The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Wendy’s owner has overturned a $27,000 wrongful dismissal verdict in favour of two ex-staff who allegedly failed to pay due taxes on personal goods imported via the company’s containers.

Sir Michael Barnett, acting Court of Appeal justice, in an April 17 ruling said the Industrial Tribunal had committed “a fundamental error of law” by not considering the import duties non-payment when finding in favour of Juliette Joseph-Josey and Stacy Johnson.

The Tribunal had originally found that the duo did have permission to import personal items in the trailers/containers of Aetos Holdings, the parent group for the Wendy’s, Marco’s Pizza and Popeyes Chicken fast food franchises.

As a result, it ruled that Joseph-Josey and Johnson were wrongfully dismissed, awarding the former $12,584 and the latter some $14,638. However, Sir Michael and the Court of Appeal overruled the Tribunal on the basis that it had failed to consider the tax non-payment that was only discovered two years’ after-the-fact when Aetos Holdings conducted an audit.

“The respondents were employees of the appellant company, who used the company’s container to transport personal items from the United States to The Bahamas,” Sir Michael said of Joseph-Josey and Johnson.

“The issue before the Tribunal was whether or not they had the permission of the company to use the company’s containers to transport the items and, secondly, whether or not they were 1 dishonest in failing to pay the Customs duties payable on those personal items which were transported in the company’s container.

“The matter came before the Tribunal, and the Tribunal found that the employees did in fact have the permission of the company to use the company’s trailers or containers for the purposes of transporting their personal items. On that basis the Tribunal determined that the employees were wrongfully dismissed.”

But Sir Michael then added: “Unfortunately, the vice-president did not go on to consider the second aspect of the pleaded defence of the employer; that the employees failed to pay the customs duties payable on those personal items when they were obliged to do so, and that this failure to pay the customs duties was not discovered until two years later when it appears that the company conducted some form of an audit.

“The appellant is entitled to have that part of their defence considered by the Tribunal in determining whether or not they were entitled to terminate the employees. The Tribunal did not consider that part of the appellant’s defence and, in our view, that is a fundamental error of law.

“Parties are entitled to have their defences considered in its entirety, and a Tribunal is not entitled to ignore any part of a party’s defence to proceedings before it.”

Sir Michael and the Court of Appeal thus quashed the Industrial Tribunal’s verdict and sent the case back to it for a new hearing, “in particular, to consider the aspect of [Aetos Holdings] defence that the employees were dishonest in failing to pay the Customs duties on a timely basis when the items were delivered to them in Nassau”.

Obie Ferguson, the Trades Union Congress (TUC) president, represented Aetos Holdings, while Rawson McDonald acted for the former employees.