Judge says the current BPSU president was "evasive or intentionally abstruse" while giving evidence.
NASSAU, BAHAMAS — Prominent trade unionist John Pinder has experienced a partial victory in his legal pursuit of accrued vacation pay against the Bahamas Public Services Union (BPSU), which he led for 15 years, with a judge deciding against granting the entire $71,000 that he sought.
In his judgment, Justice Loren Klein stated that he was not satisfied that Pinder, who served as President of the BPSU for five consecutive three-year terms between 2002 and 2017, had made out his claim that the Union had agreed to pay him $71,000 for outstanding vacation leave.
The BPSU is one of the largest trade unions in the country and is recognized by the government as the bargaining agent for civil servants employed by the government and various government agencies.
"I do find, however, that the plaintiff is entitled to be paid the sums for accrued vacation entitlement from May 10, 2013, to the end of his contract in 2017, subject to any deductions for leave taken or cashed in during that period. I will also order that the statutory interest of 6.25 percent be paid on the amount found due from the date of judgment until payment," said Justice Klein.
However, based on the materials before the Court, Klein also said that it was impossible to quantify the sum due to Pinder because there is evidence that he either cashed in or took some of his leave during the above period. Justice Klein also noted that Pinder did not seek an accounting to support his claim, noting that justice cannot be done in the case, nor the Court's decision given effect, unless an accounting is done. The judge expressed hope that the parties would be able to cooperate and come to an agreement on the amount due without a formal application before the Court.
According to the evidence presented at the trial, Pinder, who was entitled to five weeks of annual vacation leave, only used one year's entitlement due to organizational obligations. Both parties agreed on vacation pay of around $71,000, but the Union repeatedly refused to pay, claiming that Pinder had waived his rights through delay and acquiescence. The defense also cited the Limitation Act, stating any accrued vacation pay before May 10, 2013, is statute-barred.
The Union's sole witness was the current President of the BPSU, Kimsley Ferguson, whose presidency commenced in September 2017. Ferguson indicated that he served as the Vice-President of the Union during the presidency of Mr Pinder and that at no time before demitting office was the Board informed by Mr Pinder that he was owed funds for his accrued vacation entitlements.
"He claims, therefore, to have been taken by surprise by the plaintiff's claim stretching back well over a decade. He further stated that it was open to the plaintiff to take his vacation leave during the periods or to have applied for payment at the end of each contractual period to ensure that all accounts between himself and the BPSU were settled before demitting office. Mr Ferguson averred that there was no time when the plaintiff sought vacation leave or payment instead of vacation that it was denied. In the circumstances, he contended that the plaintiff waived any claim against the Union and acquiesced over many years and election cycles to the non-payment of his accrued vacation," Justice Klein noted. Ferguson stated that he never agreed that Pinder was entitled to any outstanding vacation pay or that the only issue to be resolved was the sum of the arrears.
The judge noted that, generally, he did not find Ferguson to be an impressive witness.
"It seemed to me that many of his answers were evasive or intentionally abstruse, prompting the Court to intervene on more than one occasion to try to elicit answers to questions that he should have had no difficulty answering as President. His evidence concerning several important details is confusing and contradictory."
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