Jason Bent v Jada Builders Inc.
| Jurisdiction | Barbados |
| Judge | Mr. Justice (ret'd) Christopher Blackman GCM,Edward Bushell,Mrs. Beverley Beckles |
| Judgment Date | 16 November 2021 |
| Docket Number | ERT/2019/39 |
| Court | Employment Rights Tribunal (Barbados) |
The Hon. Mr. Justice (ret'd) Christopher Blackman GCM; Q.C Chairman
Edward Bushell, Esq Member
Mrs. Beverley Beckles Member
ERT/2019/39
EMPLOYMENT RIGHTS TRIBUNAL
Jason Bent, Claimant in person.
The Respondent was not present.
The Respondent in this matter has ignored the many steps taken, including the publication in the Daily Nation of Monday July 19, 2021 of the hearing date of Friday, July 30, 2021 at 10.00 am of a TAKE NOTICE dated the 30 th day of June, 2021 that required the Respondent to appear before the Tribunal to defend a claim for unfair dismissal brought by the Claimant. The Respondent was advised in the said TAKE NOTICE that if it failed to appear at the hearing, the Tribunal may proceed to hear and determine the matter in its absence.
The Tribunal acknowledges that at the time of issuing the foregoing TAKE NOTICE the Employment Rights Act (the Act) had no Rules in place to provide for the said TAKE NOTICE. However, section 6 (3) of the Act provided that subject to the Act, the Tribunal shall regulate its own procedure. Accordingly, in the spirit of ensuring justice between the parties, the Tribunal determined that Notice be given to the Respondent of any Hearing in advance of that hearing to afford the Respondent an opportunity to appear and make any application that it sought fit to make.
On July 30, 2021, at 10.00 am, the hearing of the matter was called on in the Large Conference Room, 2 nd Floor, Warrens Office Complex, Warrens, St. Michael. The Registrar of the Tribunal, Mr. Winston Chase in the environs of the hearing area called the name of the Respondent 3 times and there was no appearance by anyone, for or on behalf of the Respondent, JADA BUILDERS INC. The Tribunal thereafter heard the matter.
The Claimant, Jason Bent was sworn and gave evidence in furtherance of the Witness statement which had been filed on October 24, 2019 and which statement has been relied upon by the Tribunal. The critical issues identified in that statement relate to the start of his employment with the Respondent on January 19, 2015 as an Assistant Quantity Surveyor and the circumstances leading to his termination on March 5, 2019 when he held the position of Quantity Surveyor.
In light of the significance of the details given by the Claimant at paragraph 5 of his Witness Statement under the captioned “ Circumstances Leading to mv Termination.” the paragraph is reproduced in its entirety, as follows:
“On February 08, 2019, I was invited to a meeting with Mr. Paul Lewis (PL) (Chief Personnel Officer), Mr. Geoff Gray (GG) (Commercial Manager) and Ms. Shantelle Hayes (HR Manager). At that meeting I was told that “business was slow” and therefore, they were asking that I take a sabbatical (Time off without pay). I told them that I could not take a sabbatical at the time because my wife just had a baby and we needed an income to sustain my family. In addition, I stated that I was currently working on a number of projects that required my attention at that time and thus, would not be able to complete said projects if I took a sabbatical.
Geoff Gray then suggested that instead of taking a sabbatical that I be laid off for thirteen (13) weeks, during which time they would call me back when needed and pay me for my time during that layoff period. I rejected Geoff Gray's proposal. Paul Lewis then noted that things were really slow with the company and that he had been instructed by Mr. Philip Tempro to cut down on the number of staff in order to reduce the company's overheads. I then suggested that since things were slow with the company that everyone in the Commercial Department should work on a part-time basis. PL and GG confirmed that was a good suggestion and that they were going to speak to the other employees within the department about that part time work schedule. Later that afternoon; Geoff Gray told me that the part-time arrangement (2 1/2
days per week) will take effect starting Monday February 11, 2019.
Later that same evening I spoke to the other employees within the Commercial Department and found out that only the local employees (two black men) in the department, that being Tony Latchman and myself, were asked to work part-time. The others, Malcolm McDonald, Stuart Hope and Geoff Gray all expat workers from the UK (all Caucosians) continued to work fulltime. I then went back to Paul Lewis and asked why only Tony Latchman and myself were asked to work part-time, to which he told me that the others will be placed on part-time basis soon.
In the weeks that followed, I observed that only Tony Latchman and I were working part-time. I spoke to Shantelle Haynes (HR Manager) and Joyce Hoyte (Office Manager) and informed them that the company acted prejudicially and that secondly, my employment rights were violated namely they had placed me on part-time work without proper consultation.”
Mr. Bent further stated that on February 27, 2019, he was summoned to a meeting with the Chief Personnel Officer, Paul Lewis. During that meeting he learned that an error had been made in pricing a Tender on which he had worked. He was suspended at the conclusion of the meeting and advised that he would be made aware of the Company's decision on March 4, 2019.
At the meeting on March 4, 2019, Mr. Bent was informed by Mr. Lewis that it had been decided to terminate his employment. Mr. Bent stated that he pleaded with Mr. Lewis not to be terminated. Mr. Lewis said he would prefer not to fire him and instead invited him to resign In consideration of which a debt of approximately five thousand dollars would be written off, and a letter of recommendation provided. Mr. Bent further stated that he said he would think about it and that he would advise Mr. Lewis of his decision.
On the following day March 5, 2019, the Claimant sent Mr. Lewis an email at 10.53 am advising that he would not be resigning and later that day he received an email with a letter of dismissal attached, dated March 4, 2019. The Claimant said that he exercised his right to appeal on March 12, 2019 but there was no response to that filing.
In accordance with section 42 of the Act, on March 18, 2019 Mr. Bent informed the Chief Labour Officer of the circumstances relating to the termination of his employment with the Respondent.
The Chief Labour Officer's attempts to conciliate the matter were unsuccessful, and on the 7 th day of August 2019 the matter was referred to the Tribunal for determination.
In the Claim Form filed by the Claimant on August 15, 2019, the Claimant contended (1)) that the Respondent contravened Section 38 (1) of the Act and violated the rights afforded to him under the said Act, and (2) that the Respondent had failed to follow the process set forth in the Fourth Schedule to the Act in relation to his dismissal.
The two issues for determination by the Tribunal are therefore (a) was Section 38 (1) of the Act contravened and (b) was there compliance by the Respondent of the provisions of the Fourth Schedule to the Act in relation to the dismissal of the Claimant
The material provisions of Section 38 are set out hereunder. The subsections are (1) and (4) to (7)
38. (1) Except where there is an agreement to the contrary in a contract of employment, an employer shall not lay off an employee, or place an employee on short-time,
(a) except for one or other of the reasons specified in subsection (4); and
(b) unless the requirements of subsections (5), (6) and (7) are complied with in relation to the laying off of the employee or the placement of the employee on short-time, as the case may be.
(4) The reasons referred to in subsection (1) (a) are that:
(a) the employer has temporarily ceased, or intends temporarily to cease, to carry on the business for the purposes of which the employee was employed by him, or has temporarily ceased, or intends temporarily to cease, to carry on that business in the place where the employee was so employed;
(b) the requirements of the business for employees to carryout work of a particular kind, or for employees to carry out work of a particular kind in the place where the employee was so employed, have temporarily ceased or diminished, or are expected temporarily to cease or diminish.
(5) Before laying off the employee or placing him on short-time, the employer shall
(a) carry out the consultations required under subsection (7) (b); and
(b) supply the employee, the trade union recognised for the purposes of bargaining on behalf of the employee (if there is one) and the Chief Labour Officer with a written statement of the facts that require the employer to lay off the employee or place him on short-time.
(6) The statement referred to in subsection (5) (b) shall contain particulars of
(a) the facts referred to in subsection (4) relevant to the lay-off or short-time action; and
(b) the number and categories of affected employees and the period during which the lay-off or short-time action is to be carried out, where any employees, in addition to the employee in question, are affected by those facts,
(7) The consultations referred to in subsection (5) (a) are consultations with the affected employees or their representatives, being consultations conducted in accordance with the following requirements:
(a) the consultations shall commence not later than 6 weeks before any of the affected employees is laid off or placed on short-time and shall be completed within a reasonable time;
(b) the consultation shall be in respect of
(i) the proposed method of selecting the employees who are to be laid off or placed on short-time;
(ii) The proposed method of carrying out the lay-off or short-time action, with due regard to any agreed procedure, including the period...
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