By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Gaming Board is arguing that a Supreme Court judgment makes a key part of the Employment Act irrelevant as it appeals against the reinstatement of 24 dismissed line workers and managerial staff.

The regulator, in a May 7, 2020, filing of its “notice of appeal” against Justice Indra Charles’ ruling, alleges that her “very broad construction of” the Employment Act’s redundancy provisions means the same law’s section 29 - which deals with termination with notice - serves no purpose as such dismissals can also be deemed “termination for redundancy”.

To pursue its appeal, the Gaming Board has hired John Wilson QC, senior partner at McKinney, Bancroft & Hughes, rather than use the Attorney General’s Office that represented it before the Supreme Court.

He is challenging the very foundation of Justice Charles’ ruling, which is that the Gaming Board made all 24 staff redundant and failed to follow the proper procedures set out in the Employment Act for accomplishing this.

Mr Wilson, on the Gaming Board’s behalf, is arguing that the Supreme Court was wrong to accept the arguments of the former employees’ attorney, Wayne Munroe QC, pictured, “that redundancy occurs where the employer terminates employees due to a surplus of labour or introduces technological advances that allow for labour-saving machinery to be implemented”.

Arguing that the judge used the wrong legal precedent in applying “the test of surplus labour” to Bahamian redundancy law, the Gaming Board’s appeal also alleges that Justice Charles was wrong to combine the managerial and labour staff in finding that all lost their jobs “because work of a particular kind, that being administrative work, diminished”.

The regulator is arguing that there was no evidence before the Supreme Court to show that “particular work”, as required by the Employment Act’s redundancy provisions, had reduced. It claims that “administrative work” is too broad a definition to meet the Act’s requirements.

Mr Munroe, confirming that the appeal had been filed, forecast that it would likely be heard within six months. “The argument is the same one that they ran and was rejected before Justice Charles,” he said. “They’re saying the Gaming Board acted under section 29 of the Employment Act, which is termination with notice. Justice Charles said the other sections of the Act apply.”

The well-known QC said evidence produced during the trial by the Gaming Board’s human resources manager, as well as a press release announcing the job losses, clearly showed it was a redundancy exercise undertaken because the regulator was over-staffed and lacked sufficient persons with the skills necessary to oversee an industry increasingly driven by technology.

The Gaming Board’s appeal was filed before the June 30 deadline set by the Supreme Court for the 24 workers to be reinstated to their posts and/or paid damages for wrongful and unfair dismissal.

Justice Charles, in her ruling, slammed the Gaming Board’s failure to follow “clearly set out” employment law procedures when it dismissed the 24 staff as “mind boggling”.

She suggested that the casino and web shop regulator had failed to adhere to modern industrial relations practices requiring employers to be candid and forthright with staff as it never showed how those workers were “chosen to be made redundant”.

She ruled that the Gaming Board had failed to comply with both the Bahamas Public Services Union (BPSU) industrial agreement, which governed the impacted line staff, plus the 2017 reforms to the Employment Act that mandated “consultation must take place” with the affected workers and their representatives when more than 20 are being terminated.

Justice Charles also found that the Gaming Board had pressed ahead with the redundancies despite its chairman, Kenyatta Gibson, being told of the need to adhere to these procedures by BPSU and worker representatives.