The Tribune

• Settles, instead of contesting, claim by 36 managers

• PLP senator among likely beneficiaries of reversal

• Change follows election, PLP’s MoU with unions

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Government has reversed course and settled a wrongful/unfair dismissal claim by 36 current and former Grand Lucayan managers that it previously won before the Supreme Court.

Sir Michael Barnett, the Court of Appeal’s president, in a short oral judgment read out on January 18, 2022, said the attorneys representing the Government-owned hotel and Bahamas Hotel Managerial Association (BHMA) members had confirmed “the matter has been resolved” and the union’s representative “does not intent to pursue the appeal” as a result.

Obie Ferguson QC, the Trades Union Congress president and BHMA attorney, told Tribune Business yesterday that the dispute had been settled but both parties had agreed not to disclose the terms.

“I agreed that we were not going to disclose the content of the settlement. I thought that was fitting,” he said. “The Government saw fit to resolve it, it’s been resolved and I have to meet with the successful parties and we will deal with the matter. We agreed not to disclose the details. We’re very, very pleased with that.”

Robert Adams QC, attorney for Lucayan Renewal Holdings, the Government-owned entity that holds a hotel which remains up for sale, could not be reached for comment yesterday. However, one source, speaking on condition of anonymity, said of the Government and hotel: “They’ve settled with the BHMA. Against that backdrop, there was no need for the BHMA to prosecute the appeal.

“They reached an agreement, the terms of which have not been disclosed, but it’s something the union is obviously happy with. It’s a new day, peace, love and harmony between the Government and the unions.”

The Government’s sudden, sharp u-turn contrasts with the position taken under the former Minnis administration, where Lucayan Renewal Holdings and its then-Board was all set to vigorously contest the appeal by the middle management union and its members after Justice Petra Hanna-Adderley ruled in the resort’s favour at the Supreme Court level.

The 180-degree reversal appears to have occurred following the September 16 general election and change in government. The Davis administration signed a pro-labour Memorandum of Understanding (MoU) with Mr Ferguson’s TUC and the National Congress of Trades Unions of The Bahamas (NCTUB) in August, committing to labour-friendly reforms if elected to office.

And Kirkland Russell, the BHMA’s vice-president and one of the plaintiffs in the legal battle against the Grand Lucayan, unsuccessfully contested the central Grand Bahama seat on the Progressive Liberal Party’s (PLP) behalf and now sits in the Senate as one of its representatives in the upper chamber.

Each BHMA member claimed five-figure sums averaging in the $40,000-$50,000 range as a result of their termination from the resort, taking the total sum sought in their wrongful/unfair dismissal claim into the $1m-plus range. It is unclear whether this is now the price tag that Bahamian taxpayers will have to pay as a result of the decision to settle.

Michael Scott QC, the Grand Lucayan’s former chairman, last night told Tribune Business that the resort would have contested the BHMA appeal if the Minnis administration had been elected to office, as well as seeking to overturn the award of notice pay and wages - minus unemployment benefit payments - to Mr Russell for the period between the March 2020 COVID shutdown and termination.

“I stand by the decision of the then-Board to contest the appeal,” he said. “We were successful before the first judge, and we would have been successful on appeal..... There was never any merit to the entire case. It was misguided, it was misconceived and there was never any judicial basis for bringing that action to begin with.

“This was an attempt to bring a meritless claim that they had somehow been treated unfairly, and it was never redundancy. We paid them out properly when we terminated them. The whole thing was completely and utterly misguided, and that was my opinion at the time.

“But this government is entitled in the interests of the public purse to bring finality to that issue. I imagine for those reasons it was only practical that they would settle or find a basis for settlement. That truly is in the discretion of the Government.”

Mr Ferguson, not surprisingly, disagreed. “It was contentious because Mr Scott took the view that once the union agreement expired there was no union, and he had no obligation to deal with the union. That was a fundamental error made,” the TUC chief added.

“The registration of the union is separate and apart from a collective industrial agreement. The union does not need an industrial agreement for it to be a union... It was a total misunderstanding. It was like a sentence without a subject. It didn’t make sense. We had a certificate of registration for the union, determining its validity and existence, but he came in and said we’re not following this.”

Justice Hanna-Adderley, in a June 3, 2021, verdict, denied virtually all claims by the BHMA and its members stemming from the Grand Lucayan Board’s decision to terminate most of the workforce in June 2020 in accordance with the terms of the now-defunct sales agreement with ITM/Royal Caribbean.

She dismissed the case brought by three managers because they had been retained by the Grand Lucayan, and were still working there, while three BHMA executives and trustees had no standing to bring an action because they were never employed by the resort.

And she dismissed virtually all other claims after finding that most managers had signed a “deed of release”, barring them from bringing future legal actions against the Grand Lucayan, in order to receive their termination pay and other benefits. Justice Hanna-Adderley found there was no evidence to support allegations they were “coerced” into signing the releases.

The only BHMA member not to correctly sign a “deed of release” was Mr Russell, former Grand Lucayan head chef.

While finding that Mr Russell was entitled to notice pay, and his wages - minus unemployment benefit payments - for the three-month period between the COVID-19 shutdown in March 2020 and his termination, Justice Hanna-Adderley said he was not released because of redundancy but the “temporary cessation” of the Grand Lucayan’s business due to the global pandemic.

As a result, this meant Mr Russell’s wrongful and unfair dismissal claims, as well as his bid to be reinstated and the BHMA’s claim that the resort breached the Employment Act by failing to consult with it prior to the terminations, all fell away.