Can the Investigator be a Member of a Disciplinary Panel?

In the case of First Citizen Bank v Brathwaite, the Court of Appeal upheld the Tribunal’s decision that Ms Brathwaite’s dismissal was unfair. But reduced the award for her unfair dismissal as per the Caribbean Court of Justice’s ruling in Chefette v Harris.
A disciplinary hearing may be fair and impartial – although an investigator was on the disciplinary panel. But the Court of Appeal warned that it was desirable for different individuals to carry out the investigation, disciplinary hearing and appeal hearing: see paragraph 25.
 
The Court of Appeal also stated that the exclusion of Ms Brathwaite from an investigative meeting did not automatically mean that her dismissal was unfair: see paragraphs 30 and 31. 

 

Analysis

 

Disciplinary Panel

 

There is a danger that an investigator on a disciplinary panel may have concluded that an employee is guilty of misconduct - before the disciplinary hearing has taken place. Hence, the investigator may ignore any evidence that suggests that the employee is not guilty of misconduct. However, such a danger did not arise in the Brathwaite case - because Ms Brathwaite had confessed that she was guilty of misconduct at the disciplinary hearing.

 

Investigative Meeting

 

In some cases, an employer may need to hold an investigative meeting with a suspect. In order to establish all of the facts of a case – to determine if there is a case for the suspect to answer.
An investigative meeting with a suspect may prevent them from being invited to attend a stressful and unwarranted disciplinary hearing (UDH). An invitation to attend an UDH is bad HR practice. And the suspect may claim that the UDH is a breach of the implied term of trust and confidence ¹. Or they may terminate their contract of employment and claim that the UDH amounts to an unfair constructive dismissal ² as per 26(1)(c) of the Employment Rights Act 2012.
 
There is no statutory right for an employee to be accompanied by a friend or shop steward at an investigative meeting. However, the employee may be permitted to do so in accordance with their employer’s disciplinary procedure.

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1. An employer has an implied duty not to conduct itself, without reasonable and proper cause, in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee: Mahmud v BCCI [1997] UKHL 23.

2.  The test for determining whether an employer has committed a fundamental breach of the contract of employment is an objective test and not a “range of reasonable responses” test: Western Excavating (ECC) Ltd v Sharp [1977] EWCA Civ 2. The statutory provision examined in the Sharp case is very similar to section 26(1)(c) of the Employment Rights Act 2012. In order to claim unfair constructive dismissal - an employee must terminate their contract of employment - due to a fundamental breach of that contract. And not for some other reason (e.g. a new job). 

Once an employer has committed such a breach – it cannot "cure" the breach while the employee is considering whether to treat it as a constructive dismissal. The employer can only try to persuade the employee to affirm the contract: see paragraphs 52 - 56 of Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121 (Also note paragraph 22).

In the case of King v Nassco Finance Ltd, the Tribunal ruled that Mr King had not been constructively dismissed.

Additional Award for Automatic Unfair Dismissal

References to "the ERA 2012" means the Employment Rights Act 2012 (Barbados). And references to “paragraph 1(c)” means paragraph 1(c) of the 5th Schedule of the ERA 2012.

An employee’s dismissal is automatically unfair – if they have been dismissed for a reason¹ listed in section 30(1) of the ERA 2012. In such a case, the Tribunal does not need to consider the substantive or procedural fairness of the dismissal, e.g. if the employer acted within the "range of reasonable responses" or followed the standard disciplinary procedures.

There is no legal defence for a dismissal that is automatically unfair. 
 
In the case of Hurley v Gatsby Inc, Ms Hurley was dismissed due to her “refusal to adhere to company’s amended Commission structure in light of company’s economic downturn".
The Tribunal found that Ms Hurley was dismissed - because she made a complaint about her “contract of employment or practice of the employer”. And therefore, Ms Hurley’s dismissal was automatically unfair - because she was dismissed for a reason listed in section 30(1) of the ERA 2012.

The Tribunal ordered Gatsby Inc to pay an additional award of $32,339.84 to Ms Hurley - because she was dismissed for a reason listed in section 30(1)(c) of the ERA 2012. Her total compensatory award was $50, 997.71. 

Analysis

Compensatory Award for Discriminatory Dismissal 

Under paragraph 1(c) - a Tribunal can order an additional award of up to 52 weeks' wages - if a dismissal is automatically unfair under section 30(1)(c) of the ERA 2012. 

From 20 September 2020, if an employee is automatically unfairly dismissed for a reason such as their age, sex, race or disability -  the dismissal will be automatically unfair under section 30(1)(d) of the ERA 2012 - as inserted by the 2nd Schedule of the Employment (Prevention of Discrimination) Act 2020 (EPDA). Hence, the employee will not be entitled to an additional award under paragraph 1(c). 

There is no statutory limit on a compensatory award for a successful discrimination claim under the EPDA 2020. Hence, a dismissed employee may also pursue a discrimination claim under section 5(d) of the EPDA 2020 - if they are claiming that their dismissal was automatically unfair - under section 30(1)(d) of the ERA 2012.  Please note sections 32(b)(i) and 32(c) of the EPDA 2020.

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1. The reasons listed in section 30(1) of the ERA 2012 include performing jury service or representing Barbados at a sporting event.

Unfair Dismissal Claim was Out of Time

References to "the ERA 2012" means the Employment Rights Act 2012 (Barbados).

In the case of Herbert v Berger Paints Ltd, Mr Herbert was dismissed on 10 October 2014. But he did not present his unfair dismissal claim (UDC) to the Labour Department (LD) - within three months after 10 October 2014. 

The Tribunal ruled that it could not hear Mr Herbert’s UDC – because his claim was presented to the LD – after the three-month time limit (TMTL)¹. 

Mr Herbert unsuccessfully argued that his UDC had been presented to the LD within the TMTL. But the LD did not keep proper records of his visits to the LD – during late October 2014 and early November 2014. (Mr Herbert’s arguments can be found in an Addendum to the Tribunal's ruling.)

According to the Nation Newspaper (dated 15 October 2021), Mr Herbert has appealed to the Court of Appeal.

Practical Implications for Employees 

 
An employee must visit the Labour Department in person in order to make an UDC: see paragraphs 63 - 67 of Hoffmann v Caribbean Court Law Practice.

Once an employee has been dismissed (or constructively dismissed) – they must immediately present their written² UDC to the Chief Labour Officer (CLO). The employee must do so – although the CLO may be unable to start conciliating their UDC as per section 43(3) of the Act. The claim must clearly spell out that it is a claim for unfair dismissal under the ERA 2012.

Also, the employee must not wait for any other event to take place - before they present their  written² UDC to the CLO. Because the event (e.g. an appeal meeting) may be delayed or may take place after the TMTL.

An employee must note that paragraph 3(3) of the Standard Disciplinary Procedures states that - 

"A meeting in respect of an appeal need not take place before the dismissal or disciplinary action takes effect."

An employee must also note section 8(3) of the ERA 2012 and paragraphs 20 - 24 of Herbert v Berger Paints Ltd. And therefore, the employee must keep a written record (e.g. an email) that can clearly prove that their UDC was presented to the CLO within the TMTL.

In the cases of Smith v NUPW (at paragraph 50) and Alleyne v Standards Distribution & Sales Inc (at paragraph 34), the Tribunal also ruled that the claims were made after the TMTL. However, in the case of Jones v Bryden Stokes Ltd, the Tribunal ruled that Mr Jones' UDC was presented to the CLO within the TMTL.

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1.  Under section 32 of the ERA 2012, the three-month time limit (TMTL) can be extended if an unfair dismissal claimant can show that -

• it was not reasonably practicable for their claim to be presented to the Chief Labour Officer (CLO) within the TMTL, and
• their claim was actually presented to the CLO within a reasonable period after the TMTL.

See paragraphs 14 - 26 of Alleyne v Standards Distribution & Sales Inc.

2.  The dismissed employee "may make a complaint in writing to the Chief Labour Officer" under section 42(1) of the ERA 2012 (as amended by the 2nd Schedule of the Holiday with Pay Act 2017).

CCJ Reduces Award for Unfair Dismissal

References to "the Act" means the Employment Rights Act 2012 (Barbados). And references to “paragraph 1(a), 1(b), 1(c) and 2(5)” means paragraph 1(a), 1(b), 1(c) and 2(5) of the 5th Schedule of the Act respectively.

Basic Award For Unfair Dismissal

In Chefette v Harris, the Caribbean Court of Justice (CCJ) ruled that a basic award for unfair dismissal compensates an employee for their loss of wages. Therefore, the employee is not entitled to an additional award for such a loss. And the CCJ reduced the total award for Mr Harris’ unfair dismissal from $95,089.13 to $31,274.78 (i.e. the basic award for his unfair dismissal).

What is a Benefit Under Paragraph 1(b)?

The CCJ also ruled that an award for an employee's loss of benefits under paragraph 1(b) does not include wages.

The CCJ said that a “salary increase” is a benefit. But it seems more appropriate to classify a “salary increase” as wages. Hence, there is a powerful argument that a benefit under paragraph 1(b) does not include a “salary increase”. And it is unlikely that a “salary increase” will be a contractual term of employment.

See paragraphs 125 and 126 of the case transcript.

In Chandler v BTMI, the Employment Rights Tribunal ruled that a pension or a travel allowance is a benefit under paragraph 1(b).

Analysis 

Why Bother Consulting About Redundancies?

A basic award for unfair dismissal is calculated in the same manner as a Statutory Severance Payment (SSP) under the Severance Payments Act. And a basic award for unfair dismissal will be reduced by the amount of any severance payment paid by an employer to a redundant employee: see paragraph 2(5).

Therefore, an unfairly dismissed redundant employee (UDRE) will not get a basic award for unfair dismissal – if a SSP has been paid to them. And if the UDRE did not successfully claim any other compensatory award under the Act. The CCJ's ruling means that the UDRE may receive the same payments as a fairly dismissed redundant employee, e.g. a SSP, pay in lieu of notice or pay in lieu of holidays. Because the UDRE has received a basic award for unfair dismissal in the form of a SSP.

There is no financial penalty for an employer’s failure to follow the consultation requirements in section 31 the Act. Hence, the employer may not follow the consultation requirements. And only pay a redundancy payment to a redundant employee. The payment will include any monies (e.g. a SSP, pay in lieu of notice) and benefits (e.g. a travel allowance) that would be due to the redundant as per paragraph 1(a), paragraph 1(b) and section 22 of the Act. See paragraphs 121 - 124 of the case transcript.

Also see the news item entitled Redundancy Consultation.

Please note that the Government may suspend or revoke a concession (e.g. a tax exemption) that has been granted to an employer – if the employer has failed to follow the consultation requirements in section 31 of Act. See the news item entitled The Labour Clauses (Concessions) Act 2024.

CARICOM: One Rule for Us, Another for Them

On 20 March 2020, the Caribbean Court of Justice (CCJ) issued its first advisory opinion about the movement of CARICOM workers. A press release about the opinion is available at the CCJ website.

Analysis

A “CARICOM right” must be enjoyed by a CARICOM worker in any CARICOM country from the same date. Hence, the “enlargement decision” should have come into force in each CARICOM country on the same date.

It is unfair that a Barbadian worker cannot enjoy a “CARICOM right” in certain CARICOM countries – while any CARICOM worker can enjoy the same “CARICOM right” in Barbados.

The unfair treatment of Barbadian workers in CARICOM also arose when the Protocol of Contingent Rights (PCR) was implemented in Barbados.

A Government press release about the PCR stated that:

“As it relates to education and health care, the Government of Barbados, which has lead responsibility for the CSME, has moved a step further and granted children of skilled CARICOM nationals access to education at both primary and secondary levels. It has also made provision for these families to access primary health care.

However, these are areas which the other CARICOM member states aim to have implemented in the future.”

It appears that there is no deadline for the implementation of these “areas” by other CARICOM countries. Hence, the unfair treatment of Barbadian workers in CARICOM will continue indefinitely.

The Government press release (dated 7 March 2019) is available at the Barbados GIS website. It is entitled "Ambassador Clarifies CSME Contingent Rights".