Wednesday, September 15, 2021
By NEIL HARTNELL
Tribune Business Editor
A trade union leader yesterday vowed “to oppose with every fibre in my body” the Grand Lucayan’s request that the Court of Appeal clarify whether employers can temporarily lay-off staff without pay.
Obie Ferguson, the Trades Union Congress (TUC) president, told Tribune Business that Lucayan Renewal Holdings’ draft motion to the Court of Appeal “would be very damaging to the entire 200,000-plus workforce in The Bahamas” if granted.
The motion, filed in response to the Bahamas Hotel Managerial Association’s (BHMA) appeal against a Supreme Court judgment won by the Grand Lucayan’s government-owned operator, is asking the Court of Appeal to clarify whether the Employment (Amendment) Act 2017 allows an employer to lay-off an employee temporarily without any pay.
“Properly construed, section 28 of the Employment (Amendment) Act 2017 effected a change to the common law and conferred on an employer the right to lay-off an employee without pay,” it read. However, Tribune Business subsequently obtained confirmation that the motion is only concerned with temporary - and not permanent - lay-offs as happened during the COVID-19 crisis peak last year.
Mr Ferguson, though, slammed the move - especially as it came from a government-owned resort just prior to the general election. “The application is that it gives the employer the right to lay-off without pay,” he added. “They’re asking the court to agree with them that any employer been lay-off an employee without pay.
“If that’s the case there is no social relationship in The Bahamas. They’re saying in effect that, by virtue of the 2017 Act, it codifies the common law position which states that you cannot lay-off without pay.” Mr Ferguson argued that this could only happen in cases where the worker/union agreed to it.
“As far as we’re concerned, section 28 provides for them to lay-off whoever without pay,” he added of the Grand Lucayan. “That would be very damaging to the entire workforce of 200,000-plus workers in The Bahamas. You could be laid off without pay for anything. The Act never intended to codify the common law. That’s why we’re taking it so seriously.
“I’m certainly going to oppose it. I’m going to oppose it with every fibre in my body. It has far-reaching consequences for labour relations and workers’ rights, and what is frightening is that it’s coming from the Government.”
The Court of Appeal action relates to a Supreme Court verdict that rejected wrongful/unfair dismissal claims by 36 current and former Grand Lucayan managers. Justice Petra Hanna-Adderley in a June 3 verdict denied virtually all claims by the BHMA and its members stemming from the Grand Lucayan Board’s decision to terminate most of the workforce in June 2020 in accordance with the terms of the sales agreement with ITM/Royal Caribbean.
She dismissed the case brought by three managers because they had been retained by the Grand Lucayan, and are still working there, while three BHMA executives and trustees had no standing to bring an action because they were never employed by the resort.
And she dismissed virtually all other claims after finding that most managers had signed a “deed of release”, barring them from bringing future legal actions against the Grand Lucayan, in order to receive their termination pay and other benefits. Justice Hanna-Adderley found there was no evidence to support allegations they were “coerced” into signing the releases.
The only BHMA member not to correctly sign a “deed of release” was Kirkland Russell, its vice-president, former Grand Lucayan head chef and now Progressive Liberal Party (PLP) general election candidate for central Grand Bahama.
While finding that Mr Russell was entitled to notice pay, and his wages - minus unemployment benefit payments - for the three-month period between the COVID-19 shutdown in March 2020 and his termination, Justice Hanna-Adderley said he was not released because of redundancy but the “temporary cessation” of the Grand Lucayan’s business due to the global pandemic.
As a result, this meant Mr Russell’s wrongful and unfair dismissal claims, as well as his bid to be reinstated and the BHMA’s claim that the resort breached the Employment Act by failing to consult with it prior to the terminations, all fell away.