The Tribune

BY NEIL HARTNELL

TRIBUNE Business Editor

nhartnell@tribunemedia.net

A FORMER senior superintendent at the Water & Sewerage Corporation yesterday lost his bid for near-$1m in damages for wrongful and unfair dismissal after a “damning” investigation revealed he personally profited from “a major conflict of interest”.

Findings from an internal audit revealed that Trevor Roberts, a 38-year veteran who rose from semi-skilled labourer when he joined in 1982 to senior superintendent for road reinstatement, had a “personal affiliation” with - and was allegedly the “true” owner of - multiple third-party contractors who he ensured received maintenance and other business from the Corporation.

The investigation revealed that the address for many of these contractors was the same as Mr Roberts’ home, and that he had seemingly used his wife’s friend, neighbours and their relatives, and the Corporation’s own janitorial contractor and a security guard to act as nominee owners, or ‘fronts’, for these entities in a bid to “disguise” his involvement.

The final report, which was completed on August 26, 2020, found that the Water & Sewerage Corporation had paid a collective $912,315 to four of the contractors linked to Mr Roberts without him declaring his purported ownership interest. Acting justice Raynard Rigby KC branded these “damning findings” and “good reasons to summarily terminate” Mr Roberts, who he found had “placed himself in a position of conflict” due to his “desire for personal enrichment”.

The 92-page judgment, in detailing much of the evidence and internal audit findings, also disclosed that Krystal Ferguson, the lead investigator, felt “under duress” and pressure from the Corporation’s then-executive chairman, Adrian Gibson, the former Long Island MP, to push the probe into Mr Roberts’ activities too quickly. She added that this resulted in a backwards process, where the ex-senior superintendent was interviewed “prematurely” and contrary to normal practice.

Ms Ferguson’s evidence, which acting justice Rigby detailed in his verdict, asserted that a key witness - one of the nominees fronting for a company linked to Mr Roberts - revealed she was personally contacted by Mr Gibson who asked her to visit the Corporation and meet with the then-Board, while allegedly “promising her she wouldn’t go to court or anything”.

The internal auditor hit out at this alleged interference, asserting that “the Corporation’s Board and/or Board members” - in meeting with a key witness - had “compromised the impartiality of the investigation findings and jeopardised the investigation’s integrity” by potentially undermining key evidence. However, these concerns appear not to have factored into acting justice Rigby’s verdict.

Mr Roberts initiated legal action against his former employer in 2023 after he was summarily dismissed over alleged “vendor payment processing irregularities” related to work performed by third-party contractors related to valve box raising, filter management and road reinstatement. He received a final net payout of $20,369, having been on a $75,000 annual salary when terminated.

However, he claimed for unfair dismissal on the basis that the Corporation had failed to provide him with a copy of the internal audit findings and give him “an opportunity to respond” and make his case against them. Mr Roberts, who was also a member of the Water & Sewerage management union, in addition claimed that the state-owned water utility had failed to follow its own disciplinary procedures.

And, following his October 2, 2020, termination, Mr Roberts alleged he was also subjected to a Royal Bahamas Police Force investigation into the allegations that resulted in his dismissal, although this has yet to result in any criminal charges. He claimed a total $972,354 in damages, and detailed the devastating impact the affair has had on himself and his family.

“I am of the view that Water & Sewerage Corporation is wrong to have summarily dismissed me for the findings of internal control and compliance (IC&C), which do not definitively say nor present evidence showing that I had done anything wrong or which was repugnant to Water & Sewerage Corporation’s interests,” Mr Roberts alleged in written evidence.

“In fact, although I have been languishing with the criminal charges hanging over me, no proceedings have been started yet against me although I have been dismissed without any of my retirement benefits having been paid…. For the last five years, Water & Sewerage Corporation has been giving the world-at-large a view that I had done something criminally or so wrong that it justifies then withholding my pension benefits…

“In fact, because of the allegations that Water & Sewerage Corporation has made against me, I have lost my right as a Bahamian to travel to the US as a part of the pre-clearance system that I have enjoyed in The Bahamas all my life. I am restricted from being able to visit my daughter, Payton, who now lives in the US. My son, Trevor Jnr, is having significant challenges not wanting to go to the US for further education because he does not want to have any such restrictions from me.”

Mr Roberts further alleged that, as a result of his termination, he now owes $30,800 to his landlady, Veronica Newbold; has been unable to afford the $253,964 bill for his wife’s surgery; and been forced to let the Family Guardian life insurance coverage for both his children lapse.

However, the Water & Sewerage Corporation countered that Mr Roberts was both “lawfully terminated” and given more more than a month to respond to the internal audit findings. It alleged he and his then-attorney, Sharmie Farrington-Austin, were presented with the report in late 2020 and given until a September 29, 2020, meeting to reply.

“The defendant asserts that it followed procedure by conducting an investigation into suspected irregularities at the company, which unearthed findings of a major conflict of interest in the carrying out of the claimant’s duties,” the Corporation asserted in its defence.

Krystal Ferguson, the Corporation’s internal auditor and lead investigator, said the probe into Mr Roberts began on June 18, 2020, after she was told he was involved in issuing valve box raising contracts even though this was not among his unit’s responsibilities as it was under distribution maintenance - not road reinstatement.

Concerns had been raised over the absence of locations and times on invoices submitted by third-party contractors seeking to be paid for this work. “I received information… that it was alleged that senior superintendent Roberts changed filters for a customer during a time that he was not assigned to the section, distribution maintenance, responsible for such works,” Ms Ferguson alleged.

“I received information that there were speculations that senior superintendent Roberts were the ‘true’ owner of several companies providing valve box raising and filter changing services to the Corporation.” However, when interviewed on June 24, 2020, Mr Roberts denied having any “personal, financial or otherwise interest” in any of the companies providing such services.

Yet the investigation uncovered “irregularities” associated with several contractors - Kemp's General Maintenance, M&N General Maintenance, PICCS General Maintenance, RGM Services, Shalom Development Company and S Forbes Contract Services. And RGM Services, as well as Newann Development Company, an entity that received $702,619 from the Corporation between 2010 and 2020, shared registered addresses that were the same as Mr Roberts’ home.

Mr Roberts had also signed for, and collected, two cheque payments made by the Corporation to Shalom Development Company, and altered two invoices submitted by PICCS General Maintenance and S Forbes Contract Services by changing the date and number, respectively.

As a result, Krystal Ferguson contacted Kimley Ferguson, the registered owner of Shalom Development Company, and Mary Ching-Neely, who held the same post with M&N General Maintenance. The latter was a security guard stationed at the Corporation’s New Providence offices, and who also owned Mary's Janitorial Services, which provided janitorial services by changimg the utility’s bins.

Kimley Ferguson, under interview, confirmed her’s and Shalom’s links to Mr Roberts, and added that she received a $500 cut of every payment made by the Corporation to the company while the senior superintendent received the rest.

“Kimley Ferguson stated the following,” Krystal Ferguson alleged. “She has a business affiliation with senior superintendent Roberts. She stated that senior superintendent Roberts registered Shalom Development Company in her name, and also that she provided him with her government-issued identifications.

“As the registered owner, she stated that she had no knowledge of what general maintenance entails. She was unable to confirm that any of the work that she invoiced to the Corporation was actually done, nor did she at any point visit any of the locations where her company did works for the Corporation. She had no knowledge of how works were dispatched to her employees, neither did she communicate with them, nor did she know their names.

“She prepared invoices and e-mailed them to the Corporation, based on information senior superintendent Roberts provided to her. Kimley Ferguson stated that she received the Corporation cheques written to Shalom Development Company, and gave all of the funds to senior superintendent Roberts except for $500 that she kept for herself.”

During the Supreme Court trial, Mr Roberts indicated that he had indeed changed the two invoices and that they bore his initials, but denied “that the altering of the invoices was conduct repugnant to the interests of the Corporation”.

He also revealed that another of the suspect contractors, RGM Services, was owned by one of his neighbours, Vanessa Rolle, while Newann Development’s principal, Marvin Scavella, was her son-in-law. Mr Roberts also alleged it had the same postal address as his home because it was shared by the three units in the apartment complex where he lives.

And, under cross-examination, he admitted to knowing Kimley Ferguson, Shalom’s nominee, because she previously worked with his wife at Commonwealth Bank. Mr Roberts was also unable to explain why Kimley Ferguson deposited $5,543 to a Commonwealth Bank account in the name of Invictus Trading, which he confirmed was his, on July 12, 2019, although he denied paying her $500 per cheque. Kimley Ferguson said she may have received up to $4,000 from this arrangement.

All this led Krystal Ferguson to conclude: “There was insufficient distance between the vendors carrying out work for the Corporation and senior superintendent Roberts. There is an apparent conflict of interest, since he was the manager responsible for managing and approving the works carried out by those vendors and also had personal relationships with the vendors.

“The best interest of the Corporation was jeopardised. Since senior superintendent Roberts is a Water & Sewerage Corporation manager, and he had responsibility for valve box raising and filter changing during the subject period, he was tasked with managing the contracts and ensuring that the said works were actually carried out by the contractors.

“In that position, he needed to obtain sufficient distance and objectivity such that when he was called upon to perform the aforementioned tasks, the best interest of the Corporation would have been unquestionably preserved. An apparent conflict of interest exists. The fact that senior superintendent Roberts had personal affiliations with the contractors that he managed and approved works for, on behalf of Water & Sewerage Corporation, created a conflict of interest.”

Krystal Ferguson, in her final report on the investigation, asserted that there were no documents - and “a lack of audit trail” - to support 15 invoices submitted for combined payments worth $54,000. “The filter changing programme was ceased since there is no process in place for Water & Sewerage Corporation to actually verify that the filters were in fact being changed by the contracted vendors,” she wrote.

“The large volume usage of contractors to change filters was ceased by the division head. However, there was a limited use of contractors to assist with critical works. There is an excessive amount of filter Cartridges; 11,521 at New Providence stores, and 2,400 stored at distribution maintenance storage room and construction storage room.

“There are inadequate internal controls for filter cartridges storage. Trevor Roberts carried filters in his Water & Sewerage Corporation issued vehicle and continued to change filters for Water & Sewerage Corporation’s customers after being transferred from distribution maintenance.”

Acting justice Rigby, in his verdict, said he found Mr Roberts to be “a less than frank and honest witness”. He ruled that the ex-senior superintendent was fully aware of the investigation and that he was the subject, and was satisfied that Mr Roberts was given both a copy of the report and a month to respond to its findings prior to his termination.

“I find that the evidence against the claimant was compelling in the circumstances to lead to his summary dismissal,” the judge ruled. “The employer cannot be faulted if the employee decides and elects to not respond to the allegations made after being told of the facts and circumstances that led to the allegation…. By failing to do so the employer had no other recourse but to act on the findings without regard to the views of the employee…

“The audit report also made damning findings against the claimant…. I am satisfied on the evidence before me that the claimant committed a major misconduct amounting to dishonesty. Arranging and conspiring with Kimley Ferguson to start the business Shalom Development Company, and facilitating various contracts to be given to the company, and taking the majority of the proceeds for the services, save for $500 payable to Ms Ferguson, was conduct that is repugnant to the interests of the Corporation.

“This conduct can constitute evidence of dishonesty and fraud. These actions are squarely within the category of misconduct that can lead to summary dismissal under section 31 of the Employment Act…. He placed himself in a position of conflict with his duty to the Corporation as an employee and his desire for personal enrichment. Such conduct, too, raises to the level of theft and justified the claimant's summary dismissal.”

Krystal Ferguson’s evidence, meanwhile, alleged that she came under pressure from Mr Gibson, in his capacity as the Water & Sewerage Corporation’s executive chairman, within one day of launching the probe into Mr Roberts.

“At 3.35pm, on June 19, 2020, I received an e-mail from executive chairman Gibson directing me to immediately interview senior superintendent Roberts. The directions stated: ‘I hope that that interview is ongoing or was already done. Delays in the investigation will not be acceptable. Please ensure that no stone is left unturned’,” she asserted.

“I interviewed senior superintendent Roberts prematurely and under duress as a result of consistent communicated directives from the executive chairman’s office to have senior superintendent Roberts interviewed immediately.” This, Krystal Ferguson, argued was contrary to best practice as the subject of investigations are normally interviewed when the probe is completed and all evidence gathered - not at the start.

She then became aware that Mr Gibson had approached, and spoken to, Kimley Ferguson, who was the key witness against Mr Roberts. “At the time of the interview, I asked her: ‘Why did you decide now to inform Water and Sewerage Corporation's Board of the business arrangements with Trevor Roberts and yourself?, and she responded: ‘Adrian Gibson called me the same day after you contacted me, and asked me to come in to Water and Sewerage the next day to meet with the Board. Mr Gibson told me to come’,” Krystal Ferguson alleged of the witness’ response.

“Kimley Ferguson also told me that executive chairman Gibson promised her she wouldn't go to court or anything…. The Corporation's Board and/or Board members interviewed/met with Kimley Ferguson, which compromised the impartiality of the investigation findings and jeopardised the investigation's integrity.

“The Board's and/or Board members' interference in contacting and meeting/interviewing Kimley Ferguson prior to her meeting with internal control and compliance during the ongoing investigation undermines everything she would have said to me during the interview. It led me to take a bias approach because I don't know what she told them and/or what they told her.”