Roslyn Patricia Smith v National Union of Public Workers
| Jurisdiction | Barbados |
| Judge | Justice (ret'd) Christopher Blackman, GCM,Edward Bushell,Frederick Forde |
| Judgment Date | 28 February 2023 |
| Docket Number | ERT/2020/043 |
| Court | Employment Rights Tribunal (Barbados) |
The Hon. Mr. Justice (ret'd) Christopher Blackman, GCM Chairman
Edward Bushell, Esq Member
Frederick Forde, Esq; GCM Member
ERT/2020/043
IN THE EMPLOYMENT RIGHTS TRIBUNAL
Ms. Duana M Peterson, Attorney-at-Law for the Claimant
Mr Larry Smith S C and Mr Codie Hinds, Attorneys-at-Law for the Respondent.
The issue for determination in this matter is whether Roslyn Smith (hereinafter referred to as the Claimant or Ms. Smith) a former General Secretary of the National Union of Public Workers was unfairly dismissed or whether as contended by her former employer (hereinafter referred to as the Respondent or the NUPW) her contract of employment came to an end on the attainment of the retirement age, namely 65 years, as stipulated in her letter of appointment as the General Secretary of the NUPW dated 4 November, 2015 which she signed.
It is common ground that when Ms. Smith first commenced her employment with the NUPW in November 1972 at the age of 19, there was no mention of either retirement age or a date of retirement in her contract of employment.
The six substantive grounds of Ms. Smith's claims as detailed in the Claim Form 1 dated 12 October 2020 are:
a. Unfair dismissal pursuant to section 27 of the Employment Rights Act (the Act);
b. Failure to pay the termination amount due pursuant to section 22(3)(c) of the Act;
c. Failure and or refusal to provide a certificate of employment record pursuant to section 23 (1) of the Act
d. Breach by the NUPW of the terms and conditions of her employment contract, which, did not provide for a retirement age;
e. Unfair dismissal while on certified sick leave in breach of section 30(1)(b)(i) of the Act
f. Unfair dismissal pursuant to section 30 1 (c) (iv)) of the Act in respect of a complaint concerning the unauthorized use by the President of the NUPW, of the NUPW's credit card.
The Tribunal has on its own motion, considered whether it has jurisdiction to consider items c, e and f detailed in paragraph 3 above, and for the reasons hereinafter stated, has concluded that it does not have jurisdiction to entertain any of the foregoing claims.
Section 25 (4)(a) of the Act provides that the Tribunal shall not consider a complaint with respect to the failure and or refusal to provide a certificate of employment record pursuant to section 23 (1) of the Act unless the complaint is made to the Tribunal before the end of the period of 3 months beginning with the date on which the employment ended.
Section 37 of the Interpretation Act, Cap 1 states that: “In an enactment passed or made after the 16 th June, 1966 the expression “shall” shall be construed as imperative and the expression “may” as permissive and empowering.”
The letter dated July 15, 2019 to the Chief Labor Officer (the CLO) Exhibit RS 18 attached to the Claimant's Witness Statement of October 2020, and written on behalf of the Claimant, stated that the Claimant had been terminated from April 30, 2019 (emphasis added) and sought compensation only in respect of the basic award, pay in lieu of notice, and 95 days vacation pay. The Tribunal accordingly finds as a fact that the first occasion on which the claim for failure and or refusal to provide a certificate of employment record has been advanced, is on the Claim Form 1 dated 12 October 2020 and that the elapsed period of over 17 months between the alleged termination date of April 2019, and the date on the Claim Form 1 is substantially in excess of the time period prescribed in the Act. Consequentially, the Tribunal has determined that it has no jurisdiction to consider the claim for non-production of a certificate of employment record and to make an award in respect of that claim.
The Tribunal would consider together, the claims for unfair dismissal while on certified sick leave in breach of section 30(l)(b)(i) of the Act and unfair dismissal pursuant to section 30 (1) (c) (iv)) of the Act in respect of a complaint concerning the unauthorized use by the President of the NUPW, of the NUPW's credit card. Section 32 (1) of the Act provides that an employee may make a complaint to the Tribunal that he was unfairly dismissed by his employer, and subsection (2) further provides the Tribunal shall not consider a complaint under subsection (1) unless the complaint is made to the Tribunal before the end of the period of 3 months beginning with the effective date of termination.
As noted in paragraph 7 above, the letter dated July 15, 2019 Exhibit RS 18, stated that the Claimant had been terminated from April 30, 2019 (emphasis added) and sought compensation only in respect of the basic award, pay in lieu of notice, and 95 days vacation pay. The Tribunal would also refer to the letter dated 1 st July, 2019 to the NUPW, Exhibit RS 17 attached to the Claimant's Witness Statement of October 2020, and written on behalf of the Claimant which dealt only with the issue of retirement age and the Claimant's contract.
The Tribunal finds as a fact that the claims of unfair dismissal while on certified sick leave in breach of section 30(1)(b)(i) of the Act and unfair dismissal pursuant to section 30 1 (c) (iv)) of the Act in respect of a complaint concerning the unauthorized use by the President of the NUPW, of the NUPW's credit card, first appeared on the Claim Form 1 dated 12 October 2020, and so are well outside the period of 3 months prescribed for advancing a claim for unfair dismissal in the specified circumstances detailed in the Act. Consequentially, the Tribunal has determined that it has no jurisdiction to consider either of the claims made under section 30(1)(b)(i) and section 30 1 (c) (iv)) of the Act.
The Tribunal would wish to emphasise that failure to fully identify breaches of the Act, including those relating to the unfair dismissal of an employee, in the referral letter to the Chief Labour Officer under section 42 (2) of the Act, within the period of 3 months or 6 months as the case may be as stipulated in the relevant sections of the Act, may well constitute a bar to the Tribunal hearing and determining the complaint. See the remarks of Lord Denning MR in Deadman v. British Building and Engineering Appliances Ltd [1974] 1 All ER 521 at page 526, letters b to e, those of Walker LJ at paragraph 12 in Porter v. Bandridge Ltd [1978] IRLR 271 and the recent decision in Wray v. Jewish Care [2019] UKEAT/ 18, three English cases that address the consequences of non-compliance with the statutory requirements to present the complaint. The Tribunal has also considered two recent decisions of the Court of Appeal of the Bahamas which are germane to the issue of jurisdiction. These are Island Hotel Company Limited v. John Fox IndTribApp No. 54 of 2017, the decision given on 26 September 2018 and First Caribbean International Bank (Bahamas) Ltd v. Byron Miller IndTribApp No. 40 of 2018, judgment given on 27 June, 2019.
The Tribunal would now proceed to consider the Claimant's claim for unfair dismissal pursuant to section 27 of the Act in the context of the alleged breach by the NUPW of the terms and conditions of the Claimant's original employment contract which had not stipulated a retirement age.
The evidence considered by the Tribunal is contained in (a) the Claimant's Witness Statements (inclusive of the several Exhibits to the said Witness Statements) dated respectively 12 October 2020, 18 May 2022, 20 July 2022 and 1 December 2022; (b) the Witness Statements of Mr. Richard Greene the current General Secretary of the NUPW, dated 26 July, 2022, and that of Delcia Burke a former General Secretary of the NUPW dated January 13, 2023, filed on behalf of the Respondent, and (c) the sworn testimony of the above mentioned persons, given under cross-examination.
In August 2013 the Claimant was appointed Deputy General Secretary of the NUPW with effect from August 15, 2013. The terms and conditions of her appointment in relation to salary, allowances and other benefits were detailed in the letter of August 19, 2013 and accepted by the Claimant on August 20, 2013. There was no reference to a retirement age or a date of retirement in that letter.
The circumstances of the Claimant's appointment on 23 October, 2015 as General Secretary of the NUPW are, however, in some dispute.
Extracts from paragraphs 6, 9, 10 and 11 of the Claimant's Witness Statement dated 12 October 2020 which are considered material to the issues for determination, are reproduced hereunder:
“6. On the 23rd day of October, 2015, I was promoted from the post of Deputy General Secretary of the NUPW to the post of General Secretary of the NUPW by the National Council of the NUPW. When I was appointed General Secretary by the National Council, I do not recall being issued with a formal letter of appointment in respect of this promotion. However, I continued to work under the existing terms and conditions of service of my employment, which did not include a retirement age.
9. In or around April 2016, an urgent personal issue arose and I needed to secure urgent financing from Royal Bank (Barbados) Limited. I therefore requested a job letter to take into the Bank to facilitate my application. I was surprised when instead of a standard job letter I was banded a backdated letter dated November 4th 2015, intituled “Appointment to the Post of General Secretary.” The letter was authored and signed by the President of the NUPW, Mr. Akanni McDowall. I immediately noticed that the letter contained an error, specifically that “iv…..your normal retirement age is October 1st, 2018.” (emphasis added)
10. I pointed this out to the President and requested that the error be corrected and the portion of the letter which stated that your normal retirement age is October 1st, 2018 be deleted because I did not...
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