The Tribune

• Union hits at three-installment payouts

• Labour chief: Formula illegal unless agreed

• Attorney: Resort exposed to ‘unfair dismissal’

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The hotel union’s president yesterday said the 700 terminated Atlantis workers have been advised not to accept their redundancy payouts through the three installments offered by the resort.

Darrin Woods, the Bahamas Hotel, Catering and Allied Workers Union (BHCAWU) chief, told Tribune Business that a communication had been sent to both union and non-union workers urging them not to accept a formula that contravenes the Employment Act.

The Act’s redundancy/termination provisions require that all severance pay and due benefits, such as accrued vacation, be paid out upfront when the worker exits their place of employment for the final time.

However, the 700 terminated workers - as reported by Tribune Business on Wednesday - were informed by Karen Carey, Atlantis’ senior vice-president of human resources, that their due severance and other benefits owed will be paid in installments on May 27, June 24, and July 22.

“We’ve sent a communication to our members not to sign for installment payments unless they want it,” Mr Woods disclosed. “We sent a communication out to inform persons, not only union members but all workers, not to sign unless they want it. They should not be held in a corner by someone holding a carrot over their head.

“You’ve been out for 14-15 months on furlough already. If the company is taking an additional three months to pay you, wait that time of you get your monies upfront.... If the law says what you ought to be doing, you by yourself cannot unilaterally change what the law says.”  

Atlantis did not respond to this newspaper’s requests for comment before press time last night, so it is unclear why the Paradise Island mega resort has elected to pay severance and other benefits in installments.

However, Dionisio D’Aguilar, minister of tourism and aviation, earlier this week said the Government had been mindful of Atlantis’ “cash flow” issues when it was pressing the resort to finally decide the fate of furloughed staff, many of whom had wanted to receive their severance packages and move on.

It is unclear whether the installment plan reflects Atlantis’ financial challenges due to the tourism devastation inflicted by COVID-19, although this is a likely explanation. Ms Carey reiterated this in her message to the 700 terminated employees, saying: “Due to the impact of COVID-19, Atlantis had to evolve its business strategy and implement measures to ensure the company’s financial stability.

“The current pandemic situation has impacted our business significantly and, as a result, we find that we must make some incredibly difficult decisions regarding our business. Regrettably, the hardest decision impacts some of our valued team members.” Ms Carey said their employment will end this Sunday, May 23, one day before the Whit Monday holiday.

Meanwhile, John Pinder, director of labour, confirmed to this newspaper that it was illegal for a company to pay termination monies in installments unless the employee agrees to it. “Based on the Employment Act, the law doesn’t allow an employer to pay in installments unless the employee or bargaining unit says so,” he explained, adding that individual workers have already complained.

“You must pay out all the redundancy upfront. You’re not allowed to pay in installments unless it’s agreed to. I think that matter is being addressed by the union and Atlantis, and should be resolved.”

Mr Woods argued that, if Atlantis is facing financial challenges, it should structure the terminations according to the collective dollar sum it can afford and release the workers in phases while giving them their due severance upfront.

He said that “what is also concerning” was the seemingly slow response of the Ministry and Department of Labour, given that they were responsible for enforcing the relevant laws. Mr Woods said the hotel union had been “on him again”, in relation to Dion Foulkes, minister of labour and transportation, to request that he “follow up” in a bid to resolve the matter.

“We’ll have to wait and see what the effective date [of termination] is based on the notice given,” he added. “The law requires them to give two weeks’ notice [to the minister] in writing, and if they fail to do that there’s additional payments owed.”

Mr Woods said he was still waiting to receive the list of terminated employees from Atlantis, so that the union could begin the process of calculating with the severance pay coming to its members was accurate, and also negotiate to see if the numbers can be reduced and persons redeployed elsewhere in the business. The resort has until May 23 to do this.

Meanwhile Obie Ferguson, the Trades Union Congress (TUC) president and labour attorney, argued that Atlantis had opened itself to unfair dismissal claims from the impacted workers through the installment payout formula.

“They’re in breach of the redundancy clause in the Employment Act in that it requires redundancy to be paid on or before the date of redundancy,” Mr Ferguson argued. “These people have been terminated on May 18, and the payments have been divided into three.

“They may have opened themselves to unfair dismissal from the failure to follow the redundancy provisions in the Act. It’s a fact that redundancy took place on May 18; it’s a fact the company proposed to make payments on May 27, June 24 and July 22. This set of circumstances renders the decision by Atlantis to be unfair, and the workers can go and file for unfair dismissal and receive extra compensation under the Act.”

Mr Ferguson said he had advised several terminated Atlantis managers, who had contacted him yesterday, that there was no legal obligation that they must sign the “deed of release” submitted by Atlantis in order to receive their due severance.

Documents seen by Tribune Business show Atlantis and its Island Hotel Company affiliate are tying the payments to terminated staff signing a “release” that would prevent them from bringing any future legal claims against the resort in relation to their employment.

And Mr Ferguson also argued that the terminated managers were entitled to an extra month’s pay, on top of what is owed to them under the Employment Act, because they had failed to notify Mr Foulkes, in his capacity as minister of labour, of the redundancies two weeks in advance as required by the Employment Act.

He added that the 14-15 months that terminated staff have spent on furlough should also be included in their severance pay calculations by the Paradise Island mega resort.