The Tribune

• ‘So justice is done and seen to be done’

• Tribunal allows union to join other parties

• 50 ex-staff: Termination ‘wrongful, unfair’

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A wrongful dismissal claim by 50 middle managers at the former Melia Nassau Beach Resort has been permitted to survive “so that justice may not only be done but be seen to be done”.

Rionda Godet, the Industrial Tribunal’s vice-president, in a December 27, 2023, verdict has allowed the Bahamas Hotel and Managerial Association (BHMA) and its attorney, Obie Ferguson KC, to apply to join the correct defendant(s) to their employment dispute.

Disclosing that she was “not so inclined to dismiss the [union’s] claim just yet”, the Tribunal vice-president gave the BHMA and Mr Ferguson, also the Trades Union Congress (TUC) president, until tomorrow to present the necessary application and inform all impacted parties by January 10, 2024.

Ms Godet’s ruling emerged after the Bahamian attorneys for the original defendant named in the BHMA’s action, Perfect Luck Employer (No.1) Ltd, informed the Industrial Tribunal that the firm was struck-off the Companies Registry and dissolved on June 21, 2021.

As a result, representatives from Harry B Sands, Lobosky & Company - while not acting for Perfect Luck - subsequently argued that it was no longer “a legal entity”, while also asserting that the BHMA had no standing to bring what they termed “a class action suit” as the purported dispute was not with the union and instead involved its members as individual employees.

The battle, a legacy issue stemming from the decision by Baha Mar’s owner, Chow Tai Fook Enterprises (Bahamas), to close the Melia on March 1, 2021, was referred to the Industrial Tribunal on July 23 that same year with the BHMA alleging “wrongful and unfair dismissal” on behalf of its members. It is also claiming that the severance pay they received was incorrect.

Perfect Luck Employer (No.1) Ltd, which was a vehicle created to bring Baha Mar out of bankruptcy and facilitate its sale by the China Export-Import Bank to Chow Tai Fook Enterprises (CTFE), was named as the respondent.

However, Harry B Sands, Lobosky & Company, in an October 12, 2021, note to the Industrial Tribunal, said it had informed Tanya Sherman, deputy director at the Department of Labour, that Perfect Luck “had been dissolved and struck off the Register of Companies” on June 21 that year. As a result, it no longer had the authority to represent Perfect Luck as the company had been dissolved.

Eventually, the two sides appeared before the Industrial Tribunal on September 12, 2023. Ednel Rolle appeared for the BHMA, while Lakeisha Hanna of Harry B Sands, Lobosky & Company was present as a ‘friend of the court’ because she had no instructions to act for Perfect Luck.

Mr Rolle alleged that Mr Ferguson, in his capacity as BHMA president, had been ignored by the Melia and its owner when he asked for the date and details on the members’ termination as a result of the 694-room property’s March 1 closure.

“He asserted that all of the affected employees were members of the BHMA who had not received the proper redundancy payments,” Ms Godet said of Mr Rolle’s arguments. “As regards the dissolution of the respondent company, his recall was that the matter was formally raised before the respondent was struck off.

“Therefore, the matter was still ‘live’ and there was some purported agreement or understanding to this effect between the parties.” Mrs Hanna, in response, said the BHMA lacked standing given that it involved persons made redundant in 2021.

She added that the dispute was really between an employer and individual employees, thus bringing it under the remit of the Employment Act, rather than one involving a union and the Industrial Relations Act. “As such this was a class action suit brought by the union and not the employees themselves,” Ms Godet said of her arguments.

“In effect, Mrs Hanna expressed the technical challenge of the Tribunal hearing a matter that the employees themselves did not bring for personal damages and, in any event, given that the respondent was struck off the register it could not appear for itself or give instructions.

“She maintained that as touching as the substantive matter and the claims made for redundancy pay and fees, all of the employees were, in fact, paid in accordance with the Employment Act and their attorney, Mr Ferguson, received letters to this effect two weeks in advance of the redundancy exercise taking place due to the closure of the hotel, so he would have been fully aware.”

Ms Godet, in her decision, said that even if Perfect Luck was dissolved eight days before the Department of Labour “conciliation” meeting with the BHMA on June 29, 2021, the cause of action arose before this occurred because the “report of a trade dispute” was dated May 27, 2021.

And the BHMA had also alleged Perfect Luck attended the June 29 hearing, although in what capacity was not clear. Ms Godet said this would have represented its acknowledgement of the union’s claim, and she also pointed to the Companies Act’s section 272 which states that a company’s liabilities continue and can be enforced even if it is dissolved.

Given these circumstances, the Industrial Tribunal granted the BHMA’s application to add additional parties as respondents. “That is precisely what we will be doing immediately,” Mr Ferguson told Tribune Business given the January 5, 2024, deadline to file with the Industrial Tribunal. “I think the claim ought to survive because it’s in compliance with the law.

“Where I think the error was made was that Perfect Luck never informed the union, the BHMA, that Perfect Luck was no longer the owner. Perfect Luck went to the Labour Board, conciliated before the Labour Board, but never told the union it did not exist by law.”