The Court of Appeal has struck down a ruling that a construction company only hired “black faces” on a project to justify work permits.

While the Human Rights Commission found that Apex Construction Management Ltd had discriminated against Bermudian carpenter Pernell Grant on the grounds of his nationality — a decision upheld by the Supreme Court — the Court of Appeal found that the ruling was separate to the matter described in the complaint.

Mr Grant had complained that he was offered employment on less favourable terms than Polish and Canadian contract workers and was denied the opportunity to work overtime.

A tribunal formed under the Human Rights Act found that Mr Grant was not discriminated against due to being Bermudian and was denied overtime because he insisted on being paid one-and-a-half time base wage, while others received straight time.

However, the tribunal came to the conclusion that the respondents had “absolutely no intention of training or promoting Bermudians generally, or black Bermudians in particular” and the company only wanted “black faces in the hole”.

Appeals to the ruling were filed by the company and two other respondents — including Andrea Battiston, the company’s operations manager. However, the company was struck off the register before entering the compensation phase of proceedings.

Following a hearing in the Supreme Court, Chief Justice Ian Kawaley found that there were “imperfections” in the tribunal’s handling of the matter, but that there was no significant injustice, upholding the findings. But Mr Battiston brought the matter to the Court of Appeal, who in a judgment dated April 21 found that the tribunal had reached a conclusion separate from Mr Grant’s complaint, leaving the appellants at a disadvantage. In a written judgment, Appeal Judge Geoffrey Bell said: “In my view the tribunal reached a conclusion which did not deal with the terms of Mr Grant’s complaints, and did not indicate to Mr Battiston or his counsel at any stage of the proceedings that they were looking at matters other than in accordance with the terms of the complaints.

“Insofar as the tribunal then reached its conclusion without reference to the terms of the complaints, its decision could not properly be characterised as a finding that the complaints had been made out. And the findings the tribunal did make, albeit unhappily worded, were in respect of matters which were not the subject of Mr Grant’s complaints.

“These were more than legal technicalities, and there existed no basis upon which the Chief Justice could properly substitute a finding that there had been a breach of the Act.”

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