The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

An ex-Bahamas Public Service Union (BPSU) president has enjoyed “limited success” in securing the $72,000 in accrued vacation pay he alleges is owed following a furious legal battle.

Justice Loren Klein, in a November 29, 2023, verdict, slashed 11 years off the claim by John Pinder, who subsequently became the Government’s labour director and the FNM’s Fox Hill candidate in the 2021 general election, finding that almost 75 percent was barred by the six-year Limitation Act imposition.

The Supreme Court judge described the case as one in which “the tables are turned”, with Mr Pinder fighting to secure what he believed were his employment rights. It also pitted the former president against his successor, Kimsley Ferguson, with home he is still battling over the outcome of the recent BPSU election that has yet to be certified amid an ongoing investigation into alleged irregularities.

Mr Ferguson, who gave evidence on behalf of the BPSU’s three trustees, was described by Justice Klein in his ruling as an “unimpressive witness” who gave many “evasive” answers to “questions which he should have had no difficulty answering”. The judge branded the current union president’s evidence on several important details as “confusing and contradictory”.

“Few names have been more prominent in the fight for public workers’ rights in recent times than that of the plaintiff, John Pinder, who is one of the longest-serving presidents of the Bahamas Public Services Union (BPSU),” Justice Klein wrote. “In this claim, however, the tables are turned and it is the former union leader himself who is seeking to vindicate employment rights against the union he led for many years.”

Mr Pinder held the presidency for five successive three-year terms between 2022 and 2017, and launched legal action against the BPSU and its three trustees - Peter Outten, Theophilus Dean and Terrance Dorsett - on May 10, 2019, in a bid to claim a $71,916 vacation entitlement along with associated interest and costs.

The ex-BPSU chief claimed he was entitled to five weeks’ annual vacation leave per annum, but had “only exhausted one year’s entitlement”, and alleged that he and the union had both agreed he was owed the near-$72,000 sum. However, Mr Pinder alleged that the BPSU had “refused and continues to refuse” to make the payment.

The BPSU and its three trustees, in their defence, argued that Mr Pinder was blocked from “seeking payment for accrued vacation time after demitting office as he failed to do so during his tenure as president, hence waiving any lawful claim that he might have had”. They also alleged that the long delay before he sought the money meant the former president had effectively “acquiesced” to non-payment.

In response, Mr Pinder “claimed that he deferred his vacation entitlement due to travel commitments on behalf of the BPSU and ongoing negotiations with numerous government entities. However, he maintained that he never waived his outstanding vacation entitlements and always held the ‘legitimate expectation’ to be paid”.

Detailing the evidence presented at trial, Justice Klein noted an October 25, 2017, letter from Mr Pinder to Mr Ferguson stating that his BPSU contract included a 15 percent gratuity to be paid at its end along with accrued vacation.

He requested that these payments be made to him “as soon as possible”. However, the BPSU’s secretary-general, in a January 24, 2019, letter to Mr Pinder said the union’s Board had met on November 2, 2018, and requested that the ex-president provide evidence to support his vacation pay claim.

Justice Klein said of Mr Pinder: “According to his witness statement, the plaintiff was first elected president of the BPSU in 2002 at a starting salary of $55,000 per annum, with an annual increment of $1,000. Additionally, under the contract he received five weeks’ vacation leave, 20 sick days’ leave with pay, six call-in days, four sick days with a sick note and a 15 percent gratuity at the end of the contract.

“He was subsequently re-elected president for four consecutive terms. His salary increased to $60,000 in 2005, $65,000 in 2008, $68,000 in 2011 and $72,000 in 2014, with the additional benefits outlined under the first contract applying to the subsequent contracts..... He averred that it was the practice within the BPSU that vacation time was either taken, cashed in, or paid as directed by the Board.”

Mr Pinder said financial constraints sometimes made it difficult to “cash in my vacation entitlements in a timely manner”. Prior to stepping down in 2017, he asked the BPSU secretary-general to determine what was owed to him, and also spoke to Mr Ferguson on the matter, who suggested he was “having problems with the office records” in verifying the claim.

The former BPSU president offered to reduce his claim, and seemingly did so, then “approached Mr Ferguson on numerous occasions, and he eventually told me that he was not minded to authorise any payment in settlement of my outstanding vacation entitlements, in spite of the fact that during the tenure of my last two contracts, he served as my executive vice-president”.

Under cross-examination by Khalil Parker KC, the Bahamas Bar Association president who was acting for the union and its trustees, Mr Pinder confirmed that his five three-year contracts were separate deals but admitted he should have raised his vacation entitlements at the end if each contract and before leaving office.

Mr Ferguson, his successor, was the sole witness for the defence. “Mr Ferguson indicated that he served as the vice-president of the union during the presidency of the plaintiff, and that at no time before demitting office was the Board informed by the plaintiff that he was owed funds for his accrued vacation entitlements,” Justice Klein wrote.

“He claims, therefore, to have been taken by surprise by the plaintiff’s claim stretching back well over a decade. He further stated that it was open to the plaintiff to take his vacation leave during the periods, or to have applied for payment at the end of each of the contractual periods, to ensure that all accounts between himself and the BPSU were settled before demitting office.”

Stating that both sides’ pleadings “left much to be desired”, Justice Klein found “there was no evidence of any personal vendetta between Mr Pinder and Mr Ferguson” despite suggestions from one of the former’s witnesses that personal animosity had prevented the vacation entitlement pay-out.

“Having said that, I generally did not find Mr Ferguson to be an impressive witness. It seemed to me that many of his answers were evasive or intentionally abstruse, prompting the court to intervene on more than one occasion to try to elicit answers to questions which he should have had no difficulty answering as president,” the judge added.

“His evidence with respect to several important details is confusing and contradictory. Firstly, he conceded in cross-examination that it was not the Board (but only certain members) that initially considered the plaintiff’s claim. According to him, the matter was later brought to the Board, which referred it to counsel to be litigated.

“However, when his attention was drawn to the union’s letter of 24 January 2019, written on behalf of the Executive Board, he conceded that the union never formally denied the claim. In the same breath, however, he maintains that the Board did not recognise, nor was it prepared to pay, the plaintiff’s claim.”

However, Justice Klein ruled that the BPSU and its trustees could rely on the Limitation Act, which bars any contract-related litigation more than six after the events which are subject to the complaint take place. Given that Mr Pinder launched his claim on May 10, 2019, he could only claim damages for events after May 10, 2013.

“Unfortunate though it might be, this has the effect of abrogating a large part of the plaintiff’s claim,” Justice Klein said. “I am not satisfied that the plaintiff has made out his claim that the defendants agreed to pay him $71,000 for outstanding vacation leave.

“I do find, however, that the plaintiff is entitled to be paid the sums for accrued vacation entitlement for the period after May 10, 2013, to the end of his contract in 2017, subject to any deductions for leave taken or cashed-in during that period. I will also order that the statutory interest of 6.25 percent be paid on the amount found due from the date of judgment until payment.”

Mr Klein said it was impossible to determine the true amount due to Mr Pinder, as there was evidence he had taken or cashed-in some of his vacation leave. He urged all parties to co-operate on an accounting exercise to work out the sum due to the former BPSU president without going through another court battle.