Michelle Sonia Cox-Jordan v World Gift Imports (Barbados) Ltd Trading as Little Switzerland
| Jurisdiction | Barbados |
| Judge | Christopher Blackman,John Williams,Frederick Forde |
| Judgment Date | 21 July 2020 |
| Court | Employment Rights Tribunal (Barbados) |
| Docket Number | Case: 32/2017 34/2017 |
THE EMPLOYMENT RIGHTS TRIBUNAL
Christopher Blackman Esq, GCM; Q.C. Chairman
John Williams, Esq. Member
Frederick Forde, Esq. Member
Case: 32/2017
33/2017
34/2017
Mr. F. Albert Pollard, Attorney-at-Law for the Claimants
Ms. Alexandra Daniel and Ms. Sukeena Maynard, Attorneys-at-Law for the Respondent
The principal rationale of the Employment Rights Act (the Act) is found in Section 27 which provides that an employee has the right not to be unfairly dismissed by his employer. However, the reality of life necessitated that there be a balance, and so provision was made in the Act for dismissal by reason of redundancy, conduct, capability and the like. In the context of this matter, where reliance on redundancy is at the root of the dispute, Section 29 (1) requires the employer to show that a dismissal by reason of redundancy was fair. Section 31(1) (a) provides that the dismissal of an employee does not contravene the right conferred by section 27, if the reason for the dismissal is that of redundancy.
Section 31 (2) provides that 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 (a)….. (b) the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind where the employee was so employed, have ceased or diminished or are expected to cease or diminish.
The tensions of Sections 27 and 31 are consequently at the forefront of the issue in this matter.
The First Claimant joined the Respondent Business on the 19 th February, 1996 and worked continuously until she was terminated on the 24 th March, 2017 without notice, for reasons of redundancy. At the time of her termination, she held the position of Assistant Manager and consequently was not a member of a union.
The Second Claimant joined the Respondent Business on the 3 rd April, 2006 and worked continuously as a Sales Consultant until she was terminated on the 24 th March 2017 without notice, for reason of redundancy. She was a member of the Barbados Workers Union (the BWU).
The Third Claimant joined the Respondent Business on the 19 th February, 1996 and worked continuously as a Sales Consultant until she was terminated on the 24 th March 2017 without notice, for reason of redundancy. She was also a member of the BWU.
All 3 Claimants received termination letters dated 24 th March, 2017 from the Respondent and were offered 6 weeks wages in lieu of consultation, which offers were accepted by the Second and Third Claimants. The reasons relied upon by the Respondent was stated to be the prevailing economic climate and diminished requirements for work within the company.
The Claimants contend that they were not told what criteria was applied to their selection for immediate termination without notice or whether any criteria was applied at all. Moreover, they claimed that there had not been any consultation with the Claimants nor where applicable, their workers representative.
Consequently, the claimants are claiming that they were unfairly dismissed since the Respondent breached its statutory duty to carry out consultation with all affected employees no later than 6 weeks before dismissal as specified in the Act.
Mr. Ryan Callender on behalf of the Respondent, in his Witness Statement said that prior to 2016, the Respondent had 2 locations in Barbados, one on the West Coast and the other in Bridgetown. In early November 2016, the West Coast store was closed for economic reasons and its staff was absorbed into the Bridgetown store. The total complement after the merger of the branches was 27 persons.
Mr. Callender further stated that as it became apparent that the staff complement of 27 was too great for the business being generated, a decision was taken to restructure the Respondent's business.
On 6 th March 2017, Mr. Callender on behalf of the Respondent accompanied by the Respondent's legal adviser held a meeting with the Chief Labour Officer to discuss the proposed restructuring. Mr. Callender stated that three categories of employee had been identified for termination and that the criteria for selection was an evaluation of skill, experience and the performance of the selected employees against the future needs of the Respondent.
Mr. Callender further stated in his Witness Statement that the Chief Labour Officer was advised that there were special circumstances which made it impractical to comply with the requirements of Section 31 (6) (a) of the Act which required that consultations shall commence not later than 6 weeks before any of the affected employees were dismissed, and which was further to the requirement of section 31(4) that consultation was required when the workforce of the business was likely to be reduced by 10 per cent or any other significant number. These reasons or special circumstances were given as “security, competition, confidentiality and risk associated with the same”.
Mr. Callender further stated at paragraph 16 of his Witness Statement that it was agreed among all parties at the March 6, 2017 meeting that an effort should be made to mitigate the adverse effects caused by the Respondent's inability to comply with Section 31 (6) (a) of the Act, by making a payment equivalent to 6 weeks wages of the Claimant's salary in lieu of consultation.
By letter dated March 22, 2017 Mr. Callender, on behalf of the Respondent wrote to Mr. Vincent Burnett, Chief Labour Officer stating in part: “ Reference is made to our meeting on March 6, 2017…..This letter serves to formally advise the Labour Department that a total of six (6) persons will be terminated by reason of redundancy on March 24, 2017… we are unable to adhere to the six (6) weeks consultation period as prescribed by the Employment Rights Act….to mitigate and insulate the adverse effects of the terminations, each affected employee will receive pay in lieu of the consultation period equivalent to six (6) weeks (one and a half months) in addition to their statutory entitlements and the prescribed pay in lieu of notice.”
By letter dated March 22, 2017 Mr. Callender on behalf of the Respondent wrote to the General Secretary of the BWU, the representative for the Second and Third Claimants, to advise that a total of six (6) persons will be terminated by reason of redundancy on March 24, 2017. A meeting was arranged and held on 24 March 2017 with the BWU representatives at which the method and selection criteria, the number of employees and positions expected to be affected, and date of the proposed action was communicated by the representatives of the Respondent.
At paragraph 22 of the Witness Statement, Mr. Callender observed that “ No objections were raised by the BWU at this point, however, they did reserve the right to raise questions at a later date.”
Sometime later in the day of 24 March 2017, the 3 Claimants received termination letters dated 24 March, 2017 from the Respondent in which inter alia, they were offered 6 weeks wages in lieu of consultation in addition to their statutory entitlements and the appropriate pay in lieu of notice.
These offers were accepted by the Second and Third Claimants.
On 21 April, 2017 each of the Claimants made a complaint of unfair dismissal to the Chief Labour Officer. On 25 July, 2017, the Chief Labour Officer, having been unable to resolve the complaints through conciliation, referred the several complaints to the Tribunal for determination and settlement.
The issues that now arise for determination by the Tribunal are:
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(a) Did the Respondent comply with the redundancy consultation provisions of section 31 (6) (a) (b) of the Act and were their special circumstances which rendered it not reasonably practicable for the Respondent to comply with the 6 weeks requirement of the foregoing provisions of the Act; and
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(b) Whether in all the circumstances, the terminations were fair.
Section 31(1) (a) of the Act provides that the dismissal of an employee does not contravene the right conferred by section 27 not to be unfairly dismissed, if the reason for the dismissal is that of redundancy. Section 29 (1) moreover, provides that it is for the employer to show that dismissal by reason of redundancy is fair. Section 31(4) (5) and (6) of the Act details the steps employers must take to meet the criteria for the dismissal to be fair.
The provisions of Section 31(4) (5) and (6) are:
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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 the 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 recognized 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 employee, in addition to the employee in question, are affected by those facts .
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(6) The consultation referred to in subsection (4) (a) are consultations with the affected employees or their representative, being consultation conducted in...
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