The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Bahamas Power & Light (BPL) managerial union chief will today seek permission to appeal a verdict that slashed his “handsome windfall” of $621,000 in termination compensation by more than 75 percent.

Ervin Dean, who was senior manager of credit and collections at the state-owned electricity monopoly when dismissed on September 22, 2017, will appear at the Court of Appeal seeking leave to argue before the London-based Privy Council that the original award should stand rather than be reduced from 74 months to just 18.

Legal documents, filed on June 8, 2022, reveal that Mr Dean’s appeal is based on his contention that the Court of Appeal “failed to give any weight” to evidence allegedly showing BPL “had established a practice whereby terminated managerial personnel were fully compensated for the length of their contract period”.

As a result, he contends that he should have been paid for the remaining six years and two months of his contract - as former Supreme Court justice Ruth Bowe-Darville found in the initial verdict, when she awarded Mr Dean the equivalent of 74 months’ compensation for his termination.

This, though, was reduced substantially by the Court of Appeal, which ruled that the 74-month payout was “unduly generous” and that there was “no evidence to support such a handsome windfall”. It slashed the award to 18 months, describing this as “reasonable compensation in lieu of notice”.

With Mr Dean’s award cut to $174,806, the Court of Appeal reduced this further by deducting two previous payments BPL made to him worth $97,608 and $10,981, respectively, representing a mix of termination and accrued vacation pay plus Christmas bonuses. And, taking into account a further $20,792 “ex-gratia” payment made by BPL to the ex-union president, the Court of Appeal ruled that just a further $45,425 was due to Mr Dean.

Now seeking permission to appeal this decision to the highest court in the Bahamian judicial system, Mr Dean is asserting that the Court of Appeal “erred” in “law, fact and procedure” by cutting his breach of contract claim to just 18 months’ worth of damages.

He alleges that it “incorrectly classified the loss of future income award as a claim for payment in lieu of notice” and, as a result, failed to award any breach of contract damages despite BPL purportedly admitting to such a violation. And the former union chief is arguing that he ought to have received damages for wrongful and unfair dismissal on the grounds that BPL failed to comply with the disciplinary procedures in his contract and the union’s industrial agreement.

Court of Appeal justice Jon Isaacs, in a June 16, 2022, ruling that ordered Mr Dean to pay 80 percent of BPL’s legal costs, suggested the legal battle might have been avoided if the state-owned utility had been less “stubborn”.

“In my view, had the appellant (BPL) approached the respondent’s (Mr Dean) claim with a counter-offer commensurate with the respondent’s position under Article 14(2) of the industrial agreement, legal action may have been forestalled,” he wrote. This came after the main verdict, in which he branded BPL’s offer of one month’s salary in lieu of notice to Mr Dean upon his termination as “unduly niggardly” and “woefully deficient”.

Mr Dean, who was 54 years-old when terminated, and had just celebrated 30 years’ service with BPL, asserted that he was dismissed “unjustly” and that he should have been compensated in accordance with the management union’s industrial agreement with BPL.

Former justice Bowe-Darville found that BPL had breached Mr Dean’s employment contract. She calculated total damages due to him, including a $71,564 pension contribution; $29,6900 rostering allowance; $29,600 for health insurance contributions; and a $20,054 private car allowance over those 74 months, at $750,012.

However, from the latter figure, she deducted the $97,608 and $10,981 already paid by BPL to Mr Dean. And the Court of Appeal verdict revealed how ex-justice Bowe-Darville had directed during the trial that the $20,792 “ex-gratia” payment be made to the ex-union chief even though he had initially rejected it. When these three payments were deducted, the $621,000 in remaining compensation was arrived at.

However, while the Court of Appeal upheld the Supreme Court’s findings that Mr Dean was entitled to a greater payout than the minimum stipulated by the Employment Act, it rejected the 74 weeks’ award. Appeal justice Isaacs wrote: “I am satisfied that 74 months is unduly generous to the intended respondent as the period for which he should receive payment.

“Equally, I am satisfied that given the factors mentioned in article 14(2) of the industrial agreement, one month’s salary in lieu of notice is woefully deficient. There was insufficient material before the judge to arrive at the period of 74 months. There was no admissible evidence to suggest there was any custom of the intended appellant to justify such a payout.

“What may have been received by the former employees... could not be used to form the basis of a custom. There was nothing in the industrial agreement to suggest that the intended respondent was entitled to any better compensation than what he actually received..... Thus, although 74 months is unduly generous, I hold the view that one month was unduly niggardly in the circumstances,” he continued.

“The judge’s order for payment of 74 months must be set aside as there is no evidence to support such a handsome windfall. I might add that not even counsel for the intended respondent could provide a precedent or authority that supported such an extraordinary period of time. In my view, the amount the judge awarded is so excessive that an appellate tribunal would be justified in interfering with her assessment.”