s non-managerial staff; and the February 2011 ruling from the Privy Council that upheld the latter position.

Although Sandals is challenging the very basis for the union’s legal existence on different grounds, Mr Ferguson told Tribune Business: “If she had examined the situation properly, she would have realised the basis on which she issues the nolle is flawed, baseless, vexatious and has absolutely no merit.

“We say she ought to apologise to the 600 workers, to the workers of the Bahamas and the Bahamian people.”