The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Bahamas Power & Light (BPL) executive director, who alleged he was terminated because of his “perceived political affiliation” with the FNM and Desmond Bannister, has won a near-$600,000 payout.

Patrick Rollins yesterday told Tribune Business that “justice prevailed” after Chief Justice Sir Ian Winder, in a September 30 verdict from the Supreme Court, awarded him 100 percent of his “breach of contract” claim after finding the state-owned energy monopoly violated his fixed-term employment conditions.

The former executive director, who earned an annual $180,000 salary prior to his January 21, 2022, dismissal alleged in his witness statement that he was warned by then-BPL chairman, Pedro Rolle, in December 2021 that unidentified members of the Davis Cabinet were pushing for both himself and former chief executive, Whitney Heastie, to be removed.

Both men had been appointed to their posts by the former Minnis administration, and Mr Rollins had asserted: “Chairman Rolle informed me that ‘certain people in Cabinet were asking for your head and CEO Heastie’s head because, you know, you are Desmond’s boy’.” He added that Mr Rolle asked him what sort of compensation he was willing to accept as BPL would not pay the balance of his three-year contract.

However, Sir Ian rejected Mr Rollins’ claim that his dismissal, and the reasons for it, were “unfair, unreasonable, unlawfully discriminatory and unconstitutional” by finding “there is no compelling evidence” that the Davis administration’s BPL Board permitted the Government to implement a “discriminatory practice” of removing senior management executives perceived to be FNM supporters.

Mr Rollins, reacting to the verdict, told this newspaper: “Justice prevailed. The Board abrogated its fiduciary responsibilities to the shareholders [the Government and people of The Bahamas], and chose to pursue a case against me, trying to coerce me into accepting a far lower payment for separating from the company.

“I took them to court and justice prevailed. The Board was fully aware of what they were doing when they did it.” The BPL Board decided to terminate Mr Rollins at its first meeting despite one director, Cheryl Simms, an executive with the Kikivarakis & Co accounting firm, voicing misgivings about the consequences of doing so given the absence of a termination ‘without cause’ clause in his contract.

Mr Rollins was appointed as BPL’s deputy chairman on July 1, 2017, following the Minnis administration’s election victory that year. He resigned from the Board on August 14, 2018, but - prior to that - had signed a three-year employment contract on July 20 of that year to become BPL’s executive director with responsibility for overseeing “large technical projects”.

Sir Ian, in his verdict, noted that “in reality” BPL was ‘informed’ of Mr Rollins’ appointment by Mr Bannister, then-deputy prime minister and minister of works with responsibility for BPL, at a July 4, 2018, Board meeting. The job description for the post was sent to BPL on July 13, 2018, by the acting permanent secretary at the Ministry of Works.

Besides the $180,000 base salary, the three-year contract gave Mr Rollins an annual gratuity equal to 15 percent of salary; a BPL vehicle; and medical insurance. He was required to give three months’ notice if he intended to resign, but the contract only permitted BPL’s Board to terminate him “for cause” and provide the reasons for doing so to the minister.

Mr Rollins’ contract was renewed for a second three-year term beginning on July 1, 2021, which was some two-and-a-half months before the September general election. “Bannister had requested that Rollins’ contract be renewed for three years,” Sir Ian wrote in his verdict.

The contract’s terms and conditions were the same as the first version, although the Chief Justice wrote: “It had been proposed by Bannister that, on the renewal of Rollins’ contract, his annual remuneration ought to be increased from $180,000 to $189,000 and that he should receive annual increments of 4 percent per annum over the life of the contract, but these increases were rejected by BPL’s Board.”

The Davis administration’s election to office resulted in the appointment of a new BPL Board chaired by Mr Rolle, a realtor and the Exuma Chamber of Commerce’s president. Mr Rollins testified that he only became aware his job was in danger when he went to see Mr Rolle in December 2021 over the renewal of Wartsila’s expiring contract to operate/maintain BPL’s Station A generation plant at Clifton Pier.

“During the course of that conversation, chairman Rolle informed me that ‘certain people in Cabinet were asking for your head and CEO Heastie’s head because, you know, you are Desmond’s boy’,” he alleged.

“Mr Rolle went on to say to me: ‘I need you to let me know what you are willing to accept because if it goes to court it will take a long time to resolve. Think about it and get back to me because we are not prepared to pay the balance of your contract out’. I was taken aback by this last comment, and saddened, given the effort and industry that I had put into BPL these past several years.”

Mr Rollins described Wartsila’s contract, which was not renewed, as “essential to BPL at the time because Wartsila were the only ones who could operate Station A, and Station A provided 130 mega watts (MW) of power, which is on some days three-quarters of the power needed to run New Providence’.

Mr Rolle, though, vehemently denied saying what was asserted by Mr Rollins. Sir Ian wrote on his verdict: “Rollins said under cross-examination that, after the alleged meeting with chairman Rolle he went back to his office, just said ‘wow’ and continued working.

“Rollins said he continued to work at BPL in good faith, advancing the projects that he was overseeing, in the knowledge that the new Board of BPL was, at some unknown time, going to terminate his contract prematurely, refuse to pay out the balance and protract any legal challenge based on ‘some obscure political vendetta’.

“Rollins said that this state of affairs was ‘intolerable’ for him and that he ‘vacillated between depression and anxiety’. Rollins also said that chairman Rolle’s threat that, unless he agreed to accept less than the balance of his contract, he would have to wait a long time to have his dispute resolved through the courts ‘resonated in his mind’.”

BPL’s new Board, at its first meeting on Thursday, January 20, 2022, decided to terminate Mr Rollins’ contract with effect from the following day by providing him with three months’ pay in lieu of notice. He was duly summoned to a meeting with Daniel Ferguson, BPL’s deputy chairman, who presented him with a $67,077 cheque and termination letter that he refused to accept or sign.

Mr Rollins duly launched a Supreme Court claim for breach of contract, seeking payment of the remaining $435,000 salary due to him on the balance of his second three-year deal plus $81,000 to cover the three annual gratuities; vehicle allowance worth $17,400; some $20,277 in accrued vacation; and $46,350 to cover replacement medical insurance.

He also claimed for unfair and unconstitutional dismissal on the basis of Mr Rolle’s purported comments that the Cabinet wanted to “terminate him because of his perceived affiliation to Desmond Bannister, a member of the former FNM Cabinet”.

Mr Rollins, in his claim, alleged: “The Board of BPL allowed the Government to dictate the implementation of a discriminatory practice of removing key management employees who were affiliated with the FNM... The Board of BPL discriminated against Mr Rollins solely on the basis of his perceived political affiliation and/or opinion by dismissing him..

“Mr Rollins was subjected to humiliation and degradation merely because of his perceived political affiliation with the FNM and without being afforded an opportunity to be heard on the continuity of his contract.”

BPL, in its defence, denied that Mr Rollins was employed on a fixed-term contract and instead argued that he was a permanent employee who could be dismissed with three months’ notice under the Employment Act’s terms.

The state-owned utility also rejected the assertion that he was dismissed for political reasons, and denied that it had subjected Mr Rollins to discriminatory or humiliating treatment, instead asserting that the dismissal was driven by the need to cut costs and eliminate the duplication of roles between himself and Mr Heastie.

And, arguing that Mr Rollins had been paid “above industry compensation”, BPL alleged that his hiring “was part of the controversy that led to the termination or resignation of a previous Board which was then chaired by Darnell Osborne, and it was therefore accepted that his appointment may have been made in questionable circumstances”.

Mr Rolle, during his trial testimony, said he “struggled to understand why BPL in essence required two chief executives at an annual cost of $500,000” as part of the rationale for Mr Rollins’ termination. And he “strenuously denied” telling the former executive director “that certain members of the Cabinet were calling for his and CEO Heastie’s termination”.

After analysing all the evidence, Sir Ian found both Mr Rollins’ contracts “were genuine fixed-term contracts”. As a result, he rejected BPL’s argument that it was “the spirit and intent” of the two sides that Mr Rollins’ employment could be terminated by three months’ notice.

And, in the absence of any evidence to show he would have been “terminated for cause”, the Chief Justice found Mr Rollins was entitled to all the compensation he was seeking and duly awarded him a total $592,952 plus interest at 2 percent to run from his January 21, 2022, termination.

Interest amounts to $11,859 per annum, and Sir Ian said he was awarding that sum because BPL had knowingly failed to provide full compensation despite taking legal advice and the warning from Ms Simms. And, in contrast, it had paid the full contractual sum due to the previous BPL executive director, Deepak Bhatnagar, when he was terminated.

However, Sir Ian rejected the unfair dismissal claim, as he “placed greater weight on the inherent improbability that an experienced businessman would tell a senior executive what it is alleged was said” in the case of Mr Rolle’s comments to Mr Rollins. 

Also finding an absence of “wider evidential support” to show the termination was politically motivated, the Chief Justice concluded: “There is no compelling evidence that the Board of BPL allowed the Government to dictate the implementation of a discriminatory practice of removing key management employees who were affiliated with the FNM, which is a very serious allegation.

“The evidence adduced by Rollins does not bear out that there was a ‘witch hunt’ at BPL for FNM-appointed executive management (whomever that set of people may consist of). There is, in the same way, no compelling evidence that the Board failed to act independently in the exercise of their fiduciary duties to BPL and failed to consider whether Rollins’ termination was in the best interests of BPL.

“There is also no compelling evidence that Rollins was subjected to humiliation or degradation because of his perceived political affiliation with the FNM. Rollins’ evidence of humiliation and degradation was gravely undermined during cross-examination.”

However, Sir Ian hinted that he would have found Mr Rollins’ dismissal to be unfair if his claim had been broadened beyond political factors. “Rollins was a senior employee who had been in BPL’s service for several years with no record of misconduct, relatively few years of his working life left to anticipate,” he added.

“Yet no advance notice of BPL’s intention to make him redundant was given to him, BPL knowingly failed to pay out Rollins’ contract - treating him differently from Bhatnagar - where no justification was provided for doing so, and failed to consult the minister responsible for labour on Rollins’ redundancy as required by the Employment Act.”

Ferron Bethell KC, who was a fellow BPL Board member with Mr Rollins under the Minnis administration, represented the former executive director. Raynard Rigby KC led BPL’s defence.