Senator Caswell Franklyn Speaks – Poor Orlando Harris- Screwed Twice by CCJ
As far as I am concerned May 7, 2020, the day that the Caribbean Court of Justice (CCJ) delivered its judgment in the case Chefette Restaurants Ltd versus Orlando Harris, will go down as one of the darkest days in the history of workers rights in Barbados. Admittedly, I am stunned that the award granted by the Court of Appeal was reduced from $95,089.13 to $31,274.78 but that aside, I am more concerned about the inconsistency of the decisions, involving workers, coming out of the CCJ.
On July 18, 2018 the CCJ delivered its judgment in the case between Patrick Hill and Sagicor Life Inc. where the court acknowledged that it did not have jurisdiction to hear an appeal that came from the Severance Payments Tribunal. At paragraph 2 of that judgment the court said, in part:
“It is trite law that, as specially created statutory tribunals are outside the normal courts’ structure, rights of appeal from such tribunals do not exist unless they are expressly conferred by a statute that determines the scope and nature of any appeal. In the interests of providing a simple, speedy and cheap procedure it is common to find rights of appeal restricted, especially where the members of the tribunal will have plenty of specialist experience in the matters coming before them. Thus, there may be no appeals on questions of fact, only on points of law, and it may well be that only one tier of appeal is available on points of law, as in s 39 of the SPA.”
The CCJ cemented the point by going on to say at paragraph 7 of the same judgment:
“If there were to be any exceptional intention to extend rights of appeal from statutory tribunals all the way up to the CCJ, so detracting from the speed and cost-effectiveness of a tribunal system, surely such extension would need to be spelled out.”
As far as I’m aware, industrial relations practitioners accepted the CCJ’s judgment and would have advised their clients that appeals, from the statutory tribunal called the Employment Rights Tribunal (ERT), ended at the local Court of Appeal. The act of Parliament that established the ERT did not spell out a role for the CCJ as that court ruled in 2018.
The people of this country must now wonder, what is responsible for this about turn of the CCJ. This is the highest court of Barbados and it can ill-afford to be erratic in its decisions. I am not for one minute suggesting that the CCJ should be infallible, but I would expect that if it made a mistake, it would do the honourable thing by acknowledging the error. Nowhere in the Chefette decision did the CCJ seek to overrule its previous decision.
Mind you, this same CCJ said that matters from statutory tribunals should not come to them, unless it is spelled out in the statute. Nowhere in the Employment Rights Act is a role spelled out for the CCJ. The people of the Caribbean deserve better than this!
Since I am dealing with the Chefette case, there is one other aspect that troubles me. Using the CCJ’s reasoning, the court should have awarded Mr. Harris the sum of $40,707.66 instead $31,274.78. The last sentence in paragraph 4 of the judgment states:
At the time of his termination he had retained his position as acting manager and was earning a gross monthly salary of $4,200.00.
The CCJ agreed that Harris was entitled to three weeks’ pay for each of the 14 years that he was employed. $4200.00 per month is equivalent to $969.23 per week, that is 4,200 x 12 = 50,400 which is his annual salary. Divide that figure by 52 weeks in a year to get a week’s pay.
His award should therefore have been 969.23 x 3 x 14 = 40,707.66. Using the figures in the CCJ’s judgment, the award would have been short by $9,432.88.