A fired Bahamas Power and Light (BPL) manager is entitled to damages over his unfair dismissal, Supreme Court Justice Ian Winder ruled.
Sean Miller, former manager of Performance, Fuels and Special Projects, sued the power company over his dismissal on September 18, 2017 for “gross misconduct”.
Winder determined that it was “unfair” that BPL failed to show Miller a forensic audit by Ernst & Young Global Limited (EY) into a scheme that defrauded the utility company out of more than $1.9 million during the company’s internal investigation.
BPL made the payments to a number of fraudulent and existing vendors.
Miller testified against the five men accused of perpetrating the scheme.
On June 3, Winder ruled, “BPL has placed considerable reliance on the EY report and what it sees as damning evidence by an independent investigation against Miller. Indeed, a considerable amount, if not the majority of BPL’s cross-examination of Miller, was focused on answering concerns and complaints raised in the EY report.
“The EY Hogfish Report, being such an important element of the investigation process, strikes me as unfair that Miller was not shown – even in the meeting of September 4, 2017 – those portions of the report which related to him, and which BPL was relying upon to investigate him.
“Having found in favor of Miller, I will make the simple declaration that Miller was terminated unjustly and, therefore, wrongfully. I will award damages for breach of contract of employment.”
Winder said that he would not order BPL to reinstate Miller. However, the judge said he would “order the appropriate award of damages be made”.
A hearing to assess the damages is set for July 16.
Miller’s lawsuit, filed by Howard Thompson, argued that BPL had violated the terms of the industrial agreement by its failure to inform Miller of the specifics of his “gross misconduct”.
Miller alleged that he didn’t know that his dismissal was connected to the fraudulent scheme until February 2019 when BPL entered a defense in his civil suit.
BPL suspended Miller on August 21, 2017 pending an investigation for misconduct.
His suspension came six days after EY issued its report regarding the $1.9 million fraud.
Immediately after he received the letter, Miller disputed the disciplinary action.
He wrote, “I am hereby requesting a written notice from BPL pursuant to Article 15.17 of the Industrial Agreement setting out the precise reasons leading up to the decision to discipline me.”
However, BPL never acknowledged or replied to the letter.
On September 4, 2017, BPL conducted an interview with Miller. Chequita Johnson, manager of compensation and benefits, and external legal counsel, led the interview.
Winder said that documents were shown to Miller for the first time. However, Miller was not allowed to have copies of the documents and the EY report was not shown to him.
A day after the meeting, BPL suspended Miller for another nine days.
Miller wrote asking to see the documents, which had been shown to him during the interview, “so that he could make adequate representation”, the ruling said.
Once again, BPL did not reply.
BPL fired Miller on September 18. His termination letter said, “We advise you that the company, as a result of investigations, has determined that you have committed major breaches.”
In defense, BPL argued that three of the fraudulent invoices bore Miller’s stamp and signature. BPL said the fraudulent stamped documents were put to Miller during the September 4 meeting and further investigations were conducted based on his responses.
BPL contended, “Based on its investigations, including the interview, the defendant formed the honest belief that the plaintiff was involved in the fraudulent scheme and that it was necessary to conclude the relationship of employment.”
On the other hand, Miller said that whenever he stamped and signed a document, he also included a written memorandum to his supervisor that explained the work carried out.
Miller said that others had access to the stamp and security personnel and janitors had keys to the office.
According to Miller, one of the questioned transactions related to barging services that were authorized by BPL.
The vendors who provided this service were RORO Company Limited and Bahamas Crane-Concrete & Fueling Tank CL.
He said that Bahamas Crane-Concrete & Fueling Tank CL sometimes shortened its name on documents to Bah Crane and Concrete or Bahamas Concrete & Crane.
Miller said the fraudulent invoice related to Bahamas Crane and Concrete Pumps. He said the stamp on that invoice was different from the stamp issued to him by BPL. He said there were two boxes around the words in the fraudulent stamp, while the stamp issued to him only had one box around the words.