Pauline Wood v Jada Builders Inc.
| Jurisdiction | Barbados |
| Judge | Kathy-A. Hamblin,Deighton Marshall,Ulric Sealy |
| Judgment Date | 30 May 2023 |
| Docket Number | NO. ERT/2016/172 |
| Court | Employment Rights Tribunal (Barbados) |
Kathy-A. Hamblin Deputy Chairman
Deighton Marshall Member
Ulric Sealy Member
NO. ERT/2016/172
EMPLOYMENT RIGHTS TRIBUNAL
Caswell Franklyn for the Claimant
Paul Lewis (Former HR Director, Jada Group) for the Respondent
This matter was referred by the Chief Labour Officer to the Tribunal by letter dated February 19, 2016. The Claim Form was filed on April 12, 2016, and on October 12, 2021, the Claimant filed a four-and-a-half-line letter outlining the circumstances of her termination. Her witness statement was not filed until April 20, 2023. A case management conference was held on May 4, 2023, and in partial compliance with the Order of the Tribunal made on that date, the Respondent filed its Form 2 response on May 10, 2023. The matter was heard on May 17, 2023.
The Claimant's recollection of the content of certain documents and of key facts was spotty. She appeared at times to be frustrated and was easily confused, which was as much a function of her age as it was of the length of time which has elapsed since the submission of her complaint. Like the Claimant, the Respondent's representative Paul Lewis admitted that he too had difficulty recalling certain facts.
The Claimant's pleadings were barebone and were filed without supporting documents. She modified her witness statement in oral testimony with the leave of the Tribunal, to correct the assertion at paragraph 6 therein, that she “ was never issued with any documents” or with a letter of termination. The Claimant confirmed that she did receive and hand over those documents to her representative, Caswell Franklyn.
Despite having been ordered by the Tribunal at the case management conference to file its witness statements, the Respondent failed or refused to comply with that order. The Respondent opted to rely solely on its Form 2 response and the attachments thereto, which Mr. Lewis “ viewed as [the Respondent's] statement”.
The Claimant is an 83-year-old wheelchair-bound, unilateral amputee. She worked for the Respondent, JADA Builders Inc. as a maid for 18 years, commencing April 8, 1997. The Claimant alleged that she was unfairly dismissed on August 27, 2015. She testified that one of her supervisors, Jerry Gooding, approached her on Wednesday, August 26, 2015, hugged her and told her, “ Ms. Wood, you are a good worker but after tomorrow we will have no work for you.” The Claimant stated that she reported for work as usual on August 27, 2015, and worked her full shift, after which she was never called back out to work. She testified that “ nuhbody din explain nutten to me.”
The Respondent company countered that the Claimant was retired as a result of a “ slowing down of projects”. The Respondent contended that the Claimant was aware that the company's fixed retirement age for all employees is 66. The Claimant attained that age on April 12, 2006, but was allowed, at her request, to continue to work for an additional 9.25 years. The Respondent argued also that the Claimant, “ being a long standing employee of JADA Builders Inc., would have been given notice to age 66 and the Company should not now be punished for allowing her an additional nine years of service beyond the clearly stated retirement age.”
The Respondent did not refute the Claimant's account of how she was informed of her pending “ retirement”. However, the company asserted that on August 27, 2015, a letter of termination bearing that date was handed over to the Claimant's son, Ryan Wood, who signed for the letter and a cheque for one week's pay in lieu of notice on the Claimant's behalf.
There are two issues for determination by the Tribunal. The first is whether the Claimant is entitled to the protection of the Employment Rights Act, 2012-9 (“the Act”), she having long reached and passed the contractual age of retirement and, secondly, whether termination of her services with one day's notice was unfair.
There is no reference to age in the Act. That is no anomaly. The Act affords protection to employees against discrimination based, among other things, on age.
Section 30. (1) (c) provides as follows:
“ 30. (1) A dismissal of an employee contravenes the right conferred on him by section 27 where:
(c) the reason for the dismissal is….
(xi) a reason that relates to
(A) the race, colour, age, marital status, religion, political opinion or affiliation, national extraction, social origin or indigenous origin of the employee”.
It would be incongruous for the legislation to provide that protection whilst at the same time limiting the applicability of the Act by reference to age.
It is the opinion of the Tribunal that where, by mutual agreement between employer and employee an employee is permitted to work beyond the statutory or a contractually stipulated retirement age, in the absence of any statutory or other limitation, that employee is afforded the full protection of the Act. As such, the answer to the first question for determination by the Tribunal is in the affirmative,
Under section 29. (1), the burden of proof of the reason for dismissal is on the Respondent employer. Pursuant to section 29. (2), an employer has the right to dismiss for, inter alia, a reason related to the capability of the employee to perform work of the kind which he was employed by the employer to do, or for a reason related to the conduct of the employee, or for redundancy. The Claimant's termination was neither related to her capability nor to her conduct.
In the termination letter, the Respondent attributed the Claimant's “ retirement” to “ the slowing of projects and limited manpower”. On the Termination/Lay-off Certificate of the same date, the Respondent listed as the reason for termination, “ retirement-slowing down of projects.” In oral statements made to the Tribunal, Mr. Lewis initially reiterated that the principal reason for the Claimant's termination was “ slowing down of projects.”
Section 31. 2 (b) recognises cessation or diminution, or anticipated cessation or diminution of “ the requirements of the business for employees to carry out 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”, as justifiable reasons for termination. While the purported reason for the Claimant's dismissal raises a defence of redundancy, redundancy was not specifically pleaded in defence to the claim.
Even if the facts permitted the Tribunal to construe the reason given for the dismissal to be a de jure redundancy regardless of how it was pleaded, that defence would fail for two reasons. The first is that despite claiming a decrease in business as the basis for the Claimant's dismissal, the Respondent adduced no evidence of a reduction of its workload or of a concomitant reduction of its workforce by more than one person. The second is that there is no evidence before the Tribunal of the Respondent's compliance with section 31. (4), ( 5) or (6) of the Act, which are critical precursors to the establishment of the right to dismiss for redundancy.
There is no record of the number of persons who were impacted by the “ slowing of projects” or, of whether that number reached the statutory threshold of 10% of the workforce so as to trigger the requirement for consultation with the Claimant six weeks in advance of the proposed date of dismissal. Similarly, there is no record of provision to the Claimant's union or the Chief Labour Officer of a statement of the reasons for and the particulars of the dismissal, or of notification having been given to the...
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