Vicky Chandler v Barbados Tourism Marketing Inc.
| Jurisdiction | Barbados |
| Judge | Christopher Blackman,John Williams,Frederick Forde |
| Judgment Date | 22 May 2020 |
| Court | Employment Rights Tribunal (Barbados) |
| Docket Number | Case: ERT/2016/209 |
IN THE EMPLOYMENT RIGHTS TRIBUNAL
Christopher Blackman Esq, GCM; Q.C. Chairman
John Williams, Esq. Member
Frederick Forde, Esq. Member
Case: ERT/2016/209
Mr. Westmin R A James, Counsel for the Claimant
Mrs. Faith Seale Q.C for the Respondent at Case Management Conference on February 4, 2019; thereafter Mr. C Anthony Audain Q.C with Mr. Brian Barrow for the Respondent.
. Miss Chandler, (the Claimant) was employed by the Barbados Tourism Authority (the Authority) under a number of contracts from April 1, 1993 until August, 2014. From 1998 to 2001, the Claimant was engaged as District Sales Manager, New York and from 2001 to 2014, as a Marketing Executive in the Barbados office. The Authority ceased to exist in April 2014 when by virtue of the Barbados Tourism Marketing Inc. (Transfer of Management and Vesting of Assets) Act 2014 certain of the Authority's functions and responsibilities were transferred to the Barbados Tourism Marketing Inc. ( BTMI). In August 2014 BTMI (hereinafter called the Respondent) hired the Claimant as a Director with effect from August 25, 2014. The relationship of over 23 years in the tourism industry came to a sudden and crashing end on August 11, 2016 due to the termination of the Claimant by the respondent as Director of Marketing, with responsibility for the Caribbean and Latin America.
. On July 5, 2016 the Claimant was orally informed by Mr. William Griffith, the Chief Executive Officer of the Respondent that the Board of Directors had decided to transfer her to the post of Director of Cruise. This advice was later confirmed by letter dated July 7, 2016. On July 18 the Claimant declined the offer and three days later she was advised that it would be considered an act of insubordination if she did not comply with the reassignment.
. A disciplinary hearing was convened for August 4, 2016 to discuss the act of insubordination and the breach of the terms of the contract of employment resulting from the decision by the Claimant not to comply with the reassignment. The hearing on August 4, 2016 was chaired by the Deputy Chairman of the Board who also functioned as Chairman of the Human Resources Committee.
. The decision given on August 10, 2016 by the Deputy Chairman who upheld the position that continued non-compliance with the proposed reassignment was insubordinate. The Claimant was offered a final opportunity to comply with the directive of reassignment by 4.00 pm on August 11, 2016. As there was no reply at that time, the Chief Executive Officer of the respondent on August 11, 2016 issued a letter to the Claimant terminating her employment with immediate effect for insubordination and breach of contract.
. The Claimant on the 12 th day of August 2016 referred the issue of her dismissal to the Chief Labour Officer, pursuant to section 42 of the Employment Rights Act (the Act) and following the failure of conciliation, the matter was referred to the Tribunal for its consideration on October 3, 2016.
. Subsequent to the case management conference (CMC) on February 4, 2019 and other CMCs at which the Claimant and the Respondent were represented by Counsel, there was acceptance by the respondent that the Privy Council decision in Stubbs et al v. The Queen [2018] UKPC 30; [2018] 1 WLR 4887, was apposite the issues that arose in the instant matter. The respondent by its Counsel, C. Anthony Audain Q. C. on October 30, 2019 conceded that the dismissal of the Claimant was unfair and that the disciplinary hearing was procedurally irregular.
. Section 33 of the Act provides for the remedies to be granted by the Tribunal where it has found that the claim of the Claimant is well founded. Equally, in the case of an admission of liability by the Respondent, the Tribunal is similarly empowered to make the appropriate orders.
. The Claimant has sought reinstatement to her former position as Director of Marketing, asserting through her Counsel that she is of the belief that there is a position suitable within her competencies, with the Respondent. Sub-section 4 of Section 33 provides, inter alia, that in determining whether to make an order for the reinstatement of the employee or for his re-engagement, the Tribunal shall take into account, whether it is practicable for the employer or its successor, to comply with an order for reinstatement or re-engagement, as the case may be. The Respondent through its Counsel has stated that there are no positions to which the claimant may be reinstated.
. Mr. James in his written submissions has stressed that the Tribunal in evaluating the purpose of the Act should give recognition to the tenet that reinstatement or reengagement is the primary remedy for unfair dismissal. While the Tribunal accepts the underlying principle in the foregoing statement, it is equally aware that reinstatement should not be ordered if it is ‘not practicable’ for the employer to comply with it. As Mrs. Justice Simler in the Employment Appeal Tribunal decision in British Airways plc v. C Valencia [2014] IRLR 683; [2014] ICR D29 noted at paragraph 7, that while it is clear that tribunals have a wide discretion in determining whether or not to order reinstatement or reengagement, it is a question of fact for them. This Tribunal has accordingly considered whether it has been provided with the factual background to consider whether to order reinstatement or reengagement.
. This Tribunal, in a decision dated 23 rd August 2019 ERT/2018/316 Johnson v. Griffith considered the issue of reinstatement and we reproduce hereunder paragraphs 10,11 and 14 of that decision in support of our position that the Tribunal needs an evidentiary background to consider the matter:
“ [10] The case of Central & North West London NHS Foundation Trust v. Abimbola [2009] UKEAT 0542/08, was concerned with an order for reinstatement made by an Employment Tribunal in favour of Mr. Abimbola, a Psychiatric Nurse following a finding that Mr. Abimbola had been unfairly dismissed from his employment by the Respondent, the Central & North West London NHS Foundation Trust.
[11] On appeal to the Employment Appeal Tribunal, Judge Peter Clark, sitting with Mr. Harris and Mr. Warman, set aside the order for reinstatement. Such an order would have required the employer to re-employ him in a female ward, where there had been complaints, albeit unproven, of sexual misconduct made against him. In such circumstances and noting the other allegations, Employment Appeal Tribunal held that the Employment Tribunal failed to take into account the cogent factors which undermined the NHS Foundation Trust's trust and confidence so to re-employ him.
[14] In the circumstances of the instant case, having regard to the small number of employees (7), and the nature of the previous personal relationship which had existed between the Claimant and the Respondent, the Tribunal is of the view that an order for reemployment whether by...
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