Joel Leacock v PMM Services Ltd
| Jurisdiction | Barbados |
| Judge | Hal McL. Gollop |
| Judgment Date | 22 June 2015 |
| Court | Employment Rights Tribunal (Barbados) |
| Docket Number | Case: ERT/2014/056 |
EMPLOYMENT RIGHTS TRIBUNAL
Hal McL Gollop, Q.C., Mr. Edward S. Bushell, Mrs. Beverley P. Beckles.
Case: ERT/2014/056
(Also Known As KPMG)
Miss Jewel D Garner for the Claimant
Mrs. Sherica Mohammed-Cumberbatch and Miss Nikeh Smithen for the Respondent.
Date: 13 July 2015. The following decision of the Tribunal was delivered.
Hal McL. Gollop, Q.C. This is the decision of the Tribunal.
The facts in this matter, succinctly stated, are as follows: The Claimant Mr. Joel Leacock was employed by the Respondent as a Business Advisor pursuant to a contract of employment with a commencement date of 22 November 2011.
By letter of 18 May 2012, the Claimant was informed by Director of the Respondent, Lisa A. Taylor, that his appointment had been confirmed after he had successfully served the probationary period of six (6) months.
By letter of 5 November 2012 he was informed by Michael Edghill, acting on behalf of the Respondent, of his promotion from the position of Business Advisor 11 to that of Business Advisor 1 effective 1 October 2012.
He was further informed that his performance rating had been assessed as that of “Strong Performer” (SP) and the details of his revised compensation were set out accordingly:
| Current Base Pay | $4,875.00 |
| Increase | 125.00 |
| New Base Pay | $5,000.00 |
On 20 September 2013 the Claimant received a letter from the said Lisa A. Taylor, Director of the Respondent, informing him that his employment with, PMM Services Ltd. was “terminated effective immediately” in accordance with the terms of his contract. The letter also enclosed a cheque in the sum of $6,344.99 representing one (1) month's pay together with the vacation balance. The said letter of 20 September 2013 formed part of the documentation exhibited by the Claimant.
The Claimant was presented with the usual “Termination of Services/Lay-off Certificate” tendered into the National Insurance office in accordance with the National Insurance and Social Security Act, Cap. 47 of the Laws of Barbados. The certificate in a terse statement of the reason for the dismissal simply indicated “Termination of Contract”. Of special significance was the fact that the Certificate also recorded that misconduct was not a reason for the dismissal.
The Claimant having contended that he was unfairly dismissed, by amended Statement of Claim applied to the Tribunal for the following relief:
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I. A declaration that the dismissal was unfair;
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II. A declaration as to the reasons for his dismissal;
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III. Compensation pursuant to s 37 of the Employment Rights Act;
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IV. A recommendation that the Respondent reinstate the Claimant pursuant to s 43 of the Employment Rights Act;
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V. Re-engagement, pursuant to s 35 of the Employment Rights Act;
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VI. Such further or other relief as the tribunal deems fit; and
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VII. Costs
The case as presented before the Tribunal raised two related issues:
(1) was the Claimant unfairly dismissed; and if so,
(2) what remedies are there available for the unfair dismissal?
At the opening of the proceedings counsel on behalf of the Respondent submitted to the Tribunal that the claim was out-of-time, it having been brought after three (3) months had elapsed since the date of the termination of employment of the Claimant.
The Tribunal did not uphold the submission and, herein, now sets out the reasons for its decision.
In accordance with the Statute, a claim for unfair dismissal must be presented to the Employment Rights Tribunal before the end of three (3) months commencing with the effective date of termination. [See Employment Rights Act 2012–9, s 32(1)(2)(a)]. The trigger date commences from the date of termination.
A chronology of the correspondence in this matter indicates that by letter dated 20 September 2013 Mr. Joel Leacock, the Claimant, was dismissed by the Respondent from his employment with PMM Services Ltd. On 23 September 2013 the Claimant visited the Labour Department and complained that, in his opinion, he was unfairly dismissed.
By letter dated 10 April 2014 the Labour Department wrote to the Secretary of the Employment Rights Tribunal stating inter alia, that:
“Attempts were being made to settle this matter outside of the Tribunal, however, the matter remains unresolved and is now forwarded to the Employments Rights Tribunal in accordance with sections 32 (1) and 44 (1) of the Employment Right Act.”
The letter was clearly intended to call upon the Tribunal to determine and settle the dispute between Mr. Joel Leacock on the one hand and PMM Services Ltd. on the other over the termination of his contract after efforts to arrive at an amicable resolution of the same had proven futile.
By letter dated 21 May 2014 the Secretary to the Tribunal informed Mr. Leacock that the matter was referred to the Tribunal by the Chief Labour Officer for settlement.
At this stage, the issue at stake for determination was whether the Claimant's claim had been brought out of time. The Spirit and intendment of the Act as set out at s 27(1) is to protect the right of an employee from being unfairly dismissed by his employer.
Counsel for the Claimant submitted that he had a contract with PMM Services Ltd. Counsel also submitted that notice to the Tribunal setting out a claim of unfair dismissal was tendered within the statutory three (3) month period. Consequently, the applicant was seeking inter alia:
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1. Reinstatement pursuant to s 34 of the Employment Rights Act;
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2. re-engagement pursuant to s 35 of the Act; and
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3. compensation in accordance with s 37;
On the other hand Counsel for the Respondent submitted that the claim by the Applicant was out of time in that it was not filed within the three (3) month period as required by the Act. Counsel argued that the claim was filed on 10 July 2014 and the effective date of termination was 20 September 2013.
Section 8 (1) of the Act provides that where there is an infringement of a right conferred by the Act a complaint is to be made to the Tribunal. Section 8 (2) requires that a complaint be made to the Tribunal through the Chief Labour Officer even when there is an infringement of the employee's right, subject to ss 42–44.
Further clarification is given by s 8 (3). Therein, the complaint is deemed to have been made to the tribunal on the date presented to the Chief Labour Officer pursuant to s 42. So that on 23 September 2013, three days after the Claimant's effective date of termination, he made his complaint to the Chief Labour Officer, he was clearly within the above mentioned provisions of the Act.
The statute further provides that where there is no settlement to the dispute the Chief Labour Officer must submit a report to the Tribunal on the findings and on receipt of the same the Tribunal must consider the complaint as is stipulated by — s. 44(1)(2).
Counsel for the Respondent referred to s. 32 (1) and (2) (a): complaints to the Tribunal, in support of the contention that the application was out of time. However, it is our view that s. 32 (2)(b) gives the Tribunal a discretion to extend the time limit so long as it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the three (3) month period.
Section 32 (2) states as follows:
“The Tribunal shall not consider a complaint under subsection (1) unless the complaint is made to the Tribunal
(a) before the end of the period of 3 months beginning with the effective date of termination; or
(b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of 3 months.”
The exercise of such discretion would clearly be in keeping with the very ethos of the Statute which seeks to bring a level of fairness and equity to the adjudication of unfair dismissal matters. In addition, it is our view that it is also consistent with the importance of the statutory role accorded the Chief Labour Officer.
In accordance with the Act, “where an employee believes there is a dispute concerning an infringement of any right conferred on him by this Act, he may present a complaint to the Chief Labour Officer.”: s 42 (1)
Although time limits cannot be waived, nevertheless they can be extended by a Tribunal once given criteria is met by virtue of an ‘escape’ clause and s 32 (2)(b) can be so classified, if deemed necessary to so apply it.
Persuasive support for this proposition may be found by a reference to s 111 5 (b) of the Employment Rights Act 1996, UK. Under the said section provision is made for the Employment Tribunal to consider a complaint otherwise out of time so long as it is just and equitable to do so.
Based on the foregoing the Tribunal held the view that the application by the Claimant for Unfair Dismissal was not out of time, and so ruled
The substance of the case may be ascertained from the documents placed before the Tribunal by the parties. On his part, the Claimant in the Amended Statement of Claim made the following averments.
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1. By agreement in writing dated 4 November 2011 made between the Respondent and the Claimant, the Claimant secured a contract of employment with the Respondent as a Business Advisor. The salary payable for the post was $58,000.00 per annum.
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2. Subject to the said contract he had been continuously employed until 20 September 2013 when he was unfairly dismissed.
In the particulars of the circumstances giving rise to the dismissal, the Claimant alleged:
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(i) He was summoned to a meeting on 20 September 2013. There he met with two...
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