A former senior engineering director for Atlantis has seen his $347,603 claim for wrongful and unfair dismissal comprehensively rejected by the Industrial Tribunal.

Donald McDonald, a near 28-year veteran who was among 775 staff terminated due to the “significant financial loss” suffered by the mega resort as a result of its enforced COVID-19 shutdown, alleged that it had committed multiple breaches of the Employment Act when it made him redundant on May 30, 2021.

Having previously been furloughed on March 23, 2020, under the emergency pandemic-related provisions introduced by the then-Minnis administration, he claimed that the Paradise Island flagship had both failed to inform him of his “impending redundancy” and consult with the minister of labour as required by law. And the engineering chief also asserted that he did not receive his redundancy pay in accordance with the Act.

Mr McDonald, who had earned an annual salary of $103,760, included salary, meal allowance, accrued vacation, a profit-sharing bonus, group insurance and pension, Christmas ham and turkey and “basic and compensatory awards” in his claim for $347,603. However, Ingrid Cooper-Brooks, the Tribunal’s vice-president, dismissed his claim in its entirety in an October 5, 2024, ruling to hand Atlantis a total victory.

Tackling Mr McDonald’s claim for wrongful dismissal first, and his assertion that he was given inadequate notice of his upcoming termination or “payment in lieu of notice”, Ms Cooper-Brooks noted that he brought his claim for unpaid wages and National Insurance Board (NIB) benefits during his 14-month COVID furlough under the Industrial Relations Act.

The former engineering head sought to “pursue greater benefits” than he was entitled to under the Employment Act, which would have been 52 weeks’ redundancy pay, via common law. While the Act is statute law, meaning it was passed by the Bahamian parliament, common law is based on customs and precedents set by past court/judicial decisions.

Long-serving employees have previously used common law to initiate legal actions seeking greater redundancy payouts, and benefits, than those available under the Employment Act, which sets a floor for this that is capped at a maximum of 12 years’ compensation.

“He argued that given his 27 years of service and age, 55, that 30 months’ notice would be reasonable as it would be extremely difficult for him to find alternate employment,” Ms Cooper-Brooks said of Mr McDonald’s stance. Atlantis, though, rejected his wrongful dismissal claim and asserted that the former senior engineering director had been paid the $103,760 he was entitled to under the Employment Act.

Noting that Mr McDonald had in fact received $108,932, which included accrued vacation, Atlantis argued that accepting this immediately undermined his claim. It also argued that the common law bid for greater benefits - 104 weeks, or 24 months’, pay compared to the Employment Act’s 52 weeks or 12 months - was “misconceived and meritless” and not supported by “the current jurisprudence of employment law”.

Ms Cooper-Books agreed, finding that Mr McDonald’s wrongful dismissal claim was governed by statute law and the Employment Act rather than common law. “Moreover, it is well-established that statute law prevails over common law,”she said, adding that the ex-engineering head was properly paid his redundancy entitlement and not entitled “to any greater benefits”.

Mr McDonald, as part of his claim, had also argued he was due $121,939 to cover the 14-month period when he was furloughed due to COVID-19. Arguing that there was “no contractual provision allowing lay-off without pay”, he added that all workers placed on furlough during the pandemic were still “classified as employees” due to the emergency provisions enacted by the Government.

Those provisions suspended a key section in the Employment Act relating to employees who were laid-off but not made redundant, Mr McDonald argued. “However, once companies decided to formally make staff redundant during this period they were required to pay for the lay-off as staff were no longer employees and therefore not falling under the emergency Order,” he argued.

Mr McDonald also contended “that, as a general rule, there is no right of an employer to lay-off employees at common law without pay”. However, Atlantis pointed to the Employment Act’s section 28 which it argued gives companies the right to lay-off workers if there is no work for them to perform.

This, it added, applied squarely to Mr McDonald’s situation - something that Ms Cooper-Brooks agreed with. As a result, he was not entitled to compensation for the lay-off period as employers were permitted not to pay furloughed staff. And, having been fully compensated for his redundancy, no additional sums were due to the former engineering head.

As for his unfair dismissal claim, Mr McDonald argued that he was the most senior of the two senior engineering directors and “no reasons were provided for choosing to dismiss him and retain the other individual”. This, he claimed, violated the Employment Act’s section 37.

But Kenneth Lightbourne, Atlantis’ vice-president of labour relations, asserted that “the selection process was fair and objective” in choosing who to make redundant. Besides himself, it involved a team featuring Karen Carey, a former senior vice-president; Daniel Bonello, senior vice-president of engineering; Tameka Forbes, vice-president of recruiting; and Tesma Moss-Lloyd, a human resources executive director.

“He elaborated that both individuals’ work performance and understanding of the resort was compared, and the other individual demonstrated better performance and was considered more experienced,” Ms Cooper-Brooks wrote in her verdict.

“Also, at the time, the applicant was responsible for two towers whereas the latter was responsible for three towers, and it was decided that he was more capable of taking on the responsibilities of two additional towers and managing a broader scope of duties.

“Mr Lightbourne acknowledged that while the applicant had been employed since 1993, the other engineer, despite starting three years later, was more suited to the additional responsibilities.” However, Mr McDonald argued that Atlantis also failed to comply with new Employment Act provisions, introduced in 2017, which requires employers to consult with or inform the minister of labour when terminating 20 or more staff.

Atlantis, in its defence, produced the May 18, 2021, and May 23, 2021, letters sent to all staff by Audrey Oswell, the resort’s president and managing director, advising of the “impending redundancies” stemming from “the financial challenges due to the COVID-19 pandemic, resulting in the resort having to drastically cut costs and make 700 employees redundant”.

Mr McDonald alleged that, while he received the letters, the notice period was insufficient and did not comply with the one week demanded by the Employment Act. However, Atlantis asserted that while the letters stated May 23, 2021, was the redundancy date, it was not until May 30 - one week later - that Mr McDonald was terminated.

Mr Lightbourne, too, countered that he advised then-minister of labour, Dion Foulkes, via letter and phone conversation on May 17, 2021,and May 19, 2021, about the resort’s plans to terminate staff in compliance with the Employment Act. 

As a result, Ms Cooper-Brooks found Atlantis had complied with the Act and there was no merit to Mr McDonald’s unfair dismissal claim. However, the latter was not finished, as he also claimed Atlantis committed further Employment Act breaches by failing to provide his redundancy pay on or before the termination date. Instead, he received it in three monthly installments of $36,311.

“Mr Lightbourne testified that due to the significant financial loss suffered from the pandemic, which resulted in the closure of the resort, the respondent was unable to pay all 775 redundant employes in full at once,” Ms Cooper-Brooks wrote. “However, the applicant was paid his entire entitlement, and acknowledged receiving the aggregate sum of $108,932 in three installments which he accepted without objection.”

As a result, the Industrial Tribunal vice-president said Atlantis’ explanation was “reasonable” and “not unfair” given that they did not negatively impact Mr McDonald. And she also dismissed his claims for items such as meal allowance, accrued vacation, profit-sharing bonus, group insurance and pension, and Christmas ham and turkey.