Norman Grant v Barbados Beach Club
| Jurisdiction | Barbados |
| Judge | John Williams,Frederick Forde,Christopher Blackman |
| Judgment Date | 26 October 2020 |
| Docket Number | Case No. ERT/2018/019 |
| Year | 2020 |
| Court | Employment Rights Tribunal (Barbados) |
IN THE EMPLOYMENT RIGHTS TRIBUNAL
Christopher Blackman Esq, GCM; Q.C Chairman
John Williams Member
Frederick Forde, Esq. Member
Case No. ERT/2018/019
Mrs. Sally Comissiong for the Claimant; and
Ms. Tamisha Bryan with Mr. Roger Forde Q.C for The Respondent
The issue in this matter is whether termination of employment consequent to the attainment of the retirement age fixed by an employer, amounted to unfair dismissal or was a matter of age discrimination.
Mr. Grant, the Claimant worked with the Respondent from 1996 until 2009 when he resigned to take up other employment. On 6 December, 2010 Mr. Grant was re-employed by the Respondent in the position of Duty Manager at a salary of $5,000.00 on an oral contract. Mr. Felix Broome, the Managing Director of the Respondent, stated both in his Witness Statement and evidence in chief before the Tribunal that he advised Mr. Grant at the time of his re-engagement, that the age of retirement in the company was 65 years. The parties are agreed that there was an understanding that the engagement would be for a period of 2 years. However, without any further formalities, Mr. Grant continued to work until October 30 th, 2017.
On the coming in to force of the Employment Rights Act 2012 (the Act) on January 1, 2013 the Respondent hired a Human Resources Consultant to advise on the implications of the legislation. The Consultant advised among other things, that contracts of employment for the employees of the Company should be in writing.
. According to the Witness Statement of Mr. Broome, the Claimant was sent a contract on May 12, 2014 which stated at paragraph 1.1 “Your employment with us commenced on 6 th December 2010.” Paragraph 11 of that document said in part “ the official retirement age of all employees is 65 years of age.” The Claimant was requested to indicate his acceptance and agreement to the contract, by signing and returning it.
. While it has been contended by the Claimant that he never received the letter of May 12, 2014, there is an acknowledgement that a letter dated 31 st August, 2014 was received by him, and that paragraph 10 of that letter is in similar terms to that shown in paragraph 11 of the 12 th May 2014, reproduced above, namely “ the official retirement age of all employees is 65 years of age.”
. Mr. Grant admitted that he did not sign the letter of 31 st August, as he had concerns about the provisions relating to the retirement age and with paragraph 14, which dealt with disciplinary and grievance procedures. He further admitted that he did not communicate any of these concerns to Mr. Broome or to anyone else in the Company.
. According to Mr. Grant's Witness Statement he was abruptly terminated on October 30, 2017 at about 9.15 pm. He said that Mr. Broome informed him at that time, that he understood that on October 20 th, he Grant had reached the retirement age of 65 and as that was the company's retirement age, he should then leave. The only payment made to the Claimant on termination was his accrued vacation pay.
. Mr. Grant's claim of unfair dismissal made on November 1, 2017 was referred by the Chief Labour Officer to the Tribunal on March 20, 2018.
. At the hearing before the Tribunal, the Claimant confirmed the accuracy of the contents of his Witness Statement. Under cross-examination, when asked about a number of employees who had left the Company in the years preceding 2017, Mr. Grant stated that with the exception of a Mr. O'Brien Edghill, he had no recall of them and further, that he was unaware of why they had left the Company.
. Mr. Felix Broome in his evidence-in-chief said that the several persons who had left the Company in the years 2013, 2014 and 2015, had all done so when they had reached the age of 65. No evidence was led to contradict this statement.
Two seemingly contrasting provisions in the Act fall to be considered by the Tribunal. The first is that of Section 29 (1) which provides that in determining 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.
By contrast, Section 30 (1) (c) (xi) provides that a dismissal of an employee contravenes the right conferred on the employee by Section 27 where the reason for the dismissal is a reason that relates to (A) the race, colour, gender, age,…….of the employee ( Age Discrimination).
. In the text on Employment Law 5 th Edition, by John Bowers Q.C, at page 212 the learned author observed that UK legislators went to some lengths not to treat retirement as unfair dismissal. Section 109 of the UK Employment Rights Act 1996, therefore introduced the concept of ‘normal retiring age’ to take account of widely varying retiring ages in different occupations. In the context of Barbados, the term ‘normal retiring age’ is used in the Occupational Pension Benefits Act, Cap. 350B to mean the age specified in a pension plan as the normal retirement age of members. Section 29 (1) of that Act provides that the normal retirement age under a pension plan submitted for registration after the commencement date of the...
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