By RASHAD ROLLE

Tribune News Editor

rrolle@tribunemedia.net

THE Court of Appeal has upheld a trial judge’s finding that the University of The Bahamas failed to comply with mandatory procedures under the Employment Act when it dismissed two employees in 2020.

The court found the dismissals of Tyrone Coakley and Sharon Musgrove Hanna to be both wrongful and unfair.

Under section 26A of the Employment Act, an employer considering redundancies must provide written notification and consult with the recognised trade union or employee representatives. This includes discussions on ways to mitigate adverse effects, appropriate selection methods, timelines, and possibilities for alternative employment.

The university’s actions did not meet these requirements. The court found that a February 2020 internal memorandum and a March 2020 letter were not adequate notifications under the Act. No consultation took place prior to August 2020, and the redundancy process was effectively restarted at that time.

Attempts to consult in December 2020 were also inadequate. The university sent letters to the union on December 2, inviting consultation. However, no meeting took place. Instead, on December 17, the letters were rescinded, and a new redundancy notice was issued. The court determined this sequence did not amount to consultation and did not address measures such as redeployment.

The court concluded that the trial judge was entitled to find there was no consultation in accordance with the Act and that the dismissals were not valid. It also affirmed that this amounted to wrongful dismissal under section 29 and unfair dismissal under section 34.

In terms of remedies, the Employment Act provides for both a basic and a compensatory award for unfair dismissal. Any redundancy payments already made must be deducted from the basic award. The compensatory award must account for losses such as benefits and expenses incurred due to dismissal, subject to statutory caps—24 months’ pay for managerial employees and 18 months for others.

The university advanced two defences: that the employees had refused alternative employment and that the redundancies were inevitable, making damages unnecessary—a so-called “Polkey deduction”. The court rejected both. It found no firm offer of equivalent re-employment had been made, and no evidence that consultation would not have produced a different result.

Regarding reinstatement, the employees appealed the trial judge’s refusal to reinstate them. The Court dismissed this appeal, finding that the judge acted within her discretion. It noted that the invalidity of the redundancies arose from procedural failings, not the absence of a legitimate redundancy situation.

On costs, the court ordered the university to pay 80% of the employees’ appeal costs, reducing the amount by 20% due to the university’s success on certain issues.