The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Bahamas Power & Light (BPL) has been accused of “acting arbitrarily and capriciously” by a second trade union seeking to overturn suspensions/terminations related to the $2 million fraud probe.

The Bahamas Electrical Utility Managerial Union, in a July 20 originating summons, is seeking Supreme Court declarations that the suspensions of two middle management executives in BPL’s finance department - and the termination of another - are “null and void”.

The union and its attorney, Obie Ferguson, are arguing that the electricity utility breached their registered industrial agreement by failing to provide the trio with reasons for their suspensions/terminations as required by Article 15 (17).

The three impacted workers include James Dean, an accounting officer, who was suspended - then terminated - after he was issued with letters by BPL on May 15 and 19. The other two, who have only been suspended, are Garnell Sheppard, assistant accounts manager, and Ene Maura, finance manager. They received their letters on June 30 and July 3, respectively.

Mr Ferguson yesterday told Tribune Business that the case launched by the union and three employees had been postponed until this Friday, September 8, when it will be heard before Justice Ian Winder.

Confirming that the matter related to the BPL fraud probe, Mr Ferguson said the declarations sought by the BPL middle managers’ union were designed to ensure the utility monopoly “follows the letter of the industrial agreement”.

“They have a right to suspend,” he added of BPL, “but if they suspend somebody for something they’ve done, they’ve got to tell them what it is and give them an opportunity to be heard. They’ve not been heard.”

Apart from confirming that the registered industrial agreement between the union and BEC, BPL’s parent, is binding on both the utility and the union and its members, Mr Ferguson also wants a Supreme Court declaration that the company is “legally bound” to follow Article 15 (17).

This stipulates that whenever an employee is warned, suspended or dismissed, a written notice “shall be given to the employee and to the union setting out the reasons for the warning, suspension and dismissal”.

This procedure, the Trades Union Congress (TUC) president contends, was never followed in relation to the BPL fraud probe. As a result, the union and three employees are arguing that BPL “acted unfairly, arbitrarily and capriciously” towards them “by failing to tell them the reasons for the suspensions and terminations”.

Mr Ferguson told Tribune Business: “We’re basically seeking a declaration from the court requiring the employer to follow the letter of the industrial agreement, and that is before you terminate a worker.

“Wherever there is a union, you have to say to the worker what they are being terminated or suspended for. The worker needs to be in a position to respond to those charges, and you still ensure the rights of the employer.

“They have a right to suspend, but they have to make sure that if they’re accusing someone of something, they have to let them know what it is.”

Mr Ferguson added that the action also sought to clarify an important point of law, namely whether properly-registered industrial agreements are equivalent to statute law and code.

“I think it’s very, very important, and that’s the reason why I’ve decided to do it; to get it cleared up for industrial relations in general,” Mr Ferguson told this newspaper.

He and the BPL middle managers’ union are seeking Supreme Court declarations that a registered industrial agreement “abrogates” the common law relationship between employer and employee, and that the former is “mandated” to follow the agreement’s terms.

If a registered industrial agreement is declared to be equivalent to statutory code, Mr Ferguson and the union are arguing that it “cannot be varied by the courts” during its existence.

They also want a Supreme Court Order requiring BPL to comply with the industrial agreement’s terms, and an injunction to prevent the utility “unilaterally varying” the deal by ignoring its conditions.

“The industrial agreement is a creature of statute once registered,” Mr Ferguson argued. “It takes on a statutory code, and is equivalent to being part of the statute. No one person can change a statute, and the court cannot vary unilaterally a registered industrial agreement.

“We’re saying that BPL must be made to follow the letter of the industrial agreement, and it must be meticulously followed. If they are allowed to do what they did, the whole industrial agreement is rendered nugatory.”

Oscar Johnson of Higgs & Johnson is representing BPL in the case. Wayne Munroe QC, who is representing the line staff terminated in relation to the BPL fraud probe, was also understood to be present in court on a ‘watching brief’.

The BPL fraud probe relates to an alleged scheme were cheques were written, and paid out, to allegedly fictitious companies for work never carried out for the utility. A forensic audit was conducted by Ernst and Young into the purported five-month long scheme, which involved 44 cheques paid out to 16 vendors between December 16, 2016 to May 9, 2017.

The issue has soured relations between BPL’s Board and its management company, PowerSecure, with the former demanding that the US utility operator repay the $1.9 million said to have gone missing.