The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Bahamasair's challenge to the Supreme Court's "jurisdiction" to hear employee unfair dismissal cases has been rejected by the Court of Appeal.

The national flag carrier's bid to overturn an award made to Omar Ferguson, a former customer service agent, was branded a "fallacy" by the appellate court because the Bahamas' Employment Act was different from the UK and Cayman laws upon which it based its argument.

Appeal Justice Stella Crane-Scott, in delivering a unanimous June 13 verdict, said that while there were arguments against "two parallel routes" for resolving employment disputes - in this case the Supreme Court and Industrial Tribunal - this was an issue to be resolved by Parliament and not the courts.

With nothing in Bahamian statute law to prevent it, she found that unfair dismissal cases could be brought either through the Employment Act or Industrial Relations Act's trade disputes procedure.

The opposite ruling would have had major implications for Bahamian labour law and employee/employer disputes, after Bahamasair and its attorney, Ferron Bethell of Harry B Sands & Lobosky, cited the Supreme Court's alleged lack of jurisdiction to hear unfair dismissal cases as a major part of their appeal.

But the Court of Appeal found that the law for resolving employment disputes in The Bahamas was "completely different", with no "similar or equivalent" provisions to the UK and/or Cayman Islands.

Mr Bethell also argued that the numerous references to the Industrial Tribunal in the Employment Act section dealing with unfair dismissal was "a strong indication" that only that body was able to hear such claims.

However, the Court of Appeal ruled that the Supreme Court had "unlimited jurisdiction", and said: "It has been suggested that there ought not to be two parallel routes for the adjudication of disputes in employment matters. That, in our judgment, is a policy matter for Parliament......

"As we see it, if Parliament intended to oust the jurisdiction of the Supreme Court to hear claims relating to unfair dismissal, it would require clear statutory language to do so and neither the Employment Act nor the Industrial Relations Act has expressly done so.

"In our judgment, where a dismissed employee elects to institute an action in the Supreme Court arising out of the termination of his employment, there is nothing in either Act which precludes him or her from alleging that he or she has been wrongfully and unfairly dismissed. In short, both claims may be pursued in the Supreme Court, as they are in the Industrial Tribunal."

The Court of Appeal, though, did allow Bahamasair's appeal in part by reducing the damages awarded to Mr Ferguson by more than 50 per cent - from the $19,316 granted by the Supreme Court to $9,100.

It found that Senior Justice Stephen Isaacs had wrongly calculated Mr Ferguson's compensation by basing this on the formula provided by the Employment Act for wrongful dismissal cases, rather than unfair dismissal.

Recalling the facts of the case, the Court of Appeal said the former Bahamasair employee was hired in 1997 as a customer service agent at Lynden Pindling International Airport (LPIA) with the stipulation that he would be terminated if his airport security clearance was ever withdrawn "for any reason".

Mr Ferguson was placed on long-term disability leave in 2008 after a job-related injury. During this period, he was arrested in Atlanta and charged with "conspiracy to possess a controlled substance". Despite being held in the US for four months, he was eventually released with the charges dropped, and returned to the Bahamas on April 2, 2011.

Two days after his return, Mr Ferguson went to Bahamasair's human resources office to collect the disability benefits that had accumulated. He was told, though, that he may have difficulty in getting security clearance from the Airport Authority.

Unable to obtain this, he received a letter on April 7, 2011, from Bahamasair terminating his service. The letter, though, was dated March 31, 2011 - two days before he returned to the Bahamas.

With no prior notice of the termination, and "no opportunity" to challenge Bahamasair's action via disciplinary proceedings or otherwise, Mr Ferguson and his attorney, Craig Butler, launched Supreme Court proceedings.

Backing the Supreme Court's findings, the Court of Appeal noted that the termination was issued when Mr Ferguson was still overseas. "The evidence clearly disclosed that on 4 April, 2011, when he attended the appellant's office to collect his accumulated benefits, he had already been dismissed from his job.

"Even more egregious is the fact that the termination letter was only handed to him on 7 April, 2011, by which time his contract of employment had already been effectively terminated for seven days."

The Court of Appeal said the unfairness of the dismissal was highlighted by the fact he was not actively working at LPIA, meaning that a security clearance from the Airport Authority was not essential. It added that Mr Ferguson was also entitled to "the presumption of innocence", as all charges against him were dropped.

"As we see it, the appellant acted precipitously by unfairly terminating the respondent's contract without a hearing, and before hearing from him or allowing him the opportunity to make representations to the Airport Authority to have the clearance restored," the Court of Appeal found.

"Had the appellant given the respondent the opportunity to appeal the withdrawal of his security clearance with the Airport Authority, and had his efforts proved futile, the issue of frustration of the contract of employment would have been definitively settled. In such circumstances, the appellant could doubtless have argued with confidence that no explanation or mitigation by the respondent could alter their decision to formally terminate him.

"As things stand, the appellant acted in haste and in breach of [the Employment Act]. They did not wait or allow the respondent to seek restoration of the security clearance with the Airport Authority. In such circumstances, the appellant could not, in our view, properly take the view that no explanation or mitigation from the respondent could alter their decision to dismiss.

"Quite simply, the respondent had a statutory right not to be unfairly dismissed and, at the very minimum, the appellant was required to hear his explanation or mitigation and give him the option to approach the Airport Authority before he was dismissed."