The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Weaknesses in the Bahamian judicial system prevent many employees from seeking redress for discrimination and other forms of victimisation, the US State Department is arguing.

Its 2018 human rights report, released this week, said the Bahamian government fails “to effectively enforce” many aspects of this nation’s labour laws, including those designed to prevent employment discrimination in multiple forms.

“The law prohibits discrimination in employment based on race, colour, national origin, creed, sex, marital status, political opinion, age, HIV status, or disability, but not based on language, sexual orientation or gender identity, religion, or social status,” the US State Department report said.

“The government did not effectively enforce the law, and while the law allows victims to sue for damages, many citizens were unable to avail themselves of this remedy due to poor availability of legal representation and the ability of wealthy defendants to drag out the process in courts.”

The report noted that there was “a case backlog of up to three years at the Industrial Tribunal”, which further exacerbates the difficulties employees with legitimate grievances encounter in trying to bring actions against employers with deeper financial pockets.

The government has established the Office of the Public Defender to give low income Bahamians access to better legal representation, but its remit appears not to extend to the multiple employment-related disputes that are a prominent feature of the system.

The US State Department report, meanwhile, noted a case reported on by Tribune Business in which the Court of Appeal found the Employment Act was notably silent on how companies should treat workers with disabilities.

“On September 18, the Court of Appeal upheld the wrongful dismissal claim of a woman who was fired from her job as a restaurant manager at the Atlantis Paradise Island resort because she suffered a ‘serious nerve injury’ that left her unable to carry out her duties,” it said .

“The court ruled that the Atlantis resort did not make reasonable efforts to accommodate the worker in another position. The judge noted the Employment Act fails to set out how companies should accommodate workers with disabilities.”

Elsewhere, the US State Department report said the Bahamas’ minimum wage, which was increased from $4 to $5.35 per hour in 2015 was “well above the established poverty line of B$4,247 per annum”.

It added that Ministry of Labour inspections to enforce occupational health and safety standards “occurred infrequently”, and said: “It was uncertain whether these inspections were effective in enforcing health and safety standards. The Government did not levy fines for non-compliance but occasionally forced a work stoppage. Such penalties were not sufficiently stringent to deter violations.”

Further weaknesses, according to the US State Department report, exist when it comes to preventing forced labour. “The law prohibits all forms of forced or compulsory labour. The Government did not always effectively enforce applicable law, due to lack of capacity...

“Local non-governmental organisations noted that exploited workers often did not report their circumstances to government officials due to fear of deportation and lack of education about available resources. Penalties for forced labor range from three to 10 years’ imprisonment and were sufficiently stringent to deter violations.”

The report added: “Undocumented migrants were vulnerable to forced labour, especially in domestic servitude and in the agriculture sector, and particularly in the outlying Family Islands. There were reports that non-citizen labourers, often of Haitian origin, were vulnerable to compulsory labour and suffered abuses at the hands of their employers, who were responsible for endorsing their work permits on an annual basis.

“Specifically, local sources indicated that employers required non-citizen employees to ‘work off’ the work permit fees, which ranged from B$750 to B$1,500 for unskilled and semi-skilled workers. The risk of losing the permit and the ability to work legally within the country was reportedly used as leverage for exploitation and potential abuse.”