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