Alfred Branch v Sandy Lane Hotel Company Ltd
| Jurisdiction | Barbados |
| Judge | Mr. Justice (ret'd) Christopher Blackman, GCM,Deighton Marshall, Esq.,Frederick Forde, Esq. |
| Judgment Date | 08 September 2022 |
| Docket Number | ERT/2015/128 |
| Court | Employment Rights Tribunal (Barbados) |
The Hon Mr. Justice (ret'd) Christopher Blackman, GCM Chairman
Deighton Marshall, Esq. Member
Frederick Forde, Esq. GCM Member
ERT/2015/128
EMPLOYMENT RIGHTS TRIBUNAL
Ms. Rhea Cheltenham and Ms. Yasmin Brewster, Attorneys-at-Law For the Claimant
Mr. Michael Koieman, Attorney-at-Law for the Respondent.
Mr. Branch's claim of unfair dismissal against the Respondent arose from a letter he had written to the General Manager of the Respondent Company on January 27, 2014. Thereafter, he failed or was reluctant to answer the Human Resources staff as well as the Chief of Security of the Respondent Company in a manner or use of language that they thought appropriate, at the disciplinary hearing held on February 4, 2014. As a consequence he was summarily dismissed.
The facts of this matter have been taken from the respective Witness Statements of the Claimant and Mrs. Winifred Williams, former Assistant Director Human Resources of the Respondent, and the several exhibits attached to those Witness Statements, both of whom gave sworn evidence and were cross-examined. The unchallenged witness statements of David Rouse, Chief of Security and Randall Wilkie General Manager of the Respondent have also been relied on for essential background information.
The Claimant started work with the Respondent, an internationally recognised hotel, on December 14, 2002. In late 2005, he was transferred to the Accommodation Services Division of the hotel as Laundry Supervisor, a position held until his termination in February 2014.
On July 10, 2010 the Claimant was issued with a written warning citing ‘Poor standard of work’. The Claimant considered that the warning was not merited in light of his knowledge of the events which allegedly gave rise to the warning, and moreover, the written warning contravened the disciplinary code of the Respondent, detailed in a handbook called the Champion Rules of the Game (the Rules) which stipulated at page 96, section 2, that a first offence for poor standard of work is dealt with by way of a verbal warning.
At paragraph 5 of the Claimant's Witness Statement he stated: “Prior to the written warning dated 12th July, 2010 I never received a verbal warning from my employer or any superior regarding a poor standard of work.”
On July 19, 2010 the Claimant wrote the Respondent's Director of Human Resources outlining his reasons why he considered the decision to issue a written warning, to be unmerited. As a consequence, the Claimant met with Winifred Williams, then the Assistant Director Human Resources of the Respondent on August 20, 2010 and others. As stated in paragraph 8 of his Witness Statement, “I was unsatisfied with the outcome of the meeting. As a result, I reached out to the Barbados Workers' Union (“BWU”) seeking the intervention of my labour representative to assist in resolving the matter, on my behalf”
The Tribunal reproduces paragraphs 9 to 13 of the Claimant's Witness Statement, as essential background to what later transpired.
“ 9. Sandy Lane Hotel denied me any further hearing on the matter. Furthermore, I was informed in the Human Resources department that I have no right of union representation by virtue of my position as Laundry Supervisor.
10. I have become aware of a Memorandum of Agreement between the Barbados Hotel and Tourism Association (“BHTA”) and the BWU, more commonly known as the Collective Agreement On page 6 of the Collective Agreement, under PART III - Definitions, the definition of “supervisory” is as follows:
“Those employees whose principal duties are the supervision of the work of other employees. It DOES NOT, however INCLUDE those employees in supervisory positions who, in addition to supervising the work of others, have the right to hire and fire or to effectively recommend the hiring or firing of the employees whom they supervise.”
11. At no time the hiring or firing of employees formed a part of my duties as Laundry Supervisor. During my entire employment at Sandy Lane Hotel, I never had any authority to make decisions regarding the hiring or firing of staff members. I know Sandy Lane Hotel to have a strict hiring and firing protocol which is done through the Human Resources Department.
12. As a result of the length of my time as an employee of Sandy Lane Hotel, I had several conversations of varying topics with my colleagues over the years. As a result of a certain conversation with a colleague, I had knowledge that in the months prior to the issuing of the Written Warning to me, a fellow Laundry Supervisor was afforded a member of the BWU to represent his interests in relation to a particular workplace concern that colleague had at the time.
13. By letter dated 25th August, 2010, Winifred Williams wrote to the BWU informing it that Sandy Lane Hotel could not consent to meeting with the Union regarding my Written Warning on the basis, amongst other things, that I held a supervisory position having the ability to hire and fire or to effectively recommend the hiring or firing of employees whom I supervised.”
The critical parts of the letter to Mr. Le Vere Richards of the BWU, dated 25 th August, 2010, signed by Mrs Winifred Williams,, identified as exhibit “AB 6” to her witness statement reads as follows: “As mentioned to Ms Greene, we are unable to convene this meeting with you for the following reasons:
1. Mr. Alfred Branch is employed in a supervisory position. He supervises the work of others and has the right to hire and fire or to effectively recommend the hiring or firing of the employees whom he supervises as outlined on page 2 of the BHTA/BWU Agreement. 2. In addition, according to our records Mr Branch's membership is not one that is recognised by the Company as a member of the Barbados Workers' Union.
….Please be guided accordingly”
As the meetings which were held over several months with the Chief Labour Officer, the Respondent Company and BWU to discuss the written warning issue as well as BWU representation, failed to resolve or provide the Claimant with “satisfaction”, Mr. Branch pursued other approaches. These included conversations with Yvette Browne, the Human Resource Manager of the Respondent Company and Randall Wilkie the General Manager. It seems that both Ms. Browne and Mr. Wilkie told the Claimant that the 2010 incident and the ensuing warning letter had occurred “too long ago” for them to take any remedial action.
As a result of the conversation with Mr. Wilkie, the Claimant was however, reminded that he could appeal or refer it to the Chairman as a former Chief Executive, Michael Pownall had urged in a memorandum sent to all employees about any actions which might publicly affect the Company's good name. That memorandum dated 8 February 2008, ended by stating: “I wish to reiterate earlier sentiments of the Chairman that if anyone has concerns that they feel are not being dealt with, the internal procedures must firstly be followed after which the Director of Finance; myself and the Chairman are always available to resolve.”
The Claimant wrote to Mr. Wilkie on 27 th January, 2014 for the purpose of confirming the details of the earlier meeting and the suggested course of action. The letter of 27 th January, 2014 ended with these words: “Now that I have exhausted every amicable effort in the grievance process, please be informed that I intend to entertain the chairman's plea to make him last resort before taking the good name of Sandy Lane Hotel into disrepute”
The General Manager referred the letter to the Human Resources Department for action as a result of the tone of the said letter (emphasis added) in particular the statements that he had exhausted every amicable effort in the grievance process” and the intention “to entertain the chairman's plea to make him last resort before taking the good name of Sandy Lane Hotel into disrepute.”
Significantly, the witness statements of Mr. Wilkie and Mr. Rouse which mentioned that “The procedure for appealing or referring matters to the Chairman is that the employee contacts the Human Resources Department of the Respondent in order to arrange a meeting with or to speak to the Chairman regarding matters of this nature” did not advise whether the Claimant had at any time being advised of how he should initiate the process. On Mr. Wilkie's own admission, he simply told the Claimant that he should write to the Chairman.
On 31 st January, 2014 the Claimant was summoned to attend a disciplinary meeting on February 4, 2014 to discuss the letter of 27 th January, 2014 which had ended with these words; “ Now that I have exhausted every amicable effort in the grievance process, please be informed that i intend to entertain the chairman's plea to make him last resort before taking the good name of Sandy Lane Hotel into disrepute.” The Notice of the disciplinary meeting stated under the rubric The Infractions “A statement by an employee to take the good name of Sandy Lane Hotel into disrepute in the context of your letter is in contravention of the basic standards in the Rules of the Game, the Code of Ethics and goes to the root of any contract of employment requiring a relationship of trust between the parties”
At paragraph 14 of his Witness Statement, the Claimant stated that at the start of the hearing on February 4, 2014 he was told that nothing regarding the written warning given in 2010 or the issue of BWU representation would be discussed. The hearing was for the sole purpose of discussing the letter of January 27, 2014 written to Randall Wilkie.
Mr. Rouse's Witness Statement dated November 9, 2015 listed the seven (7) other persons who were present at the hearing on February 4, 2014. These included Mr. Therold Fields an attorney-at-law and as a ‘friend’ of the...
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