A Supreme Court judge has ruled that the government unfairly terminated former General Manager of The Bahamas Agricultural and Industrial Corporation Troi Ferguson in 2004 and ordered BAIC to properly compensate him as well as pay costs in the matter.
Justice Vera Watkins agreed that the government through BAIC acted “unfairly and arbitrarily towards [Mr. Ferguson]” and she said that his right to be treated fairly and with due process and in accordance with the Constitution and the rules of natural justice was breached.
But Justice Watkins denied a request by Mr. Ferguson’s attorney, Obie Ferguson, to have him reinstated, saying the likely effects of such a move “would be grave disharmony and disruption of [BAIC].”
She said damages ought to be based on the remuneration that [Mr. Ferguson] would have been entitled to during the notice period, had he been given proper notice and remained at work during that period, together with any benefits accrued.
The judge said that six months’ pay as compensation in lieu of notice of dismissal is reasonable.
“A period of six months would have been a reasonable amount of time for [Mr. Ferguson] to put his affairs in order to secure employment elsewhere,” the ruling states.
She assessed compensation at $31,500, representing six months’ salary; and $3,500, representing duty allowance over a period of six months, which she ordered the government to pay with interest.
Justice Watkins also ordered the government to pay all vacation pay, if any, accrued as of August 30, 2004, and all funds due from any pension plan or other plans provided that Mr. Ferguson is so entitled under the terms of the particular plan.
The ruling contains correspondence between Mr. Ferguson and senior officials of the corporation.
In a termination letter to the former general manager on August 30, 2004, BAIC Chairman Michael Halkitis informed Mr. Ferguson that the corporation had terminated his employment without further inquiry “due to the conduct which the board believes constitutes disregard for authority, gross misconduct and/or negligence on your part while serving as general manager to the corporation.”
Mr. Halkitis said in that letter that the board had found that Mr. Ferguson had authorized or arranged for expenditure without proper approval from the board; failed to bring unapproved salary increases including his own to the knowledge of the board, knowing full well the board did not approve the same; and refused to meet the board concerning his terms of employment.
The chairman also requested Mr. Ferguson to immediately hand over assets of the corporation, which included a vehicle and cellular telephone.
The letter from Mr. Halkitis came just over a year after former BAIC Executive Chairman Sidney Stubbs had written to Mr. Ferguson informing him that “due to your performance in the post of general manager, the Bahamas Agricultural and Industrial Corporation has agreed to realign your personal emoluments comparable to that of the post effective immediately.”
Mr. Stubbs informed that Mr. Ferguson would be paid a salary of $63,000 per annum and a duty allowance of $7,000 per annum.
But the following April – that’s before the actual termination letter – Mr. Halkitis wrote to Mr. Ferguson telling him that, “The Board of the Bahamas Agricultural and Industrial Corporation is in the process of conducting a comprehensive review of the operational policies, procedures and practices within the corporation.
“As part of this exercise, an external audit of the operations of the corporation by Deloitte and Touche has been commissioned. Please find herewith a copy of the final report. In pursuance of the foregoing and in the interest of maintaining balance in the process, the board has taken the decision to place you on administrative leave for a period of 60 days immediately.”
In June 2005, Mr. Halkitis wrote Mr. Ferguson another letter stating, “I am also to advise that the board has accepted your offer to refund the difference between the salary and allowance the board approved on your appointment to the acting general manager post ($51,000 per annum) and the salary and benefits which you indicated you are receiving without the board’s approval ($70,000 per annum).”
But Mr. Ferguson wrote back, stating that at no time was he appointed “acting” general manager and at no time did he agree to refund any monies.
“Your first letter to [me] indicated that the request for my leave of absence was based on creating a balance for the comprehensive review of the audit,” he wrote to Mr. Halkitis. “Nowhere was it mentioned that my status with the corporation was at issue and on what basis.
“I challenge you to produce a document with my signature as empirical evidence that any such offer was made by [me] to refund monies to BAIC. Why would the board ask [me] to resign at the June 2 meeting if any offer to refund monies was made in good faith?”
Justice Watkins said that BAIC counsel conceded “and rightfully so that [Mr. Ferguson] was wrongfully dismissed.”
While Mr. Ferguson’s attorney had asked for an order directing BAIC to reinstate him, counsel for the corporation said that, “there has been a break down in the employment relationship, in that there is the absence of mutual trust and confidence;
“That essential duties of the position has been assumed and carried out by another and to reinstate [Mr. Ferguson] would result in upheaval of the current person employed and a disruption in the efficient running of [BAIC].”
BAIC also asserted that for all intents and purposes, reinstatement is impractical as BAIC has determined that it is no longer desirable to have [Mr. Ferguson] as an employee.
It was a far cry from the comments about Mr. Ferguson that had been made by board members at a meeting in February 2003.
One director noted that “prominent public and private sector officials sung high praises in respect to Mr. Ferguson’s professionalism and work ethics.”
Another said he had heard great things about Mr. Ferguson and was impressed with what he had seen thus far; while another director said he was confident that Mr. Ferguson was the right man for the job.
The judge said the fact that Mr. Ferguson was general manager did not place an onus on him to prove that any salary increase communicated to him through the proper channel was duly approved by the board.
While Mr. Halkitis had argued that the letter sent to Mr. Ferguson by Mr. Stubbs regarding his salary of $63,000 was void, the judge said, “there was nothing to suggest that the executive chairman was not duly authorized to communicate the increases of the kind indicated in the mentioned letter.”
Mr. Ferguson was employed by BAIC for 10 years and two months.
By: Candia Dames, The Bahama Journal
