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Company ‘discriminated against Bermudian’

The Supreme Court has upheld a finding that a construction company only hired “black faces” to justify requests for work permits.

In a 2012 ruling, the Human Rights Commission found that Apex Construction Management Limited had discriminated against Bermudian carpenter Pernell Grant on the grounds of his nationality.

Appeals were filed by the company and two other respondents — Andrea Battiston, the company's operations manager, and Kevin Mason, the site superintendent — however, the court heard the company was struck off the register before entering the compensation phase of proceedings.

During the initial hearings, Mr Grant complained that the respondents offered him employment on terms less favourable than those offered to Polish and Canadian contract workers. He further alleged that he was denied the opportunity to work overtime and suffered reprisals based on staged or false complaints.

Mr Battiston was said to be directly involved in hiring and managing employees while, according to Mr Grant, Mr Mason was on occasion responsible for allocating overtime.

In a 15-page ruling, a Board of Inquiry stated: “The respondents had absolutely no intention of training or promoting Bermudians generally, or black Bermudians in particular.

“We are under no doubt at all that the respondents wanted ‘black faces in the hole', that is black workers on the site in order to support their claims for work permits for contract workers.”

However, the board found that Mr Grant's complaints about not being given overtime opportunities may have been caused by his insistence on being paid one-and-a-half times the base wage for work beyond 40 hours while other workers received “straight time”.

In a judgment issued on Tuesday in the appeal by Mr Battiston, the Chief Justice Ian Kawaley found that while Mr Battiston had a central role in the case, it was unclear on what basis Mr Mason could have acted in a discriminatory manner in any systemic sense. He added that the board should have distinguished his position from that of the company and Mr Battiston.

And while the Chief Justice found other “imperfections” in the board's handling of the matter, he wrote that the technical errors discovered caused “no substantial injustice”.

“The board found that discrimination was proved; not on the primary pay-related grounds (which were not made out), but on the subsidiary ground that black Bermudian workers were hired as a low-grade employee class with no promotion prospects and with a view to obtaining work permits for foreign workers to do the ‘real work',” the judgment stated.

“It is almost always possible to find fault with a decision rendered by a fact-finding tribunal. In the present case this court is satisfied that no substantial injustice flowed from the decision of the board in the course of the hearing to focus on the ancillary non-pay related discrimination issues which were dealt with in evidence and any imperfections of expression in the way the crucial conclusory findings were recorded in the board's decision.”

Dr Justice Kawaley concluded: “The board bemoaned the fact that the parties were not prepared to proceed immediately to the compensation phase. This anxiety was propitious. The three respondents to the complaints all filed appeals which they did not pursue for two years until the respondent applied to strike them out.

“The respondent's corporate employer, the company, had by then been permitted by its owners to be struck off the register.

“They have, apparently, left a former senior employee to ‘carry the can' on his own.

“Hindsight suggests that tribunals should insist that when complaints are proved the relief stage is dealt with as soon as possible thereafter before any appeal rights in respect of liability are pursued.”

It is The Royal Gazette's policy not to allow comments on stories regarding court cases. As we are legally liable for any slanderous or defamatory comments made on our website, this move is for our protection as well as that of our readers.

Ruling issued: by Chief Justice Ian Kawaley (File photograph by Akil Simmons)

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Published June 02, 2016 at 9:00 am (Updated June 02, 2016 at 7:47 am)

Company ‘discriminated against Bermudian’

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