Edwin L O'Neal v Barbados Agricultural Management Company Ltd
| Jurisdiction | Barbados |
| Judge | Frederick Forde,Mr. Justice (ret'd) Christopher Blackman,Edward Bushell |
| Judgment Date | 19 August 2021 |
| Docket Number | Case: ERT/2019/61 |
| Year | 2021 |
| Court | Employment Rights Tribunal (Barbados) |
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/2019/61
Mr. Sean Lewis and Miss Dawn Agard, Attorneys-at-law for the Claimants.
Mr. Deighton Marshall, Industrial Relations Consultant for the Respondent.
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 Claimants were made redundant in December 2018.
The First Claimant was employed by the Respondent as a Farm Supervisor on May 5, 2009 and in January 2016 he became a Non Sugar Crops Unit Manager. In his own right, the First Claimant was active in the Sugar Industries Staff Association (SISA) and on January 29, 2016 he was elected President of SISA.
The Second Claimant was employed by the Respondent as a Farm Supervisor on March 1, 2000 and in August 2016 he was appointed a Farm Manager. During the period of his employment, he was a member of SISA.
The Third Claimant was employed by the Respondent as a Factory Process Supervisor on July 1, 1993 and on April 1, 2014 he was appointed Mechanical Workshop Supervisor. He was active in SISA, serving on the Association's Council during the period 2008–2016 as a floor member.
The Fourth Claimant was employed by the Respondent as a Farm Supervisor on March 2, 2009 and on August 1, 2016 he was appointed a Farm Manager. Like the Third Claimant, he also served on the Association's Council during the period 2016–2018 as a floor member.
The Respondent Company is wholly owned by the Government of Barbados and incorporated under the Companies Act, Cap 308 of the Laws of Barbados. It manages a number of sugar estates and other non-sugar farms and entities.
On October 26, 2018, Mr. Leslie Parris General Manager of the Respondent wrote the President of SISA as follows:
“Re: Consultation with the union
Following discussions and negotiations within the Social Partnership, The International Monetary Fund (IMF) and the other international financial institutions, the Government of Barbados, under the Barbados Economic Recovery and Transformation Programme (BERT) has taken the decision, as part of the rationalization and restructuring of the Barbados Agricultural Management Co. Ltd, to reduce its financial subvention/support to the Company by $10.0M – $12.0M in 2018 .
This decision, you will no doubt appreciate, will impact on the Company's overall operations in 2018/2019 as well as its ability to maintain current levels of staffing in both the Company's Agricultural and Factory operations .
In this regard and in accordance with collective bargaining protocols, the Company is notifying the Union of its intention to commence the consultation process with the Union as is required under the Social Partnership Protocols and under the provision of the ERA at the earliest opportunity.”
On October 30, 2018 Mr. Parris in a letter addressed to all BAMC Employees sought to determine how many employees would be interested in a voluntary separation package, on terms detailed in the said letter.
The Claimants, in their Written Submissions stated that by letter dated November 8, 2018 by SISA to the Respondent, SISA condemned the manner in which the Respondent handled the matter and sought a meeting with the Respondent for ‘meaningful dialogue.’
However, on November 15, 2018 Mr. Parris in a letter addressed to all BAMC Employees, withdrew the offer made by the letter of October 30, 2018, due to “severe financial constraints”. There was however a revised proposal for those employees who may have been interested in a voluntary separation package.
SISA by letter dated November 19, 2018 to the Respondent noted that up to that time, the Respondent had failed to consult with SISA with respect to the voluntary separation package offered to the employees.
On November 23, 2018 Mr. Parris wrote the Chief Labour Office as follows:
“Re: Redundancies”
Following discussions and negotiations within the Social Partnership, The International Monetary Fund (IMF) and the other international financial institutions, the Government of Barbados, under the Barbados Economic Recovery and Transformation Programme (BERT) has taken the decision, as part of the rationalization and restructuring of the Barbados Agricultural Management Co. Ltd, to reduce its financial subvention/support to the Company by $10.0M — $12.0M in 2018 .
This decision, you will no doubt appreciate, will impact on the Company's overall operations in 2018/2019 as well as its ability to maintain current levels of staffing in both the Company's Agricultural and Factory operations .
The proposed method of selecting these employees for redundancy will be based on Last in, First out, (LIFO) where possible. The company has offered voluntary separation to employees as well .
The Company wants to complete this process by 30 November 2018 and will begin the consultation process with the Unions (who have been informed by letter of 26 October 2018 of the restructuring process at the BAMC) and thereafter these details will be confirmed in writing to the affected employees .
Enclosed are details of numbers of the affected employees.”
The Respondent met with representatives of SISA for the first time on December 5, 2018 at which time a list of the employees, members of SISA, who were to be severed was presented for review and discussion.
On December 11, 2018 the Chief Labour Office acknowledged the Respondent's letter of November 23, 2018.
The Respondent's second meeting with SISA was held on December 12, 2018 at which a number of questions were posed. Those questions were answered by the Respondent in a letter dated December 14, 2018. On the issue of the list of employees to be retrenched, the First Claimant asserted for the record that:
“We will not be responding to any list until SISA is able to drill down in the Company.”
The Respondent's letter of December 14, 2018 to SISA essentially reiterated what had earlier been stated in the letter of October 26, 2018 to SISA. Some new information was provided to the effect that “The proposed method of selecting these employees scheduled for redundancy is based on the Last in, First out, (LIFO) wherever possible. In addition, employees have been given an option of voluntary separation and a total of sixty-two (62) persons which included seven (7) persons from SISA's membership have accepted this facility.” With respect to the request that the list of persons to be retrenched be reviewed, the Respondent advised that “The company stands ready to hear any written submissions in the first instance or otherwise that you may have regarding the list/schedule which was provided to the Association on Wednesday 5 th December 2018.
The company is therefore suggesting that a meeting be held on Wednesday 19 th December 2018 at 2:00 pm at our offices with a view of concluding this matter.”
The Respondent's third meeting with SISA was held on December 19, 2018. Mr. Parris in his Witness Statement noted that the chairman of the meeting referred to the letter of December 14, 2018 noted above, and asked for a response, but none was forthcoming. As a result, the Respondent came to the conclusion that the consultation process had come to an end.
On December 27, 2018 the Respondent wrote to the President of SISA. In that letter the Respondent referred to the three consultation meetings held on December 5, 12 and 19, and concluded the letter by stating: “The company wants to state that given its severe financial and time constraints, it has acted reasonably and practically in the consultation process and has satisfied all legal requirements in this process.
Accordingly, eleven (11) of the fourteen (14) persons selected for redundancy will be given their letters today, 27 th December, 2018 detailing their entitlements which will include Holiday Pay due, Notice Pay and Severance Pay. The remaining three persons will be issued with the same on their return to work.”
The Respondent by letter dated December 27, 2018 and headed Notification of Redundancy advised the four (4) Claimants that the date of termination of their employment would be December 31, 2018. The letter also gave details of payment in lieu of notice, outstanding vacation pay and the like.
By letter dated January 15, 2019 to the Chief Labour Officer, SISA in conformity with section 42 (2) of the Act, gave notice of the dispute with the Respondent and the termination of the employment of the four Claimants.
The Chief Labour Officer having been unable to resolve the complaints through conciliation, on December 11, 2019, in accordance with section 44 (1) of the Act, referred the several complaints to the Tribunal for determination and settlement.
The issue therefore for determination by the Tribunal is:
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(a) Whether the Respondent carried out consultations in accordance with section 31 (6) (a) of the Act or (b) whether there were special circumstances as per section 31 (6) (c) which rendered it not reasonably practicable to comply with the requirements of section 31 (6) (a) of the Act.
Section 31(1) (a) of the Act provides that the dismissal of an employee does not contravene the right conferred by section 27 not to be unfairly dismissed, if the reason for dismissal is that of redundancy. Section 29 (1) moreover provides that it is for the employer to show that dismissal by reason of...
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