Jasmine Payne v Barbados Vocational Training Board
| Jurisdiction | Barbados |
| Judge | Mr. Omari Drakes,Mr. Frederick Forde,Dr. Hartley Richards |
| Judgment Date | 08 August 2017 |
| Court | Employment Rights Tribunal (Barbados) |
| Docket Number | Case: ERT/2014/033 |
EMPLOYMENT RIGHTS TRIBUNAL
Mr. Omari Drakes, Mr. Frederick Forde, Dr. Hartley Richards
Case: ERT/2014/033
Ms Tricia Watson for the Claimant
Mr. Vincent Watson 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 Jasmine Payne (the “Claimant”) against her former employer the Barbados Vocational Training Board (the “Respondent”) following the Claimant's dismissal on October 31, 2013.
The Claimant was employed by the Respondent pursuant to two separate fixed term contracts. The said fixed term contracts were for the periods November 1, 2011 to October 31, 2012 and November 1, 2012 to October 31, 2013.
The Respondent failed to renew the Claimant's contract after October 31, 2013. The failure to renew the Claimant's contract amounts to a dismissal. The Claimant was therefore dismissed by the Respondent on October 31, 2013.
The Respondent relied on not less than seven (7) reasons for its decision not to renew the Claimant's fixed term contract. Yet, the Respondent failed to properly establish the principal reason for its decision not to renew the Claimant's fixed term contract. As a result of the Respondent's failure to properly establish the principal reason for its decision not to renew the Claimant's fixed term contract, it was left to the Tribunal to establish the said principal reason. The Tribunal finds that the principal reason for the Claimant's dismissal was as a result of a clash of personalities.
Tribunal further finds that this clash of personalities was not of a kind such as to justify the Respondent's decision not to renew the Claimant's fixed term contract. The Claimant was therefore unfairly dismissed by the Respondent.
The Claimant, who was employed by the Respondent as Public Relations/Marketing Officer claims that she was unfairly dismissed by the Respondent and seeks relief. The Respondent contended that it had just cause not to renew the Claimant's contract and was also of the view that any procedural failings by the Respondent could be remedied with nominal damages.
The issues for the Tribunal to determine were:
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a. Did the Claimant have a right not to be unfairly dismissed?
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b. What was the effect of the Respondent's failure to renew the Claimant's contract after October 31, 2013?
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c. Was the Claimant unfairly dismissed?
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d. What was the principal reason for the Respondent's failure to renew the Claimant's contract after October 31, 2013?
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e. If the Claimant was unfairly dismissed, what is the appropriate remedy?
Pursuant to section 27 of the Employment Rights Act 2012 – 9 (the “Act”):
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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 an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination.
The evidence of the Claimant (Exhibits 1) and the Respondent (Exhibit HT 6) shows that the Claimant was engaged by the Respondent in the role of Public Relations/Marketing Officer on or about November 1, 2011 pursuant to the terms outlined in an “Offer of Temporary Appointment” dated October 28, 2011 (the “First Temporary Appointment”). The First Temporary Appointment was for the period November 1, 2011 to October 31, 2012. Thereafter, the evidence of the Claimant (Exhibits 2) and the Respondent (Exhibit HT 7) show that on or about November 1, 2012, the Claimant's engagement was continued pursuant to terms outlined in a second “Offer of Temporary Appointment” dated November 2, 2012 (the “Second Temporary Appointment”).
Pursuant to the provisions of Section 4 (5) of the Act:
Short-term contracts granted to an employee in succession at intervals of less than 42 days count for the purpose of calculating his period of continuous employment.
The Tribunal therefore finds that the Claimant was continuously employed by the Respondent from November 1, 2011 to October 31, 2013 at which time her contract was not renewed. She has therefore met the requirements of Section 27 of the Act.
In the circumstances, the Claimant had a right not to be unfairly dismissed by the Respondent.
The undisputed facts of this case are that by letter dated September 26, 2013 (Claimant's Exhibit 3) the Respondent informed the Claimant that it had determined that her temporary appointment would not be extended or renewed.
Pursuant to Section 26 (1) (b) of the Act:
For the purposes of the Part an employee is dismissed by his employer where
(b) he is employed under a contract for a fixed term and that term expires without being renewed under the same contract.
To the extent that the Claimant was given notice that her contract would not be renewed, the Tribunal finds that she was dismissed pursuant to the provisions of Section 26 (1) (b) of the Act.
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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Pursuant to Section 29 (1) of the Act the burden to show that a dismissal was fair rests with the employer.
On May 23, 2017 during the course of the hearing, Counsel for the Respondent conceded that the Claimant was unfairly dismissed. In the circumstances, the burden at Section 29 (1) of the Act was not discharged. Therefore the Tribunal was left with no alternative but to conclude that the Claimant's dismissal was unfair.
That being the case, the Tribunal was of the view that determining what the principal reason for the dismissal was remained a live issue to be determined. This is because the Tribunal considered this to be a critical factor in determining the appropriate award to grant to the Claimant.
Turner v Wadham Stringer Commercials (Portsmouth) Ltd [1947] ICR 277, [1947] IRLR 83, National Industrial Relations Court is authority for the principle that to determine the reason for dismissal, the Tribunal must examine all the circumstances of the case rather than ‘the reason’ which immediately precipitates the dismissal, which may be triggered by a quite trivial matter.
According to the Statement of Henderson Thompson, the Respondent took 8 factors into consideration when it decided not to renew the Claimant's contract. These were:
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i. The Claimant's conduct / attitude towards other staff members and management;
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ii. An incident that occurred involving the Crane Resort;
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iii. The Claimant's conduct at a meeting with the TVET Council in March 2013;
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iv. The Claimant's failure and/or refusal to complete the tasks of preparing and editing “organizational publications for internal and external audiences including quarterly newsletters and annual reports in keeping with the terms and conditions of her contract
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v. The Claimant's failure to follow instructions in relation to having a Billboard prepared by Dynamic Colour;
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vi. The Claimant's failure and/or refusal to follow the Board's accounting procedure before giving instructions to the Advocate and Nation newspapers to publish articles; and
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vii. The Claimant's lack of appropriate qualifications.
The Tribunal finds that on the balance of probabilities each of these factors would have influenced the Respondent when determining not to renew the Claimant's contract, but of these 8 factors/reasons the Tribunal must determine what was the principal reason.
Of the factors/reasons listed, much emphasis was placed on the Claimants lack of appropriate qualifications. Indeed, the Director of the Respondent Mr. Thompson indicated in his evidence that based on the Respondent's standards, the Claimant was not qualified to be a Public Relations/Marketing Officer but was instead qualified to be a receptionist or clerical officer. On the face of it the Claimant's qualifications would appear to have been the principle factor/reason for the decision not to renew her contract; however the Tribunal went beyond the surface.
It is clear that notwithstanding the fact that the Claimant did not have a degree, she was able to perform the role required of her for two years. Indeed, having realised that the Claimant did not have a degree on or about April 8, 2013, the Respondent allowed the Claimant to continue working until the end of her contract. Certainly if there was concern about the Claimant's lack of qualifications the Respondent would have dismissed her immediately upon recognising that she did not possess a degree in...
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