Emerson Bascombe v Barbados Workers Union
| Jurisdiction | Barbados |
| Judge | Mr. Omari Drakes,Mr. John Williams,Mr Ulric Sealy |
| Judgment Date | 24 April 2018 |
| Court | Employment Rights Tribunal (Barbados) |
| Docket Number | Case: ERT/2014/083 |
EMPLOYMENT RIGHTS TRIBUNAL
Mr. Omari Drakes, Mr. John Williams, Mr Ulric Sealy
Case: ERT/2014/083
Sir Roy Trotman for the Claimant
Dr Hensley Sobers for the Respondent
This is a claim of unfair dismissal made pursuant to Section 32 (1) of the Employment Rights Act – 2012 (the “Employment Rights Act”) by Emerson Bascombe (the “Claimant”) against his former employer the Barbados Workers Union Cooperative Credit Union Limited (the “Respondent”) following the Claimant's dismissal on December 31, 2013.
The Respondent is in the business of providing credit union services and products.
The Claimant was hired by the Respondent as a Senior Loans Clerk on February 5, 2004. By way of letter dated July 12, 2007 the Claimant was offered the position of Loans Supervisor with effect from November 1, 2006.
The Claimant in his evidence made reference to certain acts by the Respondent that he believed were aimed at frustrating, embarrassing and undermining his authority. Claimant's employment with the Respondent came to an end on December 31, 2013. It was the Claimant's view that his dismissal was personal, malicious and contrived. During his testimony the Claimant appeared to be genuinely hurt by the actions taken by the Respondent; particularly so in light of his medical condition of which the Respondent was aware.
The Respondent's General Manager Ms Corrine Clarke testified on behalf of the Respondent. She indicated that the Respondent was subject to a review by the Financial Services Commission (“FSC”) who indicated that there was a need to implement a corporate governance program to address risks that the Respondent was exposed to in the financial services sector. Ms Clarke further testified that given this mandate, the Respondent sought to reduce the said risk by establishing the post of Credit Risk Manager. It was believed that the new post would “subsume and incorporate the former position of Loans Supervisor”. In cross-examination, the Claimant testified that he only became aware of the FSC review in December 2013 and was not aware that the FSC was emphasising risk management.
Ms Clarke's testimony was corroborated by extracts from the minutes of Board Meetings of the Respondent held on November 25, 2013, December 12, 2013 and December 27, 2013. The Tribunal sees no reason to disbelieve Ms Clarke or the evidence of the mandate from the FSC.
By letter dated December 31, 2013, the Respondent wrote to the Claimant advising him that
…effective December 31 st 2013, your position as Loans Supervisor within the organizational structure will be made redundant.
The letter also indicated that the Claimant's severance payment on termination would be the sum of Thirty Thousand Four Hundred and Sixty-Four Dollars and Fifty-Five Cents (BDS $30,464.55) representing a severance payment and pay in lieu of one month's notice. The Claimant was also to receive accrued vacation pay plus a gratuitous payment of a training grant equivalent to one month's salary.
The Claimant being dissatisfied with the circumstances of his dismissal claimed unfair dismissal against the Respondent.
The issues to be determined in this case are:
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(i) Has the Claimant satisfied section 27 of the Employment Rights Act;
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(ii) Did the Respondent satisfy its obligation under Section 29;
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(iii) What was the principal reason for dismissal; and
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(iv) Did the Respondent satisfy its obligation under to Section 31?
Section 27 of the Employment Rights Act states that:
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(1) An employee has the right not to be unfairly dismissed by his employer.
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(2) Subsection (1) has effect subject to the following provisions of this Part.
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(3) Subsection (1) does not apply to the dismissal of the employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination.
To the extent that the Claimant was first employed by the Respondent on February 5, 2004 and dismissed by the Respondent on December 31, 2013, there is no doubt that the Claimant was continuously employed for the requisite period of one year. In the circumstances the Tribunal finds that the Claimant has met the necessary requirements not to be unfairly dismissed pursuant to Section 27 of the Employment Rights Act.
Having met the requirements of Section 27 of the Employment Rights Act, the burden shifts to the employer to show that the dismissal was fair. Section 29 of the Employment Rights Act states that:
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(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show
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(a) the reason, or, if more than one, the principal reason, for the dismissal; and
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(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
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(2) An employer shall have the right to dismiss an employee for a reason which falls within this subsection if it
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(a) relates to the capability of the employee to perform work of the kind which he was employed by the employer to do;
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(b) relates to the conduct of the employee;
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(c) is that the employee was redundant, but subject to section 31; or
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(d) is that the employee could not continue to work in the position which he held without contravention, either on his part or on that of his employer, of a duty or restriction imposed by law.
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(3) …
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(4) Where the employer has fulfilled the requirements of subsection (1), the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether
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(a) The employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and
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(b) The employer complied with the rules set out in Part A of the Fourth Schedule.
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It therefore rests with the Tribunal to determine what was the primary reason for the Claimant's dismissal.
The reason stated for the Claimant's dismissal in the termination letter dated December 31, 2013 was redundancy. The Tribunal must now consider if the Respondent can successfully show that this was in fact the reason or principal reason for dismissing the Claimant.
Section 31 of the Employment Rights Act states that:
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(1) A dismissal of an employee does not contravene the right conferred on him by section 27 where
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(a) The reason for his dismissal is that he was redundant; and
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(b) the requirements of subsections (4), (5) and (6) were complied with in relation to his dismissal for redundancy.
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(2) An employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to the fact that
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(a) his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased, or intends to cease, to carry on that business in the place where the employee was so employed; or
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(b) the requirements of that business for employees to carry out work of a particular kind, or for employees to carry our work of a particular kind in the place where the employee was so employed, have ceased or diminished or are expected to cease or diminish.
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(3) In subsection (2), “cease” means cease either permanently or temporarily and from whatever cause, and “diminish” has a corresponding meaning.
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(4) Where it is contemplated that the workforce of the business of an employer will be reduced by 10 per cent or any other significant number, before dismissing an employee, the employer shall
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(a) Carry out the consultations required by subsection 6 (b); and
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(b) Supply the employee or the trade union recognised for the purpose of bargaining on behalf of the employee (if there is one) and the Chief Labour Officer with a written statement of the reasons for and other particulars of, the dismissal.
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(5) The statement referred to in subsection 4 (b) shall contain particulars of
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(a) the facts referred to in subsection (2) relevant to the dismissal; and
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(b) the number and categories of affected employees and the period during which their dismissals are likely to be carried out, where any employees, in addition to the employee in question, are affected by those facts.
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(6) The consultations referred to in subsection (4) (a) are consultations with the affected employees or their representative, being consultations conducted in accordance with the following requirements:
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(a) The consultations shall commence not later than 6 weeks before any of the affected employees is dismissed and shall be completed within a reasonable time;
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(b) The consultations shall be in respect of
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(i) the proposed method of selecting the employees who are to be dismissed;
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(ii) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including...
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