The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Bahamas Electricity Corporation (BEC) union leader has failed to increase the damages and compensation payout for his wrongful dismissal over 20 years ago to almost $2.6m.

Timothy Moore, who was president of the Bahamas Electrical Managerial Union (BEMU) and BEC’s training officer when he was terminated in July 2003, had been “dissatisfied” with the total $194,000 plus interest that was awarded to him last year by now-retired Supreme Court justice, Diane Stewart.

As a result, he approached the Court of Appeal for a massive increase in compensation while acting as his own legal representative. Besides seeking $1.33m for wrongful dismissal and breach of contract, he also sought to be paid $1.254m in pension arrears and “and a continuing monthly pension benefit in accordance with the Bahamas Electricity Corporation employees’ pension plan”.

Mr Moore’s termination caused significant upheaval at BEC when it occurred more than two decades ago, with the Bahamas Electrical Workers Union (BEWU) then threatening strike action unless he was reinstated. he was terminated for alleged “uncooperative and disruptive behaviour”, but Mr Moore denied the charges, stating that his dismissal was part of BEC’s effort to silence employees through “union busting”.

The situation prompted the intervention of then labour minister, Vincent Peet, with Mr Moore, a 24-year BEC veteran at the time, asserting that his performance and work ethics were never questioned, and he had been rewarded with increments and annual performance bonuses.

Justice Stewart, in ruling that Mr Moore was wrongfully dismissed and entitled to damages, also found that he was not hired on a fixed-term contract and that he was “entitled to gratuity benefit and not a pension under the pension plan”. She awarded $72,262 for wrongful dismissal, inclusive of the $33,550 already paid by BEC, plus a $61,732 gratuity and pre-judgment interest of $60,266. Post-judgment interest was also running.

The Court of Appeal, though, in a unanimous verdict delivered yesterday declined to increase or vary the damages award. “The appellant commenced his employment with the respondent as a training officer on June 1, 1980. He had been employed for more than 23 years before he was dismissed from his employment without cause,” its judgment said.

“By letter dated July 18, 2003, the appellant was issued a first termination letter, which informed him of his termination with the respondent [BEC] with immediate effect. The appellant then filed a trade dispute pursuant to the terms of the industrial agreement, alleging that he was not properly informed of the accusations, was not given a verbal or written warning, and was not given an opportunity to respond to the accusations.

“The respondent then withdrew the first termination letter. The appellant’s employment was again terminated by the respondent by letter dated March 5, 2004. Justice Evans, as he then was, determined that the effective termination date was July 18, 2003.”

Mr Moore argued that the Supreme Court failed to account for the fact that an arbitration tribunal had ruled in his favour over the dispute with BEC. “The appellant submits that the learned judge ought to have found that he did not only raise a trade dispute but that he followed the grievance procedure set out in the industrial agreement,” the Court of Appeal said. 

“Further, an Independent Arbitration Tribunal, agreed by the parties and constituted in accordance with the provisions of the Industrial Relations Act, heard and determined the trade dispute in his favour on July 27, 2003. According to the appellant, the Arbitration Tribunal found that: ‘There were no justifying circumstances warranting the termination of the plaintiff and that he should be returned to his position with the defendant’.

“The appellant submits that the learned judge ought to have found that he was dealt an injustice in accordance with Article 13.7 of the industrial agreement and should have been reinstated and compensated for working days lost.” Mr Moore also argued that his termination was unjust and wrongful, but the Court of Appeal did not agree.

“The appellant’s submission that the learned judge ought to have found that he was dealt an injustice in accordance with Article 13.7 of the industrial agreement, in the light of the Arbitration Tribunal’s decision, is unfounded since that finding does not bind the learned judge, whose task was to assess damages in a case of wrongful dismissal,” it determined.

“On the facts before her, the learned judge did not err in law or in fact when she determined that the appellant is to be treated as if he were properly terminated. This ground is unsustainable and must fail.... Under the pension plan, the learned judge was correct to find that the appellant did not qualify for a pension benefit due to the fact that he lacked the required years of service (30 years) and had not reached the requisite age upon his termination (60 years).”

The Court of Appeal also ruled that Justice Stewart was correct to find Mr Moore “caused numerous delays in this matter”, and added: “The learned judge opined that the appellant was responsible for the protracted delay of this matter proceeding in a timely fashion and, as such, she was not satisfied that he is entitled to compound interest.

“She recounted the numerous delays due to the numerous interlocutory applications filed by the appellant and his changing of counsel on several occasions when the assessment was in fact scheduled.

“In the present case, the appellant cannot positively demonstrate that his contract of employment and/or the industrial agreement confer on him any greater rights or better benefits as contemplated by section four of the Act.  In the circumstances, the learned judge was correct to apply section 29 of the [Employment] Act to determine the compensation package to which the appellant is entitled.”