Court of Appeal overturns former BPL worker’s unlawful dismissal judgement

NASSAU, BAHAMAS — The Court of Appeal has overturned an unfair dismissal judgment in the case of a former Bahamas Power & Light (BPL) plant operator, finding that the former employee was not under duress when he accepted a disability retirement package offer from the company four years ago.

BPL had filed an appeal against a June 19, 2019 decision of Marilyn Meeres, vice-president of the Industrial Tribunal dated the 19th day of June, in which she found that Don Smith, an assistant plant operator and member of the Bahamas Electrical Workers Union (BEWU) “under duress when he signed the release” and accepted the disability package and that the appellant (BPL) had “unfairly dismissed” the respondent.

According to the evidence, Smith had been employed with the company since 2004. After about five years on the job, he began developing migraine headaches and nose bleeds. Some six months later in April 2010, he suffered a grand mal nocturnal seizure for which he was hospitalized and treated.

When Smith returned to work, however, he was reportedly still not fully recovered and began to suffer some adverse effects. The prescription which he had been given interfered greatly with his ability to function normally, with some its effects that he experienced were dizziness, blurred vision and he had a very hard time concentrating. His condition did not improve notwithstanding further treatment.

It was noted that Smith was apparently relocated to a desk job which did not work out, with conflicting evidence between the parties on why this was not successful. On June 30, 2017, Smith received a disability retirement package letter from Marisa Mason-Smith, AGM, HR & Training at BPL; and on the same date, he received a disability retirement letter from Chequita Johnson, Manager of Compensation & Benefits.

It was noted that after meetings between the parties, Smith signed a deed of release and accepted the funds offered pursuant to the agreement between the parties. However, on April 26, 2018, he caused an Originating Application to be filed on his behalf alleging that he had been unfairly dismissed.

In his evidence before the Tribunal, Smith acknowledged that he signed the deed of release and accepted the money, some of which he had already spent. However, he stated that he felt that he had no other choice but to sign the release. He claimed that he got no advice from the Union and that although he received advice from his attorney he did not feel that not accepting the settlement was an option as the appellant had indicated that it represented their final offer.

According to court records, Smith had received a total of $74,140.07 and while the Tribunal had not been of the view not that he should be reinstated, it was of the the view that he should continue to receive his payment of $689.57 per month for life “as he would have received the same had he not been unfairly terminated”.

In delivering the appellate court’s decision Justice Milton Evans noted that Smith had admitted to signing the Deed of Release which was dated July 5, 2017.

“The respondent makes no allegation that the appellant exerted any undue pressure on him save to say to him that the offer which was being made was their final offer,” the ruling read.

“Astrid Bodie the Secretary to the Union confirmed that she was present at all meetings and that no pressure was exerted by the Union nor Management to persuade the respondent to accept the settlement. The evidence from both sides was consistent in confirming that he sought legal advice before making his decision.

“It follows that there was really not much dispute as to the evidence which the Vice President had before her to determine whether there was duress,” Evans said.

He added: “The question was whether those facts were sufficient to constitute duress in law.  The dictionary defines duress as referring to threats, violence, constraints, or other action used to coerce someone into doing something against their will or better judgment. It is clear that the evidence did not rise to this standard and the Vice President did not purport to find that it did.

“The Vice President did not seek to fit the facts of this case into the legal definition of economic duress although she purported to be relying on Hennessy’s case. However, properly understood the ratio of that case is that in order to succeed on a claim of duress it must be shown that the payment made, or the contract entered into, was an involuntary act. It is clear that even on the evidence of the respondent it cannot be said that his agreement to the settlement was an involuntary act.”

The judge concluded that the settlement arrived at between the appellant and the respondent effective and therefore binding on both parties.

“I would therefore set aside the judgment of the Learned Vice President and thus any funds ordered to be paid by that judgment which exceeds that agreed in the settlement agreement between the parties falls away,” Evans added.