Edmund Bushell v Barbados Light & Power Ltd (BL&P)

• Jurisdiction: Barbados
• Judge: Emerson Graham,Mrs Beverley Beckles,Mr Edward Bushell
• Judgment Date: 01 April 2021
• Docket Number: Case: ERT/2017/234
• Court: Employment Rights Tribunal (Barbados)

EMPLOYMENT RIGHTS TRIBUNAL

DISSENTING DECISION

Beverley P Beckles

Before:

Emerson Graham, Q.C. CHAIRMAN

Mr Edward Bushell MEMBER

Mrs Beverley Beckles MEMBER

Case: ERT/2017/234

Edmund Bushell

Claimant

and

Barbados Light & Power Limited (BL&P)

Respondent

APPEARANCES:

Mr John Collymore, ATTORNEY-AT-LAW—For the Claimant

Mr Michael Koeiman, ATTORNEY-AT-LAW—For the Respondent

1. INTRODUCTION:

1 The underlying facts and evidence in this case have been established and are not summarised separately in this dissenting opinion. Based on the evidence presented by the Claimant and the Respondent the outcome of Mr Bushell's claim of constructive unfair dismissal hinged on the determination of the following three (3) fundamental questions:

• 1.1. Was Mr Bushell Constructively Dismissed because of a serious or fundamental breach of his employment contract and was his position clearly indicated to his employer inter alia? OR

• 1.2. Did Mr Bushell resign from the BL&P to take up employment with another entity? OR

• 1.3. Did Mr Bushell abandon his job and was dismissed by the BL&P?

2. CONSTRUCTIVE UNFAIR DISMISSAL

2 An employee can claim constructive unfair dismissal by terminating his contract with or without notice because of the conduct of his employer in accordance with Section 26 (1) C of the Employment Rights Act, 2012–9 (ERA). But based on employment law precedent that employee has the major burden of proving that the employer's actions represented a serious or fundamental breach of his Contract of Employment – expressed or implied.

• 2.1. Mr Bushell's letter of November 14, 2014 was not a letter claiming constructive unfair dismissal nor was it a letter of resignation. In this letter, Mr Bushell simply asked the BL&P to add his name to the list of persons who did not wish to work under the new terms and conditions of service as a result of the introduction of flexible working hours, to be aware that he did not receive certain communications that would have allowed him to make an earlier decision, and to consider his request in time so that he could depart the company on severance by November 28, 2014. He further thanked the company for giving him the opportunity to work over the last 15 years and wished the company success in the future.

• 2.2. In his evidence Mr Bushell stated that “I complained Mr Clarke ( sic) who was in a supervisory position on Saturday (September) 6, 2014 for wetting me with a hose. I did not hear anything further until I was ready to proceed on vacation leave in November 2014. I was supposed to be issued with a warning letter. Mr. Jules did not serve me because he could not do so in the absence of a union delegate. I was taken aback by the development because I was the person who complained and up to this day I do not understand how I could be in the wrong for complaining. I do not know if anything was done to Mr. Clarke”. The letter of November 18, 2014 put into evidence by BL&P, is the warning letter.

• 2.3. Mr Bushell proceeded on vacation leave from December 02, 2014 to December 22, 2014. This was a recommended and subsequently approved request.

• 2.4. On December 8, 2014 while the Claimant was on approved vacation leave, he wrote to the Human Resource Manager and stated that he was constructively dismissed effective November 29, 2014 and offered the following reasons for his position:

  • 2.4.1. Mr Arthur Lewis, Generation Manager, informed him at a meeting on November 14, 2014 that the new ‘flexible work arrangement” would be implemented with effect from January 01, 2015.

  • 2.4.2. The new working hours would be disruptive to family life and he would have to weigh his options about continuing to work for the BL&P.

  • 2.4.3. He did not receive the revised offer in April, 2014 because he was on sick leave due to a vehicular accident.

  • 2.4.4. Mr Lewis told him that it was not too late for him to seek an accommodation of severance, but the request must be in writing. The request was made in writing on November 14, 2014 and he requested a separation date of November 28 2014. The Human Resource Advisor was notified of the request. At December 08, 2014 he did not receive a response in writing.

  • 2.4.5. He was placed in a difficult if not impossible situation to function on the job in safety and without fear of reprisal. The hierarchy was aware of a number of misunderstandings with a trainee supervisor. He was wet with a garden hose by this supervisor. He has had to exercise restraint in order to avoid physical confrontation.

  • 2.4.6. He was transferred from Seawell to Spring Garden to facilitate separation between the trainee supervisor and himself and he understood that this same supervisor was being assigned to supervise him. He felt that this impending action was insensitive and uncaring particularly since the supervisor would be appraising his work performance.

  • 2.4.7. The BL&P changed the Terms and Conditions of his employment to his detriment, was discourteous by not responding to his request to be severed and he was transferred into an environment which is stressful and hostile.

• 2.5. On December 29, 2014 the BL&P responded to Mr Bushell's letter of December 08, 2014 making the under mentioned assertions:

  • 2.5.1. The Claimant was on certified sick leave from April 11, 2014 until May 23, 2014, but the letter of March 04, 2014 outlining changes to his work arrangements and requested a response by March 17, 2014 indicating if he did not accept the new terms, was not responded to by the Claimant. Another letter was issued on April 16, 2014 to clarify certain issues, but the same offer remained and the letter of March 04, 2014 was not rescinded.

  • 2.5.2. The Claimant was a Union Delegate when he returned to work on May 26, 2014 and attended meetings with the Barbados Workers Union (BWU) and BL&P. He was aware that five employees opted to leave the company but the Claimant never indicated a desire to leave the company before the conclusion of the Collective Agreement on November 13, 2014.

  • 2.5.3. The BL&P acknowledged the letter of November 14, 2014 from Mr Bushell and informed that the request for voluntary separation was subject to consideration and approval by the Board of Directors and the next scheduled meeting of the Board was set for March, 2015.

  • 2.5.4. The Claimant was on vacation leave from December 02, 2014 to December 22, 2014 and the company expected him back on duty December 23, 2014. The Claimant was reminded that he did not submit supporting documentation in relation to his absence without leave

  • 2.5.5. The company has a right to deploy staff as it sees fit and that the Claimant's transfer to the Generation Department was in no way precipitated by any incident.

  • 2.5.6. The incidents the Claimant was involved in with the Trainee Supervisor were investigated and dealt with previously, but the latest incident would have been addressed on the Claimant's return to work on December 23, 2014.

  • 2.5.7. The Claimant's continued absence from work without reasonable excuse will be considered as an abandonment of employment effective from December 30, 2014 and the company will proceed accordingly.

3. DISCUSSION OF UNFAIR DISMISSAL

• 3.1. Prior admonishments or unfounded allegations of bad behaviour or any disciplinary proceedings that violated the principles of due process, fairness or item (d) of PART A of the FOURTH SCHEDULE of the ERA regarding the expunging of a written warning twelve months old or more from an employee's record, cannot be considered by the Tribunal as evidence against Mr Bushell.

• 3.2. Mr Bushell's request of November 14, 2014 seeking approval for severance was not made within the various deadline dates set by the company. However, the contract negotiations were still ongoing after the deadline dates and as late as July 02, 2014 clarifications were still being done, but employees were unreasonably expected to make a decision by April 24, 2014 to opt to remain with or leave the company, without adequate knowledge of the full extent of their new Collective Agreement. In fact, the witness for the company conceded in her testimony that negotiations were a “long way off from completion” and they continued well after the deadline date of April 24, 2014.

• 3.3. The option was for an employee to state whether he/she agree or did not agree “with the changes to terms and conditions as outlined” in the letter of April 16, 2014. Page 3 paragraph 2 of that letter also stated “All of the changes noted above are subject to final agreement between the Company and the BWU and your agreement to these changes confirms your willingness to abide by this final agreement between the two parties”. It further stated “your conditions of employment agreed between the BWU and the Company as amended will form part of your contract of employment” page 3 paragraph 3. It was unreasonable for the company to hold its employees to a deadline date before all material changes to the employment contract were fully negotiated and before the contract was agreed finally. Furthermore, none of the letters issued to the members of staff specifically stated that no late options would be entertained by the company. It was therefore not unreasonable for Mr Bushell to seek an accommodation after April 24, 2014 and expect a timely decision.

• 3.4. Mr Bushell made his request for separation on November 13, 2014 verbally to Mr Babooram, prior to the signing the Collective Agreement, and followed it up in writing on November 14, 2014, on the advice of a senior company employee (Mr Lewis), but Mr Bushell was later notified that the matter would be considered approximately four months later in March 2015 whilst the new terms and conditions of service would come into operation effective from January 01, 2015.

• 3.5. Mr Bushell had ample time to indicate whether he wanted to remain with the company or to apply for separation from the company and, at...