By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The University of The Bahamas (UoB) has been ordered to pay its former finance chief almost $158,000 after the Industrial Tribunal determined there were “glaring discrepancies” in its evidence.

Ingrid Cooper-Brooks, in upholding Ingrid Culmer’s claim for wrongful and unfair dismissal, found the University failed to explain the “conflicting evidence” supplied by senior executives including its former president, Dr Rodney Smith, who “completely contradicted” the institution’s written submissions by asserting at trial that he was legally responsible for all “hiring and firing”.

This, the Industrial Tribunal vice-president ruled, “seriously undermined” the University’s professed reasons for terminating Ms Culmer. Ms Cooper-Brooks found it had “failed to demonstrate just cause” for firing her, and breached the former finance head’s fixed-term contract by failing to show it “honestly and reasonably” believed she was guilty of misconduct sufficient to justify her dismissal.

Ms Culmer launched her wrongful and unfair dismissal claim after she was terminated on February 26, 2021. Her firing came after she and the University hit a “stalemate” over negotiations for a new contract following her appointment as acting vice-president of finance in January 2019.

Initially hired by the University as its financial controller for finance and business enterprises on June 5, 2018, Ms Culmer was engaged on a three-year, three-month fixed-term employment contract that was due to expire on September 4, 2021. Her annual salary was $126,690 inclusive of benefits.

Her promotion to acting vice-president of finance and business enterprises occurred just seven months later, with Ms Culmer’s responsibilities expanded to include all accounting operations. She was confirmed in the post on August 27, 2020, with the appointment made retroactive to January 1 that year pending completion of a new employment contract.

“Contract negotiations commenced in September 2020, but soon reached a stalemate over salary and contract duration,” the Industrial Tribunal noted. The University offered Ms Culmer a $126,025 annual salary, which was $665 less than what she had earned previously, and a fixed three-year contract.

The former finance chief, though, countered by seeking an annual salary that was almost $22,000 or 17.4 percent higher at $148,000 and a fixed four-year term. The University made a final $138,628 offer, which was 10 percent more than its original but $9,372 below Ms Culmer’s position, but stuck to the three-year term with one retroactive.

Ms Culmer rejected the University’s offer on February 4, 2021, which brought negotiations between the two sides to a halt. Then, just three weeks later, the University terminated her employment “for loss of trust and confidence” in her work, using clause 13 in her first contract - which still had six months to run - to justify its actions.

“The termination letter cited various acts of misconduct during her tenure,” the Industrial Tribunal recorded. “The applicant [Ms Culmer] contends that her dismissal was wrongful and unfair, and seeks damages in compensation or, alternatively, reinstatement.”

The termination letter, which bore Dr Smith’s name in his capacity as the University’s then-president and chief executive, “cited various reasons for the applicant’s dismissal, including poor inter-personal relationships, management deficiencies, refusal to attend training, criticisms of the University’s systems and the failed contract negotiations”. It offered Ms Culmer three months’ severance pay.

Dr Smith, in his letter, alleged that Ms Culmer’s January 5, 2021, written reply to the University’s contract offer contained “several gravely intemperate remarks” alongside a demand that she be paid “at the top of the salary range for the position” at $148,000 per annum.

The University, in its counter, said it determined it could only raise the salary offer by 10 percent of $12,600 while the three-year term was consistent with all vice-president employment contracts. After Ms Culmer rejected the final offer, Dr Smith listed “various material concerns” regarding the operation of the university’s finance and business office.

These, he alleged, included the dismissal of an employee without informing the University’s human resources department; “a significant overpayment” made to a member of staff; “employee deductions that should have been discontinued but were not; the alleged “co-mingling of grant and donated funds” in the University’s operating bank account; and delays involving their “critical” reconciliation;

Dr Smith also alleged that “numerous serious complaints” had been made about Ms Culmer by her colleagues, peers and the trade unions representing University of The Bahamas (UoB) staff, and accused her of “continuously criticising the University’s data management system” which he described as “one of the most advanced” in the world and used by 5,000 colleges and university.

As a result, Dr Smith said he and the University’s Board had decided to invoke clause 13 in Ms Culmer’s existing employment contract and terminate her “upon a basis of a loss of trust and confidence”. This clause stipulated that such a determination had to be made by both the University’s president and the Board.

Ms Culmer and her attorney, Camille Cleare at Harry B. Sands & Lobosky, argued that the University had “neither provided sufficient grounds” for her dismissal not “adhered to proper procedure” by ensuring the decision was made by both Dr Smith and the Board.

The former finance chief also asserted that Dr Smith’s February 2021 report to the University’s Board, the last before her dismissal, did not mention any alleged misconduct or a recommendation to terminate her. And neither the Board, nor the University’s executive committee, authorised her termination.

“Notably, Dr Smith admitted in cross-examination that he did not recommend her termination, nor was there any decision made by himself, the Board of Trustees or executive committee to dismiss the applicant, and she had not been dismissed by the Board,” the Industrial Tribunal said of the former president’s trial evidence.

“Instead, he chose not to proceed with contract negotiations for the vice-president of finance position. Additionally, he conceded that he did not advise the Board members to consider the actions outlined in the termination letter to determine whether [Ms Culmer] should be dismissed due to a loss of trust and confidence.”

Dr Smith also conceded that if a new employment contract had been negotiated “they might have been able to address some of his concerns” over the University’s finance department. Ms Culmer, though, was quick to seize on this and challenge the justification for her firing given Dr Smith’s admission “that he neither contemplated nor intended her dismissal”.

As a result, she argued that the University breached her employment contract by wrongfully terminating her without providing a chance to contest “such serious and widespread allegations” of misconduct. Its failure to do so meant it could not meet its burden of showing it “had a genuine and honest belief” Ms Culmer was guilty of the allegations.

Although the University stuck to its position that it was entitled to dismiss her for “a fundamental breach” of contract, Ms Cooper-Brooks and the Industrial Tribunal found in favour of the former finance chief.

“It is noted that there are glaring discrepancies in the respondent’s submissions regarding the reasons for the applicant’s dismissal and the admissions by Dr Smith, the respondent’s prime witness, who stated that he is statutorily responsible for hiring and firing in complete contradiction of those submissions,” the Industrial Tribunal found. 

“The Tribunal is of the view that, even if the respondent [the University] had legitimate grounds for terminating the applicant, any such grounds have been seriously undermined by the respondent’s conflicting evidence, casting doubt on the defence. Notably, despite vigorously defending the termination, the respondent has not addressed the Tribunal concerning the conflicting evidence.

“Having regard to the foregoing, the Tribunal finds on the facts that the respondent failed to demonstrate just cause for the applicant’s termination for loss of trust and confidence as stipulated under clause 13. That is, by the reasons provided for the applicant’s dismissal, as well as the manner in which the termination was executed.”

The Industrial Tribunal ruled that the University not only breached Ms Culmer’s contract but wrongfully terminated her employment. It awarded her $138,374 for wrongful dismissal, including $67,730 as early termination compensation; $33,500 for accrued vacation and the balance owed under her contract; and $23,884 in pension contributions. Another $19,484 was awarded for unfair dismissal.