Rosalind Patrick v Rendezvous Retreat Homes Incorporated
| Jurisdiction | Barbados |
| Judge | Hal McL. Gollop |
| Judgment Date | 28 March 2017 |
| Court | Employment Rights Tribunal (Barbados) |
| Docket Number | CASE: ERT/2014/047 |
EMPLOYMENT RIGHTS TRIBUNAL
Mr. Hal Gollop, Q.C., Chairman
Mr. Edward S. Bushell, Employer Representative
Mr. Ulric E. Sealy, Employee Representative
CASE: ERT/2014/047
Hal McL. Gollop, Q.C.
Neither the Claimant nor the Respondent was represented in this matter.
The Claimant commenced employment with the Respondent on 10 December 2007 and ceased employment on 19 December 2013.
The Claimant was employed as a caretaker and her post was subsequently changed to Auxiliary Nurse. The number of hours she worked varied from day to day, but in answer to the Chairman, she said she worked a twelve hour shift.
The Claimant was paid weekly at the rate of ninety-six Barbados dollars (BDS$96.00) per day. Her job was to bathe patients, make their beds and ensure that the rooms were clean; it being an old people's home, the management expected that all areas would be sanitary and comfortable for the occupants.
On 19 December 2013, Mr. Ronald Nicholls, the Managing Director of the company, held a meeting with the staff and, among other things discussed was the enhancement of nursing skills of the employees.
The Claimant said in her evidence that while the other nurses pursued various courses at the Samuel Jackman Prescod Polytechnic, she applied to the Barbados Community College and was accepted to pursue the one year nursing programme; her acceptance was communicated to Mrs. Collymore the Nursing Manager of the company and she was congratulated. She was also congratulated by Mr. Nicholls, the Managing Director.
Her evidence also revealed that Mrs. Collymore adjusted her work schedule so that she could be able to attend college; she was required to call the office every Wednesday for the work schedule.
On 18 December 2013, Mrs. Patrick called the office for the work schedule and was told by Mrs. Collymore that the roster was not ready and she should call the next day. It must be borne in mind that the roster and schedule contained the periods which Mrs. Patrick was expected to work.
At about 6:30 p.m. on 19 December 2013, the Claimant received a telephone call from Mrs. Collymore advising her not to come to work on the following weekend because her duties were being taken away, as management was making nurses redundant.
Upon receipt of this information from Mrs. Collymore, the Claimant asked for her unemployment form, no doubt thinking that she too would be made redundant. Her evidence further revealed that Mrs. Collymore told her:
“This is not a lay off or anything like that but we are not taking you back.”
The Claimant in our opinion came to a reasonable conclusion that she was being terminated when she said to Mrs. Collymore,
“It sound like I am fired… I should have my unemployment form.”
The Claimant had some difficulties receiving her unemployment form from the company; Mrs. Collymore told her they do not have to give her an unemployment form. In the meantime, the Claimant sought advice from the National Insurance Department and an officer told her to register her claim, otherwise she would lose benefits. The Claimant followed the advice and registered her claim with the department.
In answer to a question from the Chairman concerning her understanding of the meaning of the term redundancy, the Claimant's reply was:
“You are fired and no longer required by the company to work.”
The Claimant was cross examined by Mrs. Collymore. She insisted that she was congratulated by Mrs. Collymore after having been accepted at the Community College. However, the Respondent made it known that two auxiliary nurses who did a similar course offered their resignation from the company. The Tribunal viewed this suggestion to mean that the Claimant was well within her right to resign also, and was expected so to do.
In Mrs. Collymore's evidence in chief, she said Mrs. Patrick was employed as a Nursing Auxiliary; Mrs. Patrick denied this and said she was employed as a Caregiver. The Respondent clarified the distinction, stating that the Nursing Council changed the name Caregiver to Nursing Auxiliary. In answer to a question from the Chairman concerning the titles, the Respondent's reply was that the core function was to look after the elderly.
During the period that the Claimant was at the Barbados Community College she was rostered to work on Friday and Saturday night during the month of August to December 2013. However, owing to the death of a number of patients at the institution, the Respondent told the Claimant she would no longer be rostered.
Concerns were expressed by the Respondent and Mr. Nicholls, Managing Director, over the alleged resignation of the Claimant; the Respondent thought the Claimant had submitted her resignation later at the end of August 2013, and there was some confusion as to who should have received the resignation letter, whether it should have been Mrs. Collymore or Mr. Nicholls.
On the question of redundancy, the Respondent in her evidence said she would not say the Claimant was made redundant or was terminated because she was not a full time employee.
Mr. Ronald Nicholls gave evidence as a witness for the Respondent; he is the owner and Managing Director of Rendezvous Homes Incorporated; he was also the author of the termination of services/lay off certificate belonging to the Claimant. According to the document, the Claimant was on study leave without pay. This suggested she was still an employee of the company.
Having found herself in financial difficulties, the Claimant asked Mr. Nicholls if she could work two (2) nights per week in order to meet personal expenses. This in itself was not an unreasonable request bearing in mind she was on study leave with no pay and was still an employee of the company.
The issue of the Claimant's resignation was put to the witness by the Chairman. The witness stated that the Claimant indicated to him and Mrs. Collymore that she had resigned and would be leaving at the end of August 2013; but he maintained that the Claimant voluntarily left the employment and in the details column of the certificate, he stated that the Claimant requested leave to study and it was granted without pay. Also in the same certificate it was stated that the Claimant was not terminated but left to pursue studies.
The Tribunal is satisfied that the statements on the certificate were very conflicting and the evidence of Mr. Nicholls was not reliable.
The evidence of Mr. Nicholls relates to the customary practice at the company when employees resign their jobs; they would give to management their resignation letter; but it was rather strange that the Claimant did not submit a letter, yet management insisted that she told them she was resigning her job.
What she was alleged to have told them however was not recorded on the National Insurance Termination Certificate. The question therefore to be considered is, was the Claimant treated differently from the other employees in relation to the submission of a letter of resignation?
The test faced by the Tribunal was simply, which one of the witnesses could be believed?
The evidence by the Claimant of being told by Mrs. Collymore that she would not be taking her back to work and she was going to make nurses redundant, was not challenged by Mrs. Collymore when she was examined by the Claimant and Mrs. Collymore in her evidence also made reference to redundancy and lay off of nurses due to the number of deaths of patients at the nursing home.
The issues for the Tribunal therefore are whether Mrs. Patrick resigned from her post to study at the Barbados Community College, whether she was given study leave without pay, or whether she was constructively dismissed.
On the first issue there is no clear evidence that the Claimant had resigned her job; an examination of the evidence of Mrs. Collymore reveals at P.31 of the Transcript:
“I took it for granted, which I should not assume, that since she had told me that she was going to be working until the ending of August that she would have submitted her resignation at the end of August.”
Mrs. Collymore further stated in her evidence:
“I went along thinking that she had done that, and we thought that she had submitted it. When I came back I took it for granted that she had given him her resignation, that is what others had done.”
The Tribunal is satisfied that the reference to ‘he’ in this portion of her evidence, relates to Mr. Ronald Nicholls, the Managing Director of the Company.
With regard to the evidence of Mr. Nicholls on this...
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