$11,000 award for security guard in overtime dispute
NASSAU, BAHAMAS — The Court of Appeal has affirmed “in its entirety” an Industrial Tribunal decision to award a minimum wage security guard nearly $11,000, agreeing that companies cannot lawfully “contract out” of paying overtime.
Westech International Security appealed the Industrial Tribunal’s decision handed down in October 2021.
Industrial Tribunal vice-president Simone Fritzcharles awarded former employee Jason Tynes some $10,903 representing overtime pay for the period of 2014-2018 in accordance with section 10 of the Employment Act, Ch. 321A.
In the ruling, Fritzcharles noted that the Employment Act stipulates that no employer could require an employee to work in excess of eight hours per day, or 40 hours per week, without paying overtime. Additionally, where workers are “required or permitted” to work in excess of the standard hours of work, their rate of pay is to be “one-and-one-half times their regular rate of pay.
Westech contended that notwithstanding the clear intent of sections 4 and 10 of the Employment Act, the Tribunal’s award of overtime pay to Tynes erroneously interfered with the parties’ right to freedom of contract enshrined in the International Covenant on Economic, Social, and Cultural Rights to which The Bahamas is a party.
According to the appellate court, Westech had argued that the Tribunal’s award was wrong in law since it ignored the undisputed evidence that Tynes had, upon his engagement with the company, signed Westech’s Code of Conduct and Company Policies which contained an express stipulation that “the company does not pay overtime.”
The Court of Appeal noted that the Employment Act was passed in 2001 and took effect in January 2002, well over seven years before The Bahamas signed and ratified the United Nations Convention of Economic Social and Cultural Rights (CESCR).
The Court of Appeal noted that the Employment Act was enacted by the Parliament of The Bahamas to provide minimum standard hours of working and vacation with pay for Bahamian employees.
“The relevant provisions (sections 8, 9 and 10) are located in Part II of the Act dealing with Standard Hours of Work, days off and overtime pay,” the ruling read.
“The provisions speak for themselves. It is no part of this Court’s role to “strike down” as somehow inconsistent with the United Nations Convention of Economic Social and Cultural Rights, the minimum standard working hours and overtime provisions which the Parliament of this country has in its wisdom seen fit to enact. To do so would in effect be to assume law-making power which this Court, quite simply, does not possess. The appellant is not an “essential service” and therefore would be unable to lawfully cause or permit the respondent as its employee to “exceed the prescribed standard hours of work” as provided for in section 8(3),” the Appellate Court noted.
Tynes was hired in late 2013 at $210 per week – the minimum wage at the time- and was paid at regular salary rates, of $5.25 per hour, for all overtime and work performed on public holidays.
Westech claimed that Tynes committed multiple gross misconducts, gross insubordination, gross insolence, sleeping on the job, and abandonment of post to justify his summary dismissal from the company. Tynes did not resist his dismissal, but instead lodged a “trade dispute” claiming unpaid overtime pay pursuant to the Employment Act.