The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A FORMER steel worker has lost his bid to prove that a Supreme Court judge was wrong to find that he was not unfairly dismissed by his employer, but instead abandoned his job because he didn't like his supervisor.

The Court of Appeal ruled that Justice Ian Winder was not wrong in finding that Island Industries Bahamas Limited did not fire James Brown, but that the man left the job site and never returned because of a vendetta.

As a result, Mr Brown, who was seeking $2,000 of three weeks accrued vacation pay and an additional $1,000 plus of holiday pay, must now pay his former employer's legal costs for the appeal.

According to the ruling, sometime in November 1984, Island Industries agreed to employ Mr Brown pursuant to the terms of an oral employment contract. The company continued to employ Mr Brown until July 2016.

At that time, Island Industries was alleged to have unfairly terminated Mr Brown's contract against his right not to be unfairly terminated pursuant to Section 34 of the Employment Act, 2001. At the time of the alleged termination, Mr Brown made $2,972.66 per month.

Sometime on or about July 2016 when he reported to work, Mr Brown was told by a company representative to go to the office the following morning. Mr Brown did as instructed, and when he did so, the company's general manager, Michael Donald, refused to put him to work.

When Mr Brown inquired why he wasn't working, Mr Donald allegedly told him that the foreman said he did not want to work with him. When Mr Brown asked what he would do moving forward, Mr Donald told him that he would not work until Island Industries got a big job. When asked where that left him, Mr Brown was told to "do whatever and get back to him."

Island Industries never called Mr Brown back to work, it was claimed.

On October 10, 2016, Mr Brown reported for work. However, Mr Donald refused to talk to him. After some time, Island Industries stopped paying Mr Brown his weekly salary from July 2016 and also refused to assign him duties he was able to complete.

Additionally, throughout his 30 plus years with Island Industries, Mr Brown was never given a warning letter concerning his performance or lack thereof.

On October 3, 2016, Mr Brown served a trade dispute on Island Industries. It was at that time that a letter dated August 30, 2016, was given to Mr Brown by the company's secretary.

That letter, according to the ruling, expressed the company's position that Mr Brown was "not terminated and there was never any implication" that he was ever terminated.

After the August 30 letter was received, a conciliation meeting was conducted by a labour officer.

Island Industries filed a defence, essentially denying that Mr Brown's employment had been terminated. The company claimed that given the nature of the construction industry, there are periods of "slow or no activity". During those periods, Mr Brown would usually secure other means of temporary engagement, and when ready, would check back with Island Industries to inquire about new jobs. Afterwards, he would return to work and "simply pick up where he left off".

The company also denied that Mr Brown was terminated. It said the man of "his own volition never returned to work". Island Industries also clarified the issue about the foreman saying that the company did not want to work with Mr Brown.

The company said that in July 2016, Mr Brown had been assigned to work under the supervision of foreman Robert Laramore on the Bahamasair hangar's renovation. That project was the only significant job going on at the time, according to Island Industries.

The company said it was "no secret" that Mr Brown had a "personal dislike" for Mr Laramore, and thus the two were rarely assigned to work together on the same job. However, because the Bahamasair project was the only major project that Island Industries had at the time, Mr Brown was assigned to Mr Laramore's team.

Within weeks, Mr Laramore appealed to Mr Donald to speak with Mr Brown because he refused to follow the foreman's instructions and was creating disruption on the job. When Mr Brown was approached on the matter, he told Mr Donald that he refused to work with Mr Laramore going forward. Mr Brown was subsequently reminded that since the Bahamasair project was the only job that was ongoing, there was nothing else available for him at the time.

However, Island Industries said Mr Brown "determined for himself that he would not work with Mr Laramore, and so made the decision not to return to work".

Island Industries also maintained that after that situation, it expected that Mr Brown would check in from time to time to see if any new jobs had come in, as was his usual practice. However, the company said Mr Brown "never presented himself for work, neither did he call in".

The company, by a letter dated November 24, 2016, expressed its position that Mr Brown was not terminated. The company also stated that Mr Brown left the job that August despite work being available for him. The letter also stated that it had "uncollected mail and holiday/vacation pay in our office" for him.

"Your position here is still available but we cannot hold it open indefinitely," the letter said. "If you have not returned to work before the end of this month we will assume you have abandoned your position and this company and we will consider you as resigned."

In any event, Island Industries said it had no means of communicating directly with Mr Brown, as he used the company's phone number and mail box as a "personal point of contact for himself".

Justice Winder, in canvassing the evidence, determined that the central issue for determination was whether Mr Brown was dismissed unfairly as was alleged, or whether he "abandoned the job and did not return" as the company claimed.

Justice Winder ultimately ruled: "The defendant had not released him from duty.

"He chose to absent himself because he did not wish to work with a particular supervisor, and determined thereafter that he would not return. In so doing, he repudiated his terms of employment and voluntarily vacated same."

Mr Brown appealed that decision on five grounds, but only the first ground succeeded. However, the appellate court said notwithstanding the success of the first ground of appeal, that claim was "unnecessary" given Island Industries' "stance throughout the history of this matter".