The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A carpenter has lost his $137,280 wrongful and unfair dismissal claim against a major Bahamian contractor for whom he worked at regular intervals over 32-and-a-half year period.

Sharada Ferguson, the Industrial Tribunal’s vice-president, ruled in a February 8, 2024, verdict that Emelcha Brown’s claim against CGT Contractors and Developers must be dismissed in its entirety because the evidence showed he was never continuously employed between July 1988 and February 2021.

Instead, due to the stop-start nature of the construction industry he was employed on a series of fixed-term contracts to work on specific building projects and released when his services were no longer required. Mr Brown’s National Insurance Board (NIB) records showed multiple breaks in his employment records with CGT, with the longest lasting “over a year”.

However, in demanding wrongful and unfair dismissal compensation, Mr Brown - who rose from starting as a “helper” to “become a skilled carpenter” - denied that he was ever laid-off or terminated by CGT. The dispute that ended a more than three decade relationship with the contractor occurred after he was hired to work on Commonwealth Bank’s new Abaco branch post-Hurricane Dorian.

Entitled to $14.30 per hour wages, he was hired to work on the project on November 29, 2019. Then, on February 11, 2021, Mr Brown took a week’s vacation and travelled from Abaco to New Providence while the COVID pandemic was still raging. Requiring a COVID test to return to Abaco, he tested positive for the virus and was informed of the results by Chacarvia Cox, CGT’s office administrator, on February 16, 2021.

Under the regulations in effect at the time, Mr Brown was required to quarantine or isolate himself for 14 days until March 3, 2021. “It was alleged by Ms Cox that during two telephone calls with the applicant on February 16, 2021, he cursed her out,” Ms Ferguson wrote in her verdict.

“The incident allegedly concerned the applicant’s positive COVID-19 results and allegations that he made about the results coinciding with his request for a pay rise whilst in Abaco. Ms Cox reported the incident to Larry Treco, managing director of the company.”

While Mr Brown paid for his ‘negative’ COVID test on March 10, 2021, he did not return to Abaco and the Commonwealth Bank project was completed by other carpenters. He met Mr Treco on March 31, 2021, who raised the “disorderly conduct toward Ms Cox” but Mr Brown denied using obscene language.

Subsequently, he was offered on April 9, 2021, the chance to work on construction of AID’s new Blue Hill Road store. “The job form, however, contained no details about the salary and the applicant refused to sign the form. The applicant is admittedly unable to read,” the Industrial Tribunal noted.

“On the same date, a warning letter pertaining to the alleged February 16, 2021, incident with Ms Cox was given to the applicant. The applicant refused to sign or formally acknowledge receipt of the letter and Mr Treco was informed about the applicant’s refusal to accept the letter.” His tools were returned to him, and Mr Brown received no more work from CGT.

Instead, he filed a trade dispute with the Department of Labour on June 15, 2021. Mediation failed, and Mr Brown’s claim for wrongful and unfair dismissal was referred to the Industrial Tribunal that August. CGT’s defence, though, was that he was never terminated and, with the Commonwealth Bank project having ended, he simply refused to work on the AID store. It also denied that Mr Brown was a permanent worker.

Ms Ferguson found Mr Brown “to be not credible in his testimony in some material particulars and recollection of events” when the dispute was tried before her. “Quite remarkably, the applicant in one instance even outright disagreed with the accuracy of details contained in his own witness statement,” she wrote.

It also emerged that Mr Treco and his brother, Wayne, met with Mr Brown shortly after efforts to reconcile the dispute failed. “Mr Treco testified that shortly after the July 20, 2021, conciliation meeting he telephoned Mr Brown to invite him to a meeting with him and his brother, Wayne,” the Industrial Tribunal ruling noted.

“Mr Treco testified that the three men met, and that the purpose of the meeting was to discuss namely where this was going and possibly put a nuisance value offer to him.” Mr Treco said: “I remember my brother asking Mr Brown how much money he wanted to settle for, because we were not prepared to pay $137,280.”

Ultimately, Ms Ferguson found that Mr Brown had failed to prove “on a balance of probability” that his series of multiple fixed-term contracts for specific construction projects amounted to continuous, full-time employment by CGT. This was contradicted by his NIB records which “overwhelmingly reveal inexplicably wide gaps or breaks for as long as a year-and-a-half in one instance” in his contributions.

“The Tribunal finds that the many large gaps or breaks in employment appear genuine and are more suggestive of non-continuity of employment and accords more with the respondent’s evidence that the applicant was employed on a project-by-project basis and not permanently,” Ms Ferguson wrote.

“The applicant has provided no plausible alternative explanation for the large gaps or breaks in employment. Based on the evidence, the applicant’s vehement insistence that he has worked for the respondent 33 years uninterrupted is quite simply not true and the Tribunal rejects such a claim.” Due to this finding, the claim for unfair and wrongful dismissal also melted away.