Anthony Herbert v Berger Paints Barbados Ltd

JudgeChristopher Blackman,Dr. Hartley Richards,Frederick Forde
Judgment Date11 March 2020
CourtEmployment Rights Tribunal (Barbados)
Docket NumberCase No. ERT/2017/044



Christopher Blackman Esq, GCM; Q.C Chairman

Dr. Hartley Richards Member

Frederick Forde, Esq. Member

Case No. ERT/2017/044

Anthony Herbert
Berger Paints Barbados Ltd.

Ms. Lesley Trotman, Attorney at law, with Mr. Dwaine Paul of the Barbados Workers Union for the Claimant.

Sir Elliott Mottley Q.C. with Ms. Kimberley Moe and Ms. Ava-Marissa Lee for the Respondent.


. This ruling is on a preliminary issue as to whether the Tribunal has jurisdiction to hear the claim for unfair dismissal advanced by Mr. Herbert (the Claimant) in the circumstance that he was terminated by Berger Paints Barbados Ltd. (the Respondent) on 10 th October 2014. Section 32 (2) of the Employment Rights Act, 2012–9 (the Act) requires that a complaint be made within 3 months of dismissal, unless it was not practicable. That date would have been 9 January, 2015. It was not until 11 th August 2015, the Barbados Workers Union (the BWU) made a complaint of unfair dismissal on behalf of the claimant, to the Chief Labour Officer.


. The Tribunal has adopted the salient facts on the matter from the Affidavits filed in this matter on June 26, 2018 by Marietta Alleyne, the Human Resources Director and Shawn Prescod, the Sales Manager on behalf of the Respondent, and that filed by the Claimant on May 10, 2019 in so far as they relate to the issue for determination. The Tribunal has not been concerned with the merits as to the fairness or otherwise, of the dismissal.


. Miss Alleyne deposed that she commenced her employment with the respondent on July 1, 2001 and that as part of her human resource duties and functions, she had access to the employee files of the Respondent, including that of the Claimant. As a consequence, she was privy to matters concerning the Claimant's commencement of employment with the Respondent, his conduct, the disciplinary hearing and eventual termination.


. The Claimant's employment with the Respondent began on July 27, 1988 as a Quality Control Supervisor. On January 1, 2010 he was appointed Technical Sales Representative and he was terminated from that position on October 10, 2014. Mr. Herbert at paragraph 23 of his Affidavit filed May 10, 2019 agreed that he had been terminated with immediate effect on October 10, 2014.


. On August 11, 2015 the Respondent received a copy of notification sent to the Chief Labour Officer by the BWU indicating the inability to resolve the matter at a domestic level and requesting the Chief Labour Officer to assist in the conciliation of the matter.


. At a hearing before the Tribunal on October 28, 2019, the parties were directed to file and serve Written Submissions as to whether the matter was filed out of time and whether the Tribunal had jurisdiction to hear the matter. On March 11, 2020 the parties were further directed to file and serve Written Submissions on what was to be considered the effective date of termination.


. Arising from the foregoing, the issues for the determination by the Tribunal are (1) the effective date of termination of the Claimant by the Respondent, and (2) whether it was not reasonably practicable for the complaint to be presented before the end of the 3 month period.


. In light of the Claimant's acknowledgement at paragraph 22 of his affidavit filed May 10, 2019, that he had been terminated with immediate effect on October 10, 2014, the only matter now for determination is whether it was not reasonably practicable for the complaint to be presented before the end of the 3 month period.


. Section 32 (2) of the Act provides that:

  • (2) The Tribunal shall not consider a complaint under subsection (1) unless the complaint is made to the Tribunal;

    • (a) Before the end of the period of 3 months beginning with the effective date of termination; or

    • (b) Within such period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of 3 months.


. Section 37 of the Interpretation Act, Cap. 1 states that:

“in an enactment passed or made after the 16th June, 1966, the expression “shall” shall be construed as imperative and the expression “may” as permissive and empowering,”


. Section 8 (3) of the Act further states that:

“A complaint shall be taken to have been made to the Tribunal on the date that it is presented to the Chief Labour Officer pursuant to section 42.”


. Section 42 of the Act, states that:

  • (1) where the employee believes that there is a dispute concerning an infringement of any right conferred on him by the Act, he may present a complaint to the Chief Labour Officer.

  • (2) A complaint may be made under this section by an employee, or a trade union or another representative group on behalf of the employee.”

The Claimant's Case

. By letter dated 31 January 2020 (hereinafter called The Letter) the BWU made a submission as to why the Tribunal should exercise its discretion under section 32 (2) (b) of the Act where the complaint had not been presented within the period of 3 months beginning with the effective date of termination.


. In the second paragraph on page 1 of the said Letter the following is stated:

“The Barbados Workers' Union as the accredited bargaining agent for employees of Berger Paints Limited was engaged on or around September 2014, by Mr. Anthony Herbert, Technical Sales Representative, to assist him in responding to allegations being levelled against him by the company.”


. Given the length of The Letter (5 pages) and its centrality to the claimant's case, and that it has been referred to in submissions filed by the respondent, the Tribunal attaches the letter as an Addendum to this Ruling.


. The essence of the Respondent's case is that the Claimant acting through his representative the BWU, was concerned with the pursuit of internal appeals, rather than an adherence to the provisions of the Employment Rights Act. This position seems to be supported by the following in the middle paragraph on page 3 of The Letter which states: “The above summary represents the attempts made by the Barbados Workers Union to resolve this matter, utilising the agreed grievance protocols outlined in the Collective Labour Agreement.”


. There is no dispute as to the chronology of events following the termination. These are detailed on pages 2 and 3 of The Letter, showing the exchange of correspondence starting on October 31, 2014, reference to meetings and finally culminating in the letter of August 11, 2015 referred to in paragraph 5 above.


. However, the Respondent disputes the assertion that the extensive delays were not the fault of the claimant, but rather the fault of the representative of the Respondent and the unforeseen delays in scheduling meetings. In that regard, Counsel for the Respondent cited Bodha v. Hampshire Area Health Authority [1982] ICR 200 at page 205 where Browne-Wilkinson J noted that “we do not think that the mere fact of a pending internal appeal, by itself, is sufficient to justify a finding of fact that it was not “reasonably practicable” to present a complaint to the industrial tribunal.”


. Counsel for the Respondent in his submissions, has contended that whereas on the last paragraph of page 3 of The Letter the Claimant alleged that he engaged the services of the Labour Department on or around late October or early November, 2014, there is no evidence to corroborate the allegation. Counsel further contended that pursuant to Section 42 (2) of the Act, that not only could the Claimant have made the approach to the Labour Department while negotiations where on going, the BWU, as a body with the legal and working knowledge of the statutory limitation, could also have filed the complaint within the prescribed three (3) month period to preserve the Claimant's interest.


in a decision given on May 25, 2010 in the case of Northamptonshire County Council v. Entwhistle [2010] IRLR 740, at paragraph 5 observed that there is a great deal of authority about the effect of the “not reasonably practicable” test and, in particular, about its application in circumstances where a Claimant consulted skilled advisers (a term which has...

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