The Jefferson Cumberbatch Column – Follow the Process

Prior to the introduction of the Employment Rights Act, employment in the private sector in Barbados was regarded as a mere commodity like any other, capable of being granted and re-purchased by the employer at the latter’s whim by a sufficient payment in lieu of the damages to which the employee would be entitled where the dismissal was not in accordance with the contract.

No reason had to be given for such a termination at the initiative of the employer, and even if one reason were given at the time of a summary dismissal, the law nevertheless permitted the employer to rely on a later discovered reason at the trial where the employee sued for wrongful dismissal, that is, a dismissal in breach of the employment contract.

It was generally accepted that this regime paid little or no regard to the dignity or autonomy of the employee.

The Employment Rights Act 2012 however introduced the concept of unfair dismissal into Barbadian employment law at a comparatively late stage in the region. The “unfair” dismissal, as opposed to one that was merely “wrongful”, does not depend upon there being simply a breach of the employment contract such as the employer giving insufficient notice of the dismissal, an inadequate payment in lieu of such notice or utilizing an unjustifiable summary dismissal.

Rather, it may be happily described as a dismissal in breach of the statutory right of the employee not to be unfairly dismissed as contained in section 27 of the Act.

Concordance with the Act is predicated on two levels: that the dismissal be for a fair reason [section 29] and not for an unfair reason [sections 30 and 31]; and that the determination of the existence of this reason be based on a fair procedure, including a fair investigation and a hearing consistent with the principles of natural justice.

This latter especially was emphasized last week by the Honourable Chairman of the Employment Rights Tribunal, Christopher Blackman QC, when he admonished employers to follow the stipulated procedures when seeking to dismiss workers. According to the Chairman, who bemoaned the high incidence of matters before the tribunal where employers were not following the required statutory procedures, “Employers need to look at their processes and not rely on practices that have no bearing to commonsense…”

With this statute, the dignity of the employee as an individual was clearly respected. He or she was no longer essentially dismissible at the pleasure of the employer and by virtue of the employer now having to justify the dismissal by establishing a stipulated reason and showing that the factual basis for this had been established after a fair investigation and hearing, the concept thereby reduced the notion of a broad managerial prerogative and enhanced the security of tenure of the employee.

Moreover, the dismissal is also to be further assessed for fairness on whether the employer acted “reasonably or unreasonably” in treating the reason as a sufficient justification for dismissing the employee, although this determination is not to be assessed on what the tribunal itself would have done, but instead on how a reasonable employer, identically situated as the defendant was, would have acted.

Nor is the procedure with which the employer has to comply a particularly onerous one. For dismissals generally, and specifically for those based on the capability of the employee or on his or her conduct, disciplinary action should be progressive, and where a dismissal is contemplated, the employer must “set out in writing the alleged conduct or characteristics of the employee, or other circumstances, which lead him to contemplate taking disciplinary action against the employee; and send the statement or a copy of it to the employee and invite the employee, along with his representative, if any, to attend a meeting to discuss the matter”.

The Fourth Schedule to the Act also makes provision for the conduct of the meeting referred to above, including the timelines for its occurrence, the necessary preconditions for including the obligation of the employee to take all reasonable steps to attend the meeting, and the post-meeting obligations of the employer [paragraph 2 (1) to (4)].

Paragraph 3 of the Schedule provides for the circumstance where an employee wishes to appeal the determination of the hearing-

Where the employee wishes to appeal, he must so inform the employer in writing, and follow the established disciplinary procedure of the workplace.

Part C of the Fourth Schedule further provides for a modified disciplinary procedure that requires to be sent to the employee by the employer a written statement of the alleged misconduct of the employee which led to the dismissal; the basis for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct; and the right of the employee to appeal against the dismissal.

This provision that appears to permit an employer to decide on a dismissal without a hearing seems to be an anomaly in a system that emphasizes natural justice and should probably be available in limited circumstances only. The employee’s right of appeal against a decision that has already entered the mind of the employer seems little more than a brutum fulmen in this context. The right to a hearing where dismissal is contemplated ought to be waiveable by the employee only.

Indeed, in the very case where the Chairman is reported to have made his quoted comments, the dismissal was held unfair because, inter alia, there was an internal hearing to which the dismissed employee was not invited to defend herself.

12 comments

  • Here is an article in the local press.

    ERT: ‘Follow the rules in firing’

    Article by
    Emmanuel Joseph

    Published on
    July 31, 2019

    The head of the Employment Rights Tribunal is warning bosses to follow the procedures set out in the Employment Rights Act when seeking to fire workers.
    Chairman and former High Court Judge Christopher Blackman, QC, put business leaders on notice this afternoon while handing down a decision in an unfair dismissal case in favour of former Acting Senior Settlement Officer of First Citizens Bank DebraBrathwaite.
    Blackman said that one of the biggest concerns of the tribunal was that too many cases are coming before the quasi-court where employers are failing to go through the right processes for terminating staff.
    “Employers need to look at their processes and not rely on practices that have no bearing to commonsense,” he told the hearing which was held at the Labour Department in the Warrens Office Complex.
    The chairman of the three-member tribunal also expressed particular concern about the way in which human resources departments are functioning across the country.
    In citing instances which he noted continue to be come before the ERT, the former High Court Justice has told human resources officers that their mandate was not only to represent the business, but the staff as well.
    “Too often HR is echoing management’s views. Considerable work needs to be done in the industrial relations climate in Barbados,” the tribunal chairman declared.
    Blackman also took employers to task for the manner in which they respond to invitations to attend hearings, blaming them for tardy response.
    In handing down the ruling in the claim against First Citizens Bank, the tribunal declared that the former Acting Senior Settlement Officer was unfairly dismissed by her employer on February 8, 2016.
    The chairman ruled that the bank’s termination procedure was fundamentally flawed.
    Blackman said the judgment, which was given minutes after today’s hearing ended, will be delivered in writing in more detail in September.
    He said the tribunal will determine compensation to Brathwaite later, considering she did not want reinstatement.
    Brathwaite was terminated after 28 years with the bank, when she was found to have used its internal electronic information system to initiate an automatic transfer of $500 monthly from her personal chequing account to her personal savings account between 2013 and 2015.
    The evidence revealed that such action contravened section 5.10 of the bank’s Handbook of Employee Policies, which stipulates that any “employee in breach of the policy on processing transactions to their personal account (s) will be subject to disciplinary action, up to and including dismissal”.
    This afternoon, the former senior staffer recalled pleading guilty to breaching the policy and had apologized for her action.
    But earlier in today’s hearing, the tribunal chairman pointed to a number of key procedural flaws including not being cautioned by a senior management official about her rights during an initial meeting and having an internal hearing to which she was not invited to defend herself.
    Tribunal Registrar Winston Chase told Barbados TODAY afterwards that the speed and timeliness with which cases can be concluded and rulings made, are the result of regular Case Management Conferences (CMCs).
    Chase noted that CMCs are able to identify issues at an early stage, encourage parties to use dispute resolution where possible, encourage cooperation between parties, fix timelines for hearing of cases, give direction to ensure cases proceed effectively and efficiently and to ensure no party gets an unfair advantage by failure to give full disclosure.
    The Registrar said he has 12 more cases on his desk to make ready for case management conferences covering the years 2015 to 2017 and for dates to be set for hearing.

    Liked by 1 person

  • In England, it was widely acknowledged that the modified disciplinary procedures (MDP) would rarely be used. The MDP may apply to cases where the employee’s employment could not continue, e.g. a bus driver who has been disqualified from holding or obtaining a driving licence.

    The MDP may also apply to rare cases where an immediate “gross misconduct” dismissal may be fair. In such a case, an investigation would have been futile – because, e.g. the employee was caught “red-handed”. And they freely admitted that they were stealing goods from their employer.

    The statutory disciplinary procedures no longer apply in England

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  • Vincent Codrington

    @ Jeff

    This particular ruling of the ERT sought to restore the balance between employers and employees which most commentators feared recent Industrial relations legislation had rolled back .

    However this particular case is interesting in that it seems to have required prior warnings. If there is a rule that relates to how employees in a bank treat with their own accounts, is that stage of the process necessary? Is thar rule not prior warning?

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  • Vincent Codrington

    Error ” Is That rule not prior warning?”

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  • In Chefette v Harris, the Court of Appeal confirmed that – a dismissal can be unfair – even though an employer (e.g. Chefette) dismissed an employee – in accordance with an express term to do so (e.g. an express term in Chefette’s Code of Discipline). Such an express term did not supersede an employer’s legal obligations under the Employment Rights Act 2012.

    The Chefette case is available at: http://www.barbadoslawcourts.gov.bb/wp-content/uploads/2017/08/CVA-No-11-of-2016-Chefette-Restaurants-limited-v-Orlando-Harris.pdf

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  • It seems basic that HR or Employee Relations managers should ensure company code is aligned with ERT legislation.

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  • Vincent Codrington

    @ David BU

    Sometimes it is not that clear cut. There may be a conflict.
    Just last week we had a blog on this. Is scamming a clients account theft from the bank or theft from the bank’s customer.

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  • Companies which are minded to do the right thing always consult with their legal adviser(s) prior to making serious decisions like terminations.Terminating an employee of 28 years service raises a lot of questions especially where the employee did not steal, nor engaged in violence on the company’s premises both of which are known to all staff as published company policy resulting in instant dismissal

    Liked by 1 person

  • On what was reported it seems the bank was extreme to fire the employee for the breach in procedure. The blogmaster is tempted to ask if it was motivated by the push at the time to retrench workers.

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  • David: I agree with your comment at 6.40 pm.

    Mr Codrington: Theft is gross misconduct – regardless of whether it is theft from a bank or a bank’s customer.

    It appears that the disciplinary penalty (or punishment) did not fit the disciplinary offence (or “crime”).

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  • Vincent Codrington

    @ Tony Trotman.at 9:07 PM

    I think I may have misled you into conflating two issues. I do not approve of theft. That was not the issue. The point I was trying to convey to David is that issues are not that clear cut. HR need to consult their lawyers and even then the court or ERT may disagree.

    The referenced previous blog was an issue of whose responsibility it was to protect and restore depositors funds in the ATM of the bank. That issue was settled; but originally there was some confusion.
    Similarly if there is a rule that one as an employee should not effect transactions on one’s account ,does the bank need to follow the procedure of issuing several warnings ?

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  • Mr Codrington

    Thank you for your clarification.

    An employer’s rule does not supersede its legal obligations under the ERA 2012.

    The issue is whether the employer acted unreasonably – in treating the breach of the transaction rule – as a sufficient reason for dismissing the employee. And whether it followed the statutory disciplinary procedures. See sections 29(4) and (5) of the ERA 2012.

    The ERA 2012 states that “except in the case of gross misconduct, an employee should not be dismissed for his first breach of discipline”: Rule (b) of Part A of the 4th Schedule. Did the breach of the transaction rule amount to gross misconduct or misconduct? Was it the employee’s first breach of discipline?

    A first or final written warning may have been an appropriate disciplinary penalty for the breach of the transaction rule.

    The ERA 2012 is available at: https://labour.gov.bb/wp-content/uploads/PDF/Employment-Rights-Act-2012-9-Corrected-Copy.pdf

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