The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Atlantis failed to exhaust all options in finding a suitable post for a 30-year disabled veteran, the Court of Appeal ruled yesterday, describing the case as a legal "first" in The Bahamas.

The court, unanimously upholding an earlier Industrial Tribunal verdict, said the $91,279 wrongful dismissal case brought by Cheryl Carey-Brown had exposed gaps in the Employment Act when it came to determining whether employers had made reasonable efforts to accommodate disabled workers.

Its ruling, delivered by acting appeal justice, Sir Michael Barnett, found that Atlantis had not shown it would suffer "undue hardship" in finding a morning shift for the assistant restaurant and bar manager after she suffered a "serious nerve injury" in an October 2009 car accident.

Following a year's sick leave, Ms Carey-Brown returned to work, but Atlantis and its Island Hotel Company affiliate were warned by her doctor that she could not work night shifts due to the medication she was taking. They were also informed that she could not lift heavy objects or stand for long periods of time.

Ms Carey-Brown was initially placed at the Ocean Club Golf Course while the manager there was on two week's vacation, before she returned to her normal post at the Coral Towers. After being placed on five weeks' vacation, she was informed that Voyager's - one of the restaurants she was scheduled to work at - was moving to evening shifts only.

Following discussions with management over her doctor's warning, Ms Carey-Brown was told to "stay home" in January 2011 and she never returned to work. Following a September 2011 examination and report by Atlantis's doctor, Dr Walkine, the Paradise Island mega resort told her she was being terminated for "partial disability".

It subsequently offered a $4,800 cheque and letter to help her claim disability benefits from the National Insurance Board (NIB) - terms that were rejected by Ms Carey-Brown, who initiated proceedings through the Labour Department and then the Industrial Tribunal.

Atlantis, in its defence at the Tribunal, argued that the termination was justified because of "non-performance" and Ms Carey-Brown's failure to "meet attendance requirements of her job". The resort argued that she had to be active to perform her duties, and the doctors' reports showed she was unable to do so.

It also argued that "no suitable alternative" positions were available, and that it could "not accommodate" her on another post - which was rejected by the Industrial Tribunal. GIven Atlantis's sheer size, number of departments and benefits such as sick pay, it found "it is reasonable to say the respondent could have found an alternative to dismissing" Ms Carey-Brown.

"An enterprise such as [Atlantis] has many departments that may have satisfied the applicant's [Ms Carey-Brown] tenure, position and experience gained over 30 years of employment", the Tribunal added in a verdict appealed by the resort.

Sir Michael, writing the appeal court's unanimous verdict, said the key issue was whether Atlantis had made all possible efforts to find an alternative post for Ms Carey-Brown without causing itself "undue hardship" in the process. If it could prove the latter, then the resort could argue that the employment contract had been "frustrated" as a result of her disability.

"An employment agreement cannot be held to be frustrated by an employee's disability unless the employer can show that he could not accommodate the disabled employee without incurring undue hardship," Sir Michael wrote.

"In this case, the evidence does not show that - at the time of the dismissal - [Atlantis] was mindful that it had a duty to accommodate unless it would cause undue hardship."

Noting that the Bahamas does not have laws similar to the UK's Equality Act, which deals with workplace relations involving disabled employees, Sir Michael said the Employment Act also failed to set out how companies should "accommodate" such workers.

"Regrettably, our Employment Act does not provide similar guidance as to what is meant by 'reasonable accommodation' and/or 'undue hardship'," Sir Michael wrote. "As far as we are aware, this is the first time that our courts have been asked to evaluate whether an employer has discharged its obligation to provide reasonable accommodation for an employee with a disability."

Turning to legal precedent from other jurisdictions, Sir Michael said Atlantis seemed to have ignored the legal issues and "simply determined that it had no other available job for a restaurant manager other than one which required the employee to work at night......

"The evidence does not show that [Atlantis] considered adjusting her work schedule to allow her to work in other restaurants during the day and/or considered adjusting the schedules of those managers without disability who were able to work in the night. The evidence established that [Ms Carey-Brown] could properly discharge her duties as a manager in the day."

While Atlantis felt the absence of day shift vacancies meant it could not accommodate her, Sir Michael added: "In our judgment the law requires more. The burden is on [Atlantis] to show that it could not accommodate [Ms Carey-Brown] with her disability without incurring undue hardship.... They have not done so and therefore cannot rely on that as the basis for bringing the contract to an end."

The Court of Appeal upheld her wrongful dismissal claim.