The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A trade union leader yesterday pledged to “never give up the fight” after the Court of Appeal overturned an Industrial Tribunal verdict that it won previously against Grand Bahama Power Company.

Roscoe Burrows, the Commonwealth Electrical Workers Union’s (CEWU) president, told Tribune Business the union has yet to decide whether to challenge the unanimous Court of Appeal ruling that it can become “involved” in GB Power’s decisions to terminate union members only in specific situations detailed in the two sides’ industrial agreement.

“It made for an interesting read,” Mr Burrows said of the verdict. “We haven’t made a decision [on an appeal] either way as yet. It just recently came out late Friday evening. We haven’t had a chance to speak about it among ourselves. Once we do that, we will determine the way forward from there. The union will never give up the fight. The union will never lay down and push up the daisies. We have got to keep pushing.”

Appeal justice Milton Evans recorded in his written verdict how the dispute between GB Power and the union erupted over the dismissal of one of the latter’s members, Albert Braynen, as project technician on February 12, 2021, after nearly five years with Grand Bahama’s monopoly energy supplier. He received $9,238 in compensation.

GB Power did not inform or consult with the union prior to the dismissal, and no union representative was present when Mr Braynen was handed his dismissal letter. The union subsequently filed a trade dispute with the Department of Labour alleging that the termination had breached the two sides’ industrial agreement because the technician had not been allowed to have union representation.

The utility denied any violation, and the dispute eventually reached the Industrial Tribunal. Helen Amorales-Jones, its vice-president, in a May 2, 2022, verdict found in the union’s favour by ruling that the industrial agreement “does not have the right to dismiss an employee within the bargaining unit without giving the union an opportunity to be heard on behalf of members of the bargaining unit before the appellant dismisses such employee with notice.

“That is to say, for reasons other than unsatisfactory assessment at the end of probation, cause or redundancy,” appeal justice Evans wrote. GB Power’s appeal, he added, was based on the true meaning of the industrial agreement’s article 19 (5) which dealt with redundancies and terminations, and the formula for compensating those dismissed for reasons other than probation, just cause and termination.

The Industrial Tribunal found, though, that this did not detract from the union’s status to act as the bargaining agent for its members and represent them in situations where they could lose their jobs. It added of GB Power: “The manner in which the respondent seeks to construe the agreement goes against the very essence and spirit of the agreement. It would completely defeat the purpose of employees having a trade union as their bargaining agent.

“It would mean that, henceforth, the respondent could terminate the employees in the bargaining unit under Article 19(5), without ever having to proffer a reason for their termination, even if the reason for the dismissal was unfair or because of suspected gross misconduct or redundancy. It would effectively deny the applicant union the opportunity to safeguard its members’ interests in retaining their job.”

The Court of Appeal, though, said the Industrial Tribunal had overlooked the fact that an employer cannot be forced by law to retain an employee unless ordered to by the Supreme Court. And it said GB Power’s industrial agreement does not require it to consult with the union on every termination, instead setting out the situations when this must occur.

“It is clear that the spirit of the agreement calls for co-operation between the parties. However, what it does not do is provide the union with the right to be involved in managerial decisions of the employer in determining whether to terminate an employee in circumstances other than those specifically identified in the agreement,” acting justice Evans wrote.

“For the foregoing reasons I find that on a true and proper interpretation of Article 19 (5) of the industrial agreement, the appellant (GB Power) is not required to provide the respondent union with advance notice of its intention to dismiss an employee within the bargaining unit and/or conduct a fair hearing with the union over the question of whether such employee ought to be dismissed in advance in circumstances where the appellant terminates such employee for reasons other than probation, cause or redundancy.” The dismissed union member must also be compensated in accordance with the industrial agreement.