The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Court of Appeal judge has seemingly cautioned a colleague for straying into "judicial activism" in a case involving the termination of a 14-year veteran John Bull store manager.

Appeal justice Stella Crane-Scott said "courts should avoid" straying into making law, as opposed to interpreting the law, as she expressed concerns over how fellow justice, Sir Michael Barnett, had arrived at the same conclusion as herself and appeal justice Jon Isaacs in finding that Helena McCardy was unfairly dismissed by the luxury goods retailer.

Emphasising that "any perceived inadequacies or shortcomings" in the Employment Act had to be addressed by Parliament as the law-making body, appeal justice Scott-Crane wrote that Sir Michael, a former chief justice, had "imported" tests and rulings from UK law that were not applicable to Bahamian law.

She argued that this approach would ultimately result in the "conflating" of claims for wrongful dismissal and unfair dismissal, which have traditionally been separate under Bahamian law even though the Industrial Tribunal and judicial system have dealt with both in the same case.

"In my view, given the limitations of our [Employment] Act as presently drafted and the existing local jurisprudence, wrongful dismissal and unfair dismissal claims are completely separate claims, each with their own principles which cannot be conflated in the manner proposed in the absence of statutory intervention," Appeal justice Scott-Crane wrote.

"As I see it, unless and until Parliament sees fit to amend the Employment Act to import or adopt the criteria set out in section 98 of the UK Act, any reliance on UK Employment Tribunal cases must be viewed with extreme care."

While Ms McCardy's case was based on unfair dismissal, appeal justice Scott-Crane said Sir Michael's ruling started from the premise that there was nothing in the Employment Act to prevent the Industrial Tribunal from treating it as matter where she was improperly dismissed for gross misconduct.

The former chief justice said there were no legal limits on an "unfair dismissal" claim, and the ways in which employees can be treated as such, as it was not defined in the Employment Act. Bahamian law, as it currently stands, only says that "unfair dismissal" be determined on "the substantial merits of the case".

Sir Michael, though, used section 98 of the UK's Employment Rights Act, which defines the criteria for what is "wrongful dismissal", to find that this includes cases involving alleged misconduct where the employer was purported not to have acted reasonably in terminating a worker.

Appeal justice Crane-Scott, noting that he had "imported" UK law and judicial tests to help him reach a verdict, wrote: "With respect, this approach may fairly be characterised as judicial activism which courts should avoid.

"Any perceived inadequacies or shortcomings of the current Employment Act vis-à-vis its English counterpart should be addressed by Parliament, not by the courts. To do otherwise is essentially to incorporate into the clear words of our Employment Act, criteria and concepts which Parliament never intended to adopt."

She added: "Over the years, even in spite of the minimal criteria provided in section 35, the Industrial Tribunal and our courts have had no difficulty determining whether in any given case a dismissal was fair or unfair.

"Case law in this jurisdiction is replete with instances in which our courts at various levels have, applying the statutory test, conducted the necessary factual inquiry required by the section and either found a dismissal to have been fair or unfair.

"As I see it, the approach advocated by [Sir Michael] would see a court or the Tribunal (irrespective of an employee's pleaded case) undertaking a factual inquiry, inter alia, into whether the conduct for which the employee was dismissed was or was not so extreme as would warrant dismissal and making a finding as to whether the dismissal was both wrongful and unfair," appeal justice Crane-Scott continued.

"With all due respect, such an approach would lead to a conclusion which impermissibly conflates the existing boundaries of wrongful dismissal and unfair dismissal which, in this jurisdiction, have traditionally operated as separate claims."