By NEIL HARTNELL
Tribune Business Editor
A Supreme Court judge has slammed the Gaming Board’s failure to follow “clearly set out” employment law procedures when it dismissed 24 staff as “mind boggling”.
Justice Indra Charles, in her much-anticipated February 17 verdict, suggested that the casino and web shop regulator had failed to adhere to modern industrial relations practices requiring employers to be candid and forthright with staff as it never showed how those workers were “chosen to be made redundant”.
She ruled that the Gaming Board had failed to comply with both the Bahamas Public Services Union (BPSU) industrial agreement, which governed the impacted line staff, plus the 2017 reforms to the Employment Act that mandated “consultation must take place” with the affected workers and their representatives when more than 20 are being terminated.
Justice Charles also found that the Gaming Board had pressed ahead with the redundancies despite its chairman, Kenyatta Gibson, being told of the need to adhere to these procedures by BPSU and worker representatives.
“It is mind-boggling that the defendant did not follow the procedure which is so clearly set out in the law even after representations were made to the chairman that the bargaining agent must be informed and consulted once ‘employees’ are made redundant,” she wrote.
“The defendant produce no evidence as to how these 24 plaintiffs were chosen to be made redundant. The failure of the defendant to adhere to the redundancy procedure as stated in the Employment Act (as amended) and the Industrial Agreement results in the Plaintiffs being wrongfully and/ or unfairly dismissed.”
Justice Charles ruled that the 24 line and managerial staff were entitled to reinstatement to their posts, which must take place by June 30, 2020, and/or damages for wrongful and unfair dismissal. She also found that they were “entitled to special damages”, but could do nothing for the 12 probationary and contract workers who were also made redundant by the Gaming Board at the same time.
Setting out how the dispute unfolded, Justice Charles said it stemmed from an October 17, 2017, decision by the Gaming Board’s Board that “there is a need to embark upon a restructuring exercise in an effort to create maximum organisational efficiency”.
Georgette Johnson, one of the dismissed employees, in her evidence recalled how she attended the first Board meeting following the Minnis administration’s May 2017 election in September of that year. “She had anticipated that she would be called upon to present all outstanding reports on the areas that she supervised,” Justice Charles wrote.
“However, the chairman [Mr Gibson] advised that she was invited to discuss other pressing matters. She stated that the chairman expressed his concern about the number of ‘misfits’ at the defendant Board. She further averred that the chairman stated that the defendant Board was overstaffed, and she should recommend persons to be disengaged.
“However, she duly informed him and Board members that she would be unable to make those recommendations and that the defendant Board should carry out a manpower and training needs analysis to determine the same.”
Mrs Johnson also recalled the Gaming Board’s redundancy plans were discussed during a meeting held by Cameron Symonette, a member of the regulator’s Board. She said during cross-examination: “Like I said in this statement, Mr Symonette would have stated that as per his experience, and he drew reference to an organisation that had 200 employees, he said likewise, the Board has about 200 employees and there is only a need for one person in payroll administration. So a discussion was had on who would be the best person for the position, and it was concluded that Claudia Williamson should be the person.”
Mr Gibson and the Gaming Board subsequently issued a statement following the redundancies, explaining that the regulator’s needs had become technology focused as opposed to manpower focused due to the rapid evolution of web shop and casino gaming.
Justice Charles said it was “plain” that the Gaming Board had embarked on a restructuring exercise, noting that seven of the managerial employees made redundant had worked for the regulator for between 11 to 32 years. And she added that it was “crystal clear” that it had to comply with the BPSU industrial agreement in relation to the line staff.
“I found as a fact that the defendant failed to inform and consult with the bargaining agent/representative as well as the minister of labour regarding the Plaintiffs’ termination,” the judge ruled. “It was the representatives of the bargaining agent [BPSU] who contacted the defendant.
“She [Ms Bain] stated that she and the president were able to make contact with the chairman [Mr Gibson], and he informed them that the terminations were based on a human resources audit which resulted in persons being terminated since they were not qualified.
“They also inquired of the chairman as to the reason for not informing the bargaining agent, to which he gave no response. Ms Bain stated that they asked the chairman whether he would give consideration to reinstating the persons who were terminated, and he responded that he will not reinstate the terminated persons.”