Dr. Orville Wickham v Barbados Agricultural Management Company Ltd

• Jurisdiction: Barbados
• Judge: Mr. Justice (ret'd) Christopher Blackman,Edward Bushell,Frederick Forde
• Judgment Date: 20 August 2021
• Court: Employment Rights Tribunal (Barbados)
• Docket Number: Case: ERT/2020/020

EMPLOYMENT RIGHTS TRIBUNAL

Before:

The Hon. Mr. Justice (ret'd) Christopher Blackman GCM; Q.C Chairman

Edward Bushell, Esq. Member

Frederick Forde, Esq. GCM Member

Case: ERT/2020/020

Dr. Orville Wickham

Claimant

and

Barbados Agricultural Management Co. Ltd.

Respondent

APPEARANCES:

Miss Honor Chase, Attorney at law for the Claimant

Mr. Deighton Marshall, Industrial Relations Consultant for the Respondent

DECISION

1 The issue for determination in this matter is whether there was compliance by the Respondent with the provisions of Section 31 of the Employment Rights Act (the Act) when the Claimant was made redundant in December 2018.

BACKGROUND

2 . The Claimant was employed by the Respondent on March 1, 2006 as Agricultural Manager and Head of the Agricultural department. By letter dated December 27, 2018 he was terminated by the Respondent effective December 31, 2018. The reason given for the termination was that the Respondent had been directed by the Ministry of the Civil Service and the Ministry of Agriculture and Food Security to “ achieve greater efficiencies in its operations by way of restructuring …as a consequence of the directive to achieve greater efficiencies the Company's operations will diminish, and your employment will be terminated.”

3 The Claimant asserts that he was not a member of a union, and further that he was not consulted with by the Respondent as an affected employee as provided for in section 31(4) (b) and 31 (6) of the Act. The Claimant acknowledged that he attended a Heads of Department meeting on October 18, 2018 when he was asked to provide the Human Resources Department with a full list of the positions and number of employees to be laid off, and that as such Head, he made recommendations regarding the retrenchment exercise for his department. In his evidence to the Tribunal, the Claimant stated that he provided to the Human Resources Department, the names of persons whom he considered should be retained to keep the Respondent viable. He said that the position of Agricultural Manager was included on that list, not the name of the person who held the post.

4 The Claimant conceded that by implication, the names of those persons not included in the list which he had prepared, could be considered as the names he thought may be retrenched or made redundant. Both in his Witness Statement and evidence in chief, the Claimant categorically stated that at no time during his attendance at meetings with the management of the Respondent Company was he informed that he too may be dismissed and/or that his post will be made redundant. The Claimant in his Third Witness Statement dated August 16, 2021 noted that he was not invited to the SISA meetings on December 5, 12 and 19, 2018 and that he was unaware that his name had been included in the list of persons to be made redundant. The Claimant further noted that SISA was not obligated to inform him that his name was on a list.

5 Mr. Leslie Parris, who filed a Witness Statement on behalf of the Respondent and in his own evidence in chief, said that he did not tell the Claimant that he will be made redundant. He further stated under cross-examination that the list submitted by the Claimant had a shortfall of over one million dollars in the expenditure to be cut, but that he had not discussed this with the Claimant nor indeed had he any meetings with the Claimant on what had been submitted.

6 Mr. Parris agreed with Counsel for the Claimant that Dr. Wickham had never attended meetings which the Respondent held with the Sugar Industries Staff Association (SISA). When asked who had included the Claimant's name in the list given to SISA on December 5, 2018, Mr. Parris replied that that decision had been taken by those senior to him. However, he justified the inclusion of the Claimant's name in the list passed to SISA on the basis that the Claimant was ‘a beneficiary’ of any negotiated settlements with the union, and consequently it was appropriate that the action which had been taken, had been done.

7 Mr. Deighton Marshall, the Industrial Relations Consultant for the Respondent, in an amended Skeletal Argument (the Argument) on behalf of the Respondent dated August 9, 2021 posed the question at 1.3 of the Argument “ Can the trade union representatives be the appropriate representatives for collective consultation purposes where the affected employees are not union members?” Mr. Marshall answered in this manner: “Good industrial relations practices say yes. In fact, for further guidance on what has been the practice and law in UK, we can be guided by Section 188 (1B) of the Trade Union and Labour Relations (Consolidation) Act 1992.” Further on, in the Argument at paragraph 1.3 c there is the statement “…in order to further comply with the consultation process and good industrial relations practice, a copy of the list of persons to be made redundant included the Claimant Dr. Wickham. This list was given to Sugar Industries Staff Association (SISA) at the first meeting with the Association on 5 December 2018.”

THE LAW

8 The Caribbean Court of Justice (CCJ) in its seminal decision in Chefette Restaurants Limited v. Orlando Harris [2020] CCJ 6 (AJ) (BB) observed at paragraph 45 that “ Whatever may be the position in Antigua and Barbuda, neither the Polkey principle, nor the ‘band of reasonable responses’ test associated with Whitbread, has any place in relation to the procedural requirements for dismissal under the ERA of Barbados. Those procedures are mandated by the Parliament of Barbados in the ERA which it adopted in 2012 to ‘to make new provision for the rights of employed persons and for related matters.’

9 Whereas the issues in Chefette focused on conduct, The Tribunal is of the view that the foregoing statement is applicable to the entirety of the ERA, and in the context of the instant matter, the obligation to consult within the prescribed statutory parameters is paramount. A deviation from the legislative framework for consultation, renders a decision untenable. Against that premise, the Tribunal firmly dismisses the...