By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Atlantis restaurant manager who was fired for asking a female employee to “show him her ‘sexy body’” has been stripped of his $31,200 damages award for unfair dismissal.

The Court of Appeal, in its January 31, 2025, verdict, overturned a previous Industrial Tribunal ruling by finding that the dismissal of Bradley Babbs, a near-30 year veteran of the Paradise Island mega resort, was not compromised by the failure to provide him with a written copy of his accuser’s witness statement.

The appeal court, in a unanimous decision written by its president, justice Milton Evans, noted that his termination stemmed from a sexual harassment complaint after Mr Babbs allegedly promised a female employee, Ms Cartwright, he would arrange her transfer to the restaurant she managed provided she agreed to display her ‘sexy body’ to him in a video call.

Noting that the now-fired manager was earning $650 per week when dismissed on February 14, 2022, the Court of Appeal said: “On February 10, 2022 a female employee made a formal complaint that she received a call from the respondent [Mr Babbs], offering to recommend her transfer to the restaurant he managed on condition that she would video chat with him to see her ‘sexy body’.

“She claimed that she found the respondent’s comments inappropriate. Consequently, on February 12, 2022, the respondent was suspended for two days without pay, pending investigation. Upon the respondent’s return from suspension on February 14, 2022, the appellant [Atlantis and its Island Hotel Company subsidiary] conducted a hearing regarding the complaint of gross misconduct.”

This involved alleged “sexual harassment” of the female worker making the complaint, “and for offering, in his managerial capacity, to ensure the complainant’s transfer to another restaurant. At the conclusion of the hearing, the respondent was summarily dismissed for gross misconduct, without pay and without notice”.

“The appellant considered this conduct a fundamental breach of company policy which undermined the trust and confidence inherent in the respondent’s contract of employment,” the Court of Appeal added. Mr Babbs then met Kenneth Lightbourne, Atlantis’ vice-president of labour relations, and Charlie Colebrooke, the vice-president of food and beverage, the day after his dismissal on February 15, 2022.

“He requested that his dismissal be reviewed and/or overturned as there was no sexual intent in his message and communication with the female employee. Mr Colebrooke and Mr Lightbourne listened to the respondent’s explanation and, thereafter, Mr Colebrooke affirmed the appellant’s position and advised the respondent that his communication with the female employee amounted to sexual harassment,” the Court of Appeal recorded.

“The respondent, thereafter, initiated the appellant’s domestic appeal process and requested that his dismissal be reviewed as the allegations levied against him were false.” The review panel charged with this task included Robbie Leming, a senior Atlantis executive; Cathy-Ann Cromarty-Johnson, a senior human resources representative; and Charmaine Hepburn, an employee of equal status as Mr Babbs.

None had any involvement with the case prior to the appeal. “The female employee stated her case and the respondent was once again allowed to defend the allegations in the presence of the employee. Subsequent to hearing all of the facts, the review panel agreed to uphold the decision to summarily dismiss the respondent,” the Court of Appeal added.

Undeterred, Mr Babbs then appealed his firing to the Industrial Tribunal. Its vice-president, Ingrid Cooper-Brooks, rejected his claim for unfair dismissal in her May 24, 2024, verdict by finding that Atlantis had conducted “a fair and reasonable investigation” into the complaint against the ex-restaurant manager and  “had reasonable grounds on which it honestly believed on a balance of probability” he was guilty of misconduct.

However, she found Mr Babbs had been unfairly dismissed because Atlantis had “withheld information to which he was entitled” - namely a written copy of the accuser’s witness statement and claims. The Industrial Tribunal found this “ought to have been provided as a normal part of discovery and procedural fairness, particularly since he requested it”.

And Ms Cooper-Brooks also found that Atlantis breached its own policy manual and procedures for handling staff suspensions by not paying Mr Babbs for the two days when he was suspended. She then awarded him $31,200, or a year’s pay, for his unfair dismissal.

Atlantis appealed that award, pointing out that the accuser’s entire statement was read to Mr Babbs and that he was shown a written copy. The Paradise Island mega resort, attacking the finding of “procedural unfairness”, also argued that the ex-restaurant manager was allowed to “face and confront” his accuser during the hearings.

Ferron Bethell KC, of the Harry B Sands, Lobosky & Company law firm who was acting for Atlantis, argued that Mr Babbs had failed to provide any details to support his wrongful and/or unfair dismissal claim. His only complaint was that he did not have a fair hearing because Mr Bowleg, an executive director with whom he had “a contentious relationship”, presided at his appeal hearing.

However, the Industrial Tribunal found this was “unsubstantiated” because no evidence was provided to support this claim. Mr Bethell, though, argued that it was unreasonable for the Industrial Tribunal to base its unfair dismissal verdict on Atlantis’ failure to provide Mr Babbs with a copy of his accuser’s written statement given all the other procedural efforts to accommodate his appeal.

But Sidney Collie, the former Cabinet minister representing Mr Babbs, argued that “the misconduct alleged, even if it was true, could not amount to gross misconduct. Further, that the letter of hire did not list gross misconduct among the offences for which he could be terminated.

“Secondly, counsel contended that the appellant did not conduct a fair and reasonable investigation. He contended that the respondent was never given or even shown a copy of Ms Cartwright’s statement against him; that it is not enough for Mr McKenzie to read from the complainant’s statement with the excuse that it was not the company’s policy to provide the documents to the accused,” the Court of Appeal added.

“If this is done, as it was in this case, the respondent correctly argued that he had no way of verifying if what was being read in his hearing was what was actually reported by the complainant.” The Court of Appeal, though, found it was wrong for the Industrial Tribunal to ground its decision on Mr Babbs not being given a written copy of his accuser’s statement.

“In considering this issue I have given consideration to the fact that the only real difference between the complainant’s version and that of the respondent is that he denies asking her to show him her ‘sexy body’ if she wanted to get the transfer on her job,” appeal court president Evans wrote.

“He admitted asking her to turn on the video but denied requesting to ‘see her sexy body’. Management believed the complainant’s version of the conversation and not that of the Respondent. The learned vice-president accepted that management conducted a reasonable investigation and honestly believed that the respondent had committed the offence.

“In these circumstances, I can see no reason why the omission to have a copy of the statement would render the dismissal unfair.” As a result, the Court of Appeal upheld Atlantis’ appeal and overturned the prior $31,200 award to Mr Babbs.