Keith Alleyne v Standard Distribution and Sales Inc.

• Jurisdiction: Barbados
• Court: Employment Rights Tribunal (Barbados)
• Judge: Kathy-A. Hamblin,Beverley Beckles,Deighton Marshall
• Judgment Date: 31 August 2023
• Year: 2023
• Docket Number: NO. ERT/2014/038

BETWEEN:

Keith Alleyne

Claimant

and

Standard Distribution and Sales Inc.

Respondent

TRIBUNAL

Kathy-A. Hamblin Deputy Chairman

Beverley Beckles Member

Deighton Marshall Member

NO. ERT/2014/038

EMPLOYMENT RIGHTS TRIBUNAL

APPEARANCES

Mr. Ensley Grainger, Attorney-at-Law for the Claimant

Katrina Newton, Chief Executive Officer and Marlene Gervais, Group Industrial Relations Manager for the Respondent

DECISION

Introduction

1 . For 13 years, Keith Alleyne (“the Claimant”) was employed by Standard Distribution and Sales Inc. (“the Respondent”) as an appliance service technician. On May 25, 2013, he borrowed a disused washing machine pump from a scrap pile on the Respondent's premises for use on a washer he was fixing off site. That act led to his suspension and ultimate dismissal on July 12, 2013.

2 . The Claimant presented a complaint of unfair dismissal to the Chief Labour Officer on January 23, 2014, more than six months after the date of his termination and almost three and a half months after the expiration of the 3-month statutory limitation period, which is counted from the effective date of termination. The complaint ought to have been lodged on or before October 11, 2013.

3 . The complaint was referred to the Tribunal on March 10, 2014, by the Chief Labour Officer and notice of the referral was sent by the Tribunal's secretariat to the Claimant by letter dated May 12, 2014. By a further letter dated June 19, 2014, the Claimant was invited to submit his Claim Form 1 and supporting documents including the letter of termination. Near identical correspondence dated June 28, 2014, was sent to the Respondent inviting the submission of its Form 2 response and supporting documents.

4 . For the next eight years, the Claimant did nothing. His matter languished despite repeated requests dated December 2, 2015, June 9, 2017, January 18, 2019, and May 27, 2021, for the submission of his Claim Form and Witness Statement. It was not until the Tribunal caused a notice of abandoned claims to be published in the Nation Newspaper on June 28, 2021, that the Claimant was prompted to file a Claim Form and Witness Statement on July 28, 2021. Neither document adequately addressed the circumstances of the Claimant's employment and dismissal or the nature of the relief he sought. Not one supporting document was provided for the consideration of the Tribunal.

5 . In the meantime, the Respondent, having been formally put on notice since May 2014 that there was a pending claim against it, also did nothing. None of the Tribunal's correspondence to the Respondent was acknowledged.

6 . A case management conference was held on June 29, 2023. The parties were ordered to file on or before July 13, 2023, in the case of the Claimant, a supplemental witness statement setting out in clear terms the nature of his complaint, and in the case of the Respondent, Form 2 and any witness statements and other documents upon which the Respondent intended to rely. The parties were also ordered to file and exchange skeleton arguments on or before July 20, 2023. They were both directed to show why the Tribunal should or should not hear this matter, given the length of time which has elapsed since the Claimant's dismissal.

7 . On July 14, 2023, the Claimant filed a witness statement without pay slip, letter of termination, contract of employment, employee handbook or any other documents to support his claim. On July 25, 2023, he filed a witness statement of Eric Trotman along with his skeleton arguments. The Respondent disregarded the Order of the Tribunal. The company filed nothing.

8 . In a letter to the Tribunal's secretary dated July 25, 2023, the Respondent objected to the hearing of the matter citing estoppel, abuse of process and unfairness to the Respondent. The Tribunal invited oral submissions from the Respondent.

9 . The crux of the Respondent's argument was that the time for presenting a complaint to the Tribunal is three months as set out in section 32 (2) (a) of the Employment Rights Act (“the Act”). The Respondent further contended that given the length of time which has elapsed since the Claimant's dismissal, the Respondent could not properly respond because the company is “ challenged” as it relates to “ making contact with key witnesses” and “ retrieving evidence”. The Respondent complained that “ the delay of some ten (10) (and counting) years in the Tribunal hearing the matter inevitably operates to the Company's irremediable prejudice and, therefore, if pursued would constitute an abuse of the Tribunal's process as prescribed under the Act”. Accordingly, the Respondent urged the Tribunal to dismiss the complaint.

10 . In response, Counsel for the Claimant argued that the objective of the Act is to protect employees against being unfairly dismissed and pursuant to section 27 (1) of the Act, the Claimant had a right not to be unfairly dismissed. He also argued that the Claimant has “ a realistic case to be heard” and that “ despite the passage of time, the Tribunal is well-equipped to hear this matter notwithstanding what the Claimant may have omitted to do due to… ignorance of the law.”

ISSUE

11 . In a letter to the Tribunal dated August 14, 2023, Counsel for the Claimant requested that “ the Labour Officer who have done (sic) the Conciliation be summoned before the Tribunal… in order to establish that the Claimant had a hearing before the said officer.” That request was denied. Whether or not the Claimant had a conciliation hearing is not in issue. Enquiries relating to the conciliation hearing will not assist the Claimant. The facts recited above give rise to a preliminary issue, namely, whether the Tribunal should exercise its jurisdiction pursuant to section 32 (2) (b) and extend the limitation period, the complaint having been filed more than six months after the effective date of dismissal and more than three months after the expiration of the limitation period.

THE LAW

12 . Section 32 of the Act provides that:

32. (1) An employee may make a complaint to the Tribunal on the ground that he was unfairly dismissed by his employer.

(2) 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.”

Section 32 (2) (b) is an “escape clause”, which extends a lifeline to the claimant whose claim is filed out of time.

That section ought to be read in conjunction with section 8 and in particular with subsection (3). Section 8 (3) provides that:

“ 8. (3) A complaint shall be taken to have been made to the Tribunal on the date that it is presented to the Chief Labour Officer pursuant to section 42.”

13 . Counsel did not invoke the escape clause. The Tribunal afforded the Claimant an opportunity to provide a reason or reasons for his failure to file the complaint in time. The Tribunal has no jurisdiction to hear the claim unless it is satisfied that it was not reasonably practicable for the Claimant to have presented his complaint before the end of the limitation period. If it is so satisfied, the Tribunal may extend the limitation period for such further period as it considers reasonable. If the Tribunal is not so satisfied, the matter can go no further. There is no automatic entitlement to the benefit of the escape clause.

DISCUSSION

“Not reasonably practicable”

14 . The reason for the late filing of the claim is a question of fact in every case. In Bodha (Visnudut) v. Hampshire Area Health Authority [1982] CR 200, Times Newspapers Ltd. v. O'Regan [1977] IRLR 101, EAT, the EAT held that “ the correct test was a strict test of practicability, namely whether the act of presenting the complaint in time was reasonably capable of being done”.

It is for the Claimant to demonstrate to the satisfaction of the Tribunal one or more reasons why it was not reasonably practicable for him to present his claim to the Chief Labour Officer within the limitation period.

“ [T]he question of what is reasonably practicable should be given ‘a liberal interpretation in favour of the employee. ( Marks and Spencer plc v....