Shikeila Johnson v Ian Griffith Mortuary Service

• Jurisdiction: Barbados
• Judge: Christopher Blackman,John Williams,Frederick Forde
• Judgment Date: 30 April 2019
• Court: Employment Rights Tribunal (Barbados)
• Docket Number: ERT/2018/316

EMPLOYMENT RIGHTS TRIBUNAL

Before:

Christopher Blackman Esq. GCM; Q.C; Chairman

John Williams Esq, Member Frederick Forde Esq, Member

ERT/2018/316

Shikeila Johnson

Claimant

and

Ian Griffith Mortuary Service

Respondent

Appearances:

Mr. Caswell Franklyn for the Claimant

Mrs. Sheena Mayers-Granville, Executive Director, Barbados Employers Confederation for the Respondent

DECISION

1 The issue for determination in this matter is whether there was compliance with the provisions of Section 31 of the Employment Rights Act (The Act)

2 The claimant's claim is that of unfair dismissal as she refused to accept a reduction in salary on being asked to be the Receptionist. She has sought reinstatement of her job as a mortuary assistant, the position held prior to going on maternity leave.

3 Mr. Ian Griffith the Respondent stated the position of mortuary assistant had been made redundant and that consequently, reinstatement was not an option.

4 Both Mr. Franklyn and Mrs. Mayers-Granville focused their submissions on the provisions of Section 31 of the Employment Rights Act. Mr. Franklyn submitted that section 31(4) required that certain consultations and actions are required before an employer may dismiss for reasons of redundancy, and that failure to comply with the statutory obligations, rendered the dismissal unfair.

5 Mrs. Mayers-Granville, in rebuttal submitted that “The intent behind the legislation is for consultation to occur where significant numbers are impacted and NOT where a single individual is made redundant.”

6 The significance of the foregoing submission has however been undermined by the statement at page 9 of 13 in the Submissions, in red, that “In the UK, there is no statutory requirement for collective consultation where the redundancies involve less than 20 employees.” The Barbados legislation offers no such concessions. We think it appropriate to observe that the legislature should provide that a minimum number of employees are required before the Act may be invoked.

7 A great deal of what has been said of the Respondent in the submissions, may well be true, and were it not for non-compliance with the statutory requirements, the termination may well have been fair. We are obliged however to hold that as the Respondent failed to carry out the consultations required by section 31 (6)(b), the dismissal was unfair.

8 The Tribunal now considers what remedy is due to the claimant in the circumstance that the claimant has expressed a wish to be reinstated, or failing that, to be re-engaged.

9 Section 33 (3) of the Act provides that “In exercising its discretion under subsection (2) the Tribunal shall first determine whether to make an order for reinstatement of the employee and, where the Tribunal determines that it is not appropriate to make such an order, the Tribunal shall determine whether to make an order for his re-engagement.”

Section 33 (4) (b) further provides that the Tribunal shall take into account whether it is practicable for the employer, or his successor, to comply with an order for the reinstatement or re-engagement, as the case may be.

10 The case of Central & North West London NHS Foundation Trust v. Abimbola [2009] UKEAT...