The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A TRADE union leader yesterday defended the near-$1.9m total damages awarded to five former Gaming Board staff for wrongful and unfair dismissal as “not out of whack”.

Obie Ferguson KC, the Trades Union Congress (TUC) president who served as their legal representative in the dispute with the casino and web shop regulator, told Tribune Business the award by the Supreme Court was “very reasonable” despite representing another liability that either the Gaming Board’s licensees or Bahamian taxpayers must pay.

The five - Kayla Ward, Georgette Johnson, Latoya Knowles, Dwaynel Archer and Hope Miller - were among 24 former Gaming Board employees who then-senior justice Indra Charles ruled were wrongfully and unfairly dismissed between October 2017 and February 2018 following the Minnis administration’s election to office.

Edmund Turner, the Supreme Court’s deputy registrar, in a June 6, 2024, verdict found the five were entitled to a combined $1.895m as compensation for the loss and damages they had suffered, with that figure also including interest on the sums awarded.

Breaking this down, he awarded Ms Ward some $442,363 in damages plus just over $150,000 in interest for a total payout of $593,784. The interest was calculated at 3 percent for the period between Ms Ward’s redundancy, which occurred on November 30, 2017, to the February 17, 2020, date of Justice Charles’ ruling. The rate was raised to 6.25 percent from the date of the judge’s ruling to Mr Turner’s assessment.

Ms Johnson secured the highest total award of $611,944, which represented $452,620 in assessed damages and over $159,000 in combined interest on this sum. Ms Knowles and Ms Miller were awarded a total of $261,055 and $242,912, respectively, while Mr Archer gained $185,036.

Confirming the figures are correct, Mr Ferguson yesterday told Tribune Business that while his clients have yet to receive these payments the Government/Gaming Board have sufficiently deep pockets to cover the awarded damages and interest.

“We are just in the vineyard of doing what we have to do in the interests of the workers,” he said. “I think the award was very appropriate, and I am very pleased that the workers are the beneficiaries of it. The Government is doing extremely well financially, the workers are the ones suffering, so $1.9m is not considered out of whack.

“They went through quite a bit, and the law is the law. The Government has a deep bench and means of raising funds. The Supreme Court made a ruling, and the Government didn’t appeal. If they didn’t appeal it, on what basis could they go any further with that” and challenge the damages award.

“In my view I think it was very reasonable,” Mr Ferguson added of the deputy registrar’s assessment. “I’m very pleased that the workers are beginning to be noted for their hard work and following the law. The question is not ‘so much’ but whether it was legal.

“The award is really predicated on what the workers are entitled to bearing in mind you have the right to bring an action for wrongful and unfair dismissal. When you consider them, and put all the pecuniary benefits together, one can understand why unions, employers and workers should find ways to meet, be reasonable and reach understandings acceptable to both sides, not to take intransigent and unreasonable positions and be faced with the hard face of the law.”

Mr Ferguson said this was the main lesson to take away from both Justice Charles’ original verdict and subsequent damages assessment. “What we should do is meet and discuss, look at the interests of both parties, employer and labour, and come to an agreement that is reasonable, that is sensible and that is cost-effective,” he added.

Justice Charles, in her initial February 2020 verdict, slammed the Gaming Board’s failure to follow “clearly set out” employment law procedures when it dismissed the workers as “mind boggling”.

She suggested that the casino and web shop regulator had failed to adhere to modern industrial relations practices requiring employers to be candid and forthright with staff as it never showed how those workers were “chosen to be made redundant”.

And Justice Charles also ruled that the Gaming Board had failed to comply with both the Bahamas Public Services Union (BPSU) industrial agreement, which governed the impacted line staff, plus the 2017 reforms to the Employment Act that mandated “consultation must take place” with the affected workers and their representatives when more than 20 are being terminated.

The Gaming Board had pressed ahead with the redundancies despite its then-chairman, Kenyatta Gibson, being told of the need to adhere to these procedures by BPSU and worker representatives. However, Justice Charles later ruled in January that it was not “practical” to reinstate the terminated employees, including Mr Ferguson’s clients, to their former jobs - a verdict that ultimately led to the damages claim.

Justice Turner, in his damages assessment, said the five were seeking compensation under common law - rather than statute law - for wrongful dismissal. While the Gaming Board had paid them their statutory entitlement, as set out in the Employment Act’s section 29, the former employees were demanding “notice pay and all pecuniary benefits” under the precedents established by common law.

And, based on Justice Charles’ separate finding of unfair dismissal, he added that each was entitled “to basic and compensatory damages up to a maximum of two years”. Mr Turner added: “In the final analysis, it can be seen that the predominant evidence of all the claimants is that they were called to the Gaming Board office and were each given letters of termination.

“It is because of a lack of reasonable notice that Justice Charles found a case for wrongful dismissal, and hence the claimants are entitled to notice pay and all pecuniary benefits associated with the same. As a result, the court is of the view that the claimants are entitled to the common law amount for wrongful dismissal, factoring in the notice period.”

Ms Ward, who began her public service career with the Ministry of Tourism in 1990, said she was transferred to the Prime Minister’s Office in August 2012 before joining the Gaming Board in November 2014. “She also gave evidence to the fact that she was made permanent and pensionable in June 2015,” Mr Turner wrote.

“Ms Ward also gave evidence that, at the time, she had 25 years of diverse technology experience prior to joining the Gaming Board. Her employment by the Gaming Board was as an assistant secretary in information technology and facilities management division, which included information technology, facilities management, statistics, security administration and custodial services.”

Ms Ward initially sought $531,413 in total damages, while Ms Knowles had demanded $235,407. The latter had joined the Gaming Board on March 1, 1999, as an assistant manager. “She gave evidence that she was called to the office on February 16, 2016, where she was summarily terminated. At the time she was 43 years of age and had served 19 years with the Gaming Board,” Mr Turner added.

As for Mr Archer, who was 37 and an assistant manager in the Gaming Board’s facilities department, he was dismissed in December 2017 after working at the regulator for just over six years. A university graduate with a degree in electronic engineering, he was certified in the computer system used by the Gaming Board, and no aspect of his financial claim for $183,163 was disputed by government attorneys.

Nor did they challenge Ms Miller, who was an administrative assistant supervisor when terminated at 50 years-old after 17 years’ service, on her $175,749 claim. Ms Johnson, the longest-serving member of the five, had spent 35 years with the Gaming Board prior to her termination, and her financial claim was also not contested by the Government.

“She gave evidence that, on return from three weeks’ vacation, she was called to the office and was summarily terminated. At the time she was 56 years of age and had served 32 years with the Gaming Board,” Mr Turner said.

The Gaming Board, in its defence, argued that the wrongful dismissal claim had been satisfied and should not have been included in the damages assessment. And it also alleged “that the claimants accepted their severance packages and should now be constrained from claiming wrongful dismissal damages consisting of salary for the period of reasonable notice or any other allowances”.

The regulator also asserted that Ms Johnson had already been paid $110,511, while Ms Ward had received $33,568 and Ms Knowles some $69,061, as part of their termination entitlements. Mr Archer and Ms Miller had received $36,484 and $47,774, respectively, it claimed.

However, Mr Turner noted that Ms Johnson and Ms Knowles had already deducted some $95,875, and $46,042, respectively, from their claims, while Ms Miller, Ms Ward and Mr Archer had lowered theirs by $38,350, $22,208 and $21,545.

The Supreme Court deputy registrar then dismissed the Gaming Board’s argument that wrongful dismissal damages should not be included in the damages assessment because it had failed to appeal Justice Charles’ February 2020 verdict. As a result, it had no choice to abide by her decision.

And he also dismissed its efforts to reduce the unfair dismissal damages payout, ruling: “In the assessment at hand, the benefits owing to the five claimants in their witness statements were not refuted or challenged by the defendant.

“From the facts at hand it can be seen that the benefits and rights conferred upon the claimants from their contracts of employment clearly ‘trump’ those granted via statute and as a result oust the same.” The Gaming Board also argued that the five had not “taken reasonable steps to mitigate their loss” by seeking alternative employment, but Mr Turner said he took this into account in determining the damages.