The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Bahamas Power & Light (BPL) managerial union chief has failed to persuade the highest court in the country’s judicial system to restore his $621,000 “handsome windfall” in termination compensation.

The London-based Privy Council, in upholding the Court of Appeal’s decision, agreed that the sum initially awarded to Ervin Dean by the Supreme Court “was so far outside the generous ambit of available awards that could properly have been made” that it had to be overturned.

And the five Law Lords also unanimously agreed that the interpretation of the Bahamas Electrical Managerial Union’s (BEMU) industrial agreement, which governed his employment terms, by Mr Dean and his attorneys “would be a recipe for chaos and confusion”. They found the term, stating BPL “shall not...terminate an employee unjustly”, did not provide a contractual right to legal protection over unfair dismissal.

Mr Dean, who was senior manager of credit and collections at the state-owned electricity monopoly when dismissed on September 22, 2017, had at the time just celebrated 30 years’ service with BPL and was 54 years-old. The Privy Council, in its July 4, 2024, verdict found he “had an unblemished work record with no history of disciplinary proceedings against him and was a loyal employee”.

However, he was dismissed by BPL “without cause” or any reason being given. Mr Dean received the legal minimum compensation as required by the Employment Act’s section 29, and was also told that he would be paid his accrued earnings, vacation entitlement and Christmas bonus. A further $20,792 was offered as a sum “in settlement of his claim”.

Mr Dean, who rejected the latter sum but accepted everything else offered, initiated legal action against BPL for breach of contract but elected not to pursue a claim for unfair dismissal under the Employment Act. He alleged that, in paying him the minimum required by law, BPL ignored factors such as his length of service, record, age and position that would have shown he was entitled to greater compensation.

The former union head also claimed he was terminated “unjustly” in violation of Article 14 (2) of the BEMU’s then-industrial agreement, registered under the Industrial Relations Act, which stipulated: “The Corporation shall not, however, terminate an employee unjustly.”

Mr Dean alleged he was owed his monthly salary of $7,508 for a further 74 months, or more than six years, totalling $555,617. He also claimed a $1,877 annual Christmas bonus for a further six years, totalling a combined $11,262, as part of a total compensation demand of $813,649.

Former Supreme Court justice Ruth Bowe-Darville found that BPL had breached Mr Dean’s employment contract by paying him the legal minimum rather than what he was entitled to based on the industrial agreement. The judge accepted Mr Dean’s bid for 74 months’ compensation, which would have taken him to his 60th birthday, as “the unexpired term of employment from October 2017 to November 2023”.

Ex-justice Bowe-Darville 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 she 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. This was cut to 18 months’ compensation or $174,806.

And, by deducting the 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, as well as the $20,792 “ex-gratia” payment, the Court of Appeal ruled that just a further $45,425 was due to Mr Dean.

Now-Court of Appeal president, Jon Isaacs, wrote in its judgment: “I am satisfied that 74 months is unduly generous to the intended respondent as the period for which he should receive payment. 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.....The judge’s order for payment of 74 months must be set aside as there is no evidence to support such a handsome windfall.”

Before the Privy Council, Mr Dean and his attorneys argued that the Court of Appeal was wrong to find the Supreme Court’s award “unduly generous” and argued that there was no basis for it to intervene. Travette Pyfrom and Mark Rolle, his counsel, also argued that BPL had breached their client’s contractual right not to be terminated “unjustly”.

They argued that a reason for his termination should have been given, and that Mr Dean ought to have been allowed to respond and be heard in his defence. The Privy Council, though, found that Mr Dean was not employed for an “unexpired” fixed term - which it ruled was reason enough to overturn the Supreme Court verdict by itself.

“There was no evidence in this case to show that the appellant would not work again so that compensation until retirement age might have been appropriate. There was no evidence that his health or other factors reduced his chance of obtaining future alternative employment,” the Privy Council said of Mr Dean.

“His age and length of service on their own could not have justified the judge’s approach, and there is nothing to suggest that the judge had any regard to the other factors expressly identified by the industrial agreement....

“In the circumstances, the Board is satisfied that the judge erred in law in her assessment......Her award was so far outside the generous ambit of available awards that could properly have been made as to justify the conclusion that it was an assessment to which no reasonable judge could properly have come. The Court of Appeal was entitled to overturn the award based on a multiplier of 74 months’ notice.”

As for Mr Dean’s claim that he was “unjustly” dismissed, the Privy Council questioned why the industrial agreement used the word “unjust” when the two legal avenues open to Bahamian workers in challenging their dismissal are wrongful and/or unfair dismissal.

It added that the industrial agreement allowed BPL to terminate staff by giving “reasonable notice” and imposed no obligation to provide a reason to affected employees. “The appellant’s [Mr Dean’s] interpretation of the ‘unjustly’ term as imposing an obligation to give reasons in a case where dismissal is without cause cuts across this contractual right,” the Privy Council said.

“Moreover, it would be a profound and radical reversal of the employer’s long standing common law right to dismiss for no reason at all. For these reasons, it cannot be correct. Nor, in the Board’s judgment, can it be interpreted as a contractual right to statutory protection against unfair dismissal. That would be a recipe for chaos and confusion.” As a result, Mr Dean’s appeal was dismissed.