The Tribune

A 25-year veteran Bahamas Power & Light (BPL) employee has been awarded a token $6,068 for unfair dismissal after she was terminated for "lewd sexual activity" in the company's cashier's cage.

Simone Fitzcharles, the Industrial Tribunal's vice-president, in a recent ruling cut the sum that Sherry Jennifer Brown would normally receive for unfair dismissal by 90 percent from the maximum $60,678 on the grounds that her actions "significantly contributed to her firing".

Despite security camera evidence from the BPL pay station at the former Post Office building proving she was guilty of the conduct cited by BPL, Ms Fitzcharles found in Ms Brown's favour on a technicality - the state-owned utility breached "procedural fairness" by failing to give her a chance to argue against her dismissal.

"No matter how slender her chances may have been to redeem herself or argue to keep her position, she ought to have had the opportunity to say why she should not be dismissed before the dismissal was carried out," the Industrial Tribunal's vice-president ruled...... "The Tribunal finds the applicant has made out her claim of unfair dismissal for this single reason."

The verdict carries an important warning for Bahamian employers in that, no matter how bad a worker's conduct or obvious the termination-related offence, due process must always be followed if they are to avoid ending up on the wrong side of such cases.

Ms Brown's downfall came after she allowed a male Post Office employee to enter the cashier's cage, which BPL treated as a "restricted area" that could not be accessed by outsiders or certain employees in order to protect its revenues, on four separate times over a 12-day period during April 2016.

While Ms Brown claimed her interaction with Kim Ferguson was "romantic", the Industrial Tribunal agreed with BPL that it amounted to "lewd" conduct that at one point extended to her "bending over, spreading her legs and lifting her dress, thereby exposing private areas of her body to Mr Ferguson and also in the presence of her work colleagues".

The ruling added: "The Tribunal cannot find it unfair that BPL considered this to be unacceptably lewd, surpassing mere unprofessional behaviour," Ms Fitzcharles wrote in her verdict. "Additionally, it would not have been unfair to say that the other acts Ms and Mr Ferguson performed as were recorded (intimate touching and kissing, for example) were inappropriate in the workplace.....

"Based on the camera footage, Mr Ferguson's main reason for visiting the cage was to find Ms Brown for the purposes of chatting closely, groping, touching intimate parts of the body and Ms Brown exposed private areas of her body. Ms Brown's witness statement mentioned she performed similar acts."

These acts, according to the verdict, took place while Ms Brown's colleagues worked at their desks. Mr Ferguson was said to have gained access when Ms Brown opened the door, or when it was left unlocked by others. Besides being "offensive to the employer", the Industrial Tribunal added that other BPL may also have been "demoralised" by it.

However, it also found that the industrial agreement between BPL and the Bahamas Electrical Workers Union (BEWU), which governed Ms Brown's employment terms and working relationship, stipulated that no employee could be dismissed unless given a chance to respond to the allegations against her.

Four factors were offered as mitigation against dismissal, or for lesser punishment, with the Industrial Tribunal finding that just one - here status as a long-standing employee of BPL with 24 years, seven months' service - was a factor that should come into play.

However, it added that there was "no early and complete frankness or admission of guilt" by Ms Brown, and she gave no apologies despite knowing her actions breached BPL's policies and the industrial agreement with the union.

"Ms Brown was not given the chance to say why she should not be dismissed before the decision was made," Ms Fitzcharles added. "If she had been given that chance there is, based on an assessment of the case she presented, a single point in mitigation that she could have advanced - that of her long service of over 24 years.

"Having heard BPL's argument and presentation, I have some doubt the employer would have been much convinced by that point in mitigation. BPL felt that Ms Brown's status as a long-standing employee made her conduct more egregious as BPL expected someone of her years of experience not to breach its trust and confidence in that manner. Yet, on balance, I cannot say her plea would have failed."

This led to the Industrial Tribunal's conclusion that Ms Brown had been wrongfully dismissed because she was denied "procedural fairness', although the award was ultimately shaved to just over $6,000.

BPL's subsequent investigation also resulted in disciplinary action against other staff in the cashier's cage for either failing to prevent Ms Brown's actions or allowing other unauthorised persons to enter the facility, with the utility ultimately dismissing the former for gross misconduct.