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.
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.