The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Seventeen former Gaming Board employees, who were found to have been unfairly dismissed, have lost their bid for reinstatement some four-and-a-half years after they were terminated.

Senior justice Indra Charles, in a January 6, 2023, verdict found that the group had simply left it "too late" to seek to return to their former jobs. She ruled that they should have moved far more rapidly to obtain a fresh reinstatement date from the Supreme Court as their rehiring prospects became "grimmer and grimmer as each day passes".

Given that all 17 had been made redundant between October 2017 and February 2018, Justice Charles agreed with the Attorney General's Office, which was representing the Gaming Board, that the length of time which has elapsed made it impractical for the group to return to the casino and web shop regulator.

The ruling comes almost three years after Justice Charles first found, in February 2020, that 24 Gaming Board employees - split into eight managerial workers and 16 line staff - were "entitled to reinstatement, which should take place no later than June 30, 2020, and/or damages for wrongful and/or unfair dismissal".

The 17-strong group, who were the subject of the judge's early 2023 ruling, were among those 24. Justice Charles, in her initial verdict, slammed the Gaming Board’s failure to follow “clearly set out” employment law procedures when it dismissed the workers as “mind boggling”.

She 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”.

And Justice Charles also 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.

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. However, while the initial ruling required that the 24 impacted workers be reinstated by end-June 2020, that did not occur because the Gaming Board moved to appeal Justice Charles' verdict on May 7 that year.

All sides agreed that the reinstatement Order, as well as compensation for wrongful/unfair dismissal, would be stayed pending the outcome of any Court of Appeal ruling. The Gaming Board, though, ultimately withdrew its appeal on December 15, 2020 - a move that Justice Charles said neither she nor the Supreme Court were made aware of.

In her latest verdict, she noted that the matter went quiet "for nearly two years" despite suggestions that both sides had held negotiations to resolve all issues. It was only revived on July 8, 2022, when the Gaming Board filed a summons requesting that damages be assessed. This triggered two filings on behalf of the 17 former employees. One, from the Munroe & Associates on behalf of 12 of the group, asked the Supreme Court to set a date for their reinstatement.

The other five, represented by Obie Ferguson KC, sought a Committal Order against the Gaming Board's officers and directors for allegedly disobeying the Supreme Court's Order. However, Justice Charles said all parties subsequently determined that the key issue to be resolved was whether the reinstatement of the 17 to their former jobs was "practical" and the date when this was to take effect.

"Succinctly put, the Munroe plaintiffs and the Ferguson plaintiffs assert that, in the judgment delivered on February 17, 2020, the court ordered the reinstatement of the plaintiffs to take place on or before June 30, 2020. Since the reinstatement has not taken place on that date, or, at all the plaintiffs ask the court to fix a date for that to happen, which they assert ought to be December 15, 2020 (the day when the Gaming Board withdrew its appeal)," Justice Charles said.

"On the other hand, the Gaming Board asserts that, because the plaintiffs were made redundant and because of the lengthy passage of time, reinstatement is impractical." It added that the February 2020 ruling, which said the workers were "entitled to reinstatement, which should take place no later than June 30, 2020, and/or damages for wrongful and/or unfair dismissal", meant there were other options besides reinstatement.

Justice Charles, weighing up the arguments, said her initial ruling stipulated that if the Gaming Board could not find positions for those employees it could "immediately embark upon the process of dismissing them. She added: "Even at the date of the delivery of the judgment in February 2020, the court was concerned with the passage of time.

"The plaintiffs were terminated for redundancy in October 2017 through to February 2018, a period of nearly two years. It was for that very reason that the court did not give the Gaming Board too much time – a little over four months - to either find suitable positions to place the plaintiffs or immediately embark upon the process of dismissing them.

"I therefore disagree with [the] interpretation that the court ordered the Gaming Board to reinstate the plaintiffs per se. Further, had the plaintiffs approached the court in December 2020 when the appeal was withdrawn, the plaintiffs might have had a better case for reinstatement," Justice Charles continued.

"It is now more than four-and-a-half years since the plaintiffs were made redundant. The practicability of reinstatement after such a long period becomes grimmer and grimmer as each day passes. It was therefore incumbent on the plaintiffs, who brought this case, to approach the court much earlier to request a new date for reinstatement."

The Gaming Board argued that some employees "have not approached the court with clean hands, as some of them were gainfully employed between the periods February 17, 2020, to June 30, 2020, and would have continued their employment with other employers for periods extending far beyond these dates and up to today".

It produced their National Insurance Board (NIB) contributions as evidence to back this assertion, while accusing four former staff - Georgette Dorsett-Johnson, Mazell Hinzey, Claudette Capron (now deceased) and Jennifer Russell - of seeking to "unjustly enrich" themselves by claiming reinstatement despite having opted for retirement and received their respective pensions.

"All things considered, had the plaintiffs pursued this matter with alacrity, the court might have been able to fix another date for reinstatement shortly after the appeal was withdrawn and dismissed," Justice Charles ruled.

"It is not a good and sufficient reason to say that they were the ones spearheading the discussions between the parties. Simply put, an application should have been made to the court sooner even as negotiations were ongoing. It is now too late for the plaintiffs, who were made redundant more than four-and-a-half years ago to be reinstated."

Munroe & Associates represented Jean Minus; Marva Heastie; Barbara Adderley; Antonique Brown; Jennifer Russell; Genese Musgrove; Meresha Walkes; Jacqueline Duncombe; Nickia McPhee; Mazell Hinzey; Tenielle Mackey; and Inga Brown. Mr Ferguson acted for Kayla Ward; Georgette Johnson; Dwaynel Archer; Hope Miller; and Latoya Knowles.