75 Year Old Employee was Unfairly Dismissed

In the case of Wood v Jada Builders Inc, Ms Woods’ retirement age was 66 years. However, she was allowed to continue working after her retirement age - until she was dismissed at the age of 75 years. The Tribunal ruled that Ms Wood’s dismissal was unfair. And she was entitled to claim that her dismissal was unfair - even though she was dismissed after her retirement age. See paragraphs 4.1 - 4.2 of the case transcript.

Redundancy Selection Policy

The Tribunal said that it was possible that the employer's "Oldest in, First out" redundancy selection policy may amount to unlawful age discrimination. The Tribunal (at paragraph 6.7) also said that -

“This was a missed opportunity to test the age discrimination provision in the Act. The Respondent’s (Jada Builders Inc.) “oldest in, first out” policy, which is documented nowhere in the manual or elsewhere, is on its face discriminatory. Age and no other factor informs its application. We are of the view, that had it been pleaded and argued, this case would have invited serious discussion on, and consideration of, an award (i.e. an award of up to 52 weeks’ wages) for age discrimination, protection against which is enshrined in section 30(1)(c)(xi)(A)…” 

For further information about the additional award for unlawful age discrimination - see the news item entitled Additional Award for Automatic Unfair Dismissal.

 

Analysis

Extending an Employee's Retirement Age 

An agreement about extending an employee’s normal retirement age (e.g. from 67 to 70 years) must be in writing. The agreement must also clearly state the terms and conditions of employment (TCE) - under which the employee will continue to work after their normal or extended retirement age. If the TCE have not changed - then the agreement must say so.  

Hence, it would be easier for an employer to convince a Tribunal that the reason for an employee’s dismissal is retirement - if the employee is dismissed on their extended retirement age (e.g. 70 years). 

In the case of Grant v Barbados Beach Club, the Tribunal ruled that Mr Grant's retirement dismissal was fair. The Tribunal in the Wood's case distinguished the facts of both cases at paragraph 6.6 of the case transcript.

Also see the news item entitled Government’s Statement About Retirement Age.

Redundancy Consultation

It is best HR practice to consult every employee about their redundancy dismissal.

An employee's redundancy dismissal will be unfair - if the workforce will be reduced by 10% or more - and their employer did not follow the consultation requirements set out in sections 31(4) - (6) of the Employment Rights Act 2012 (ERA).

For example, in the case of BAMC v Wickham (CA), the Court of Appeal ruled that Mr Wickham’s redundancy dismissal was unfair - because his employer did not follow such consultation requirements.

The Court of Appeal (at paragraph 40) stated that - 

“As counsel for the Appellant (i.e. the BAMC) contended, correctly in our view, under section 31 of the Act, the employer is permitted the option to consult directly with the employee or his representative (subsection (6)), namely, the trade union recognised for the purpose of bargaining on behalf of that employee - (subsection 4(b)).” 

Individual or Direct Consultation

Mr Wickham was a senior manager at the Barbados Agricultural Management Company Ltd (BAMC). The Court of Appeal ruled that the BAMC did not directly consult Mr Wickham about his redundancy dismissal for the purposes of section 31 of the ERA. Mr Wickham was not aware that he was being made redundant. Even though he was aware of the redundancies being made at the BAMC. And he was involved in the consultation process about those redundancies (e.g. he wrote a list of employees who were to be made redundant).

The Court of Appeal (at paragraph 57(a)) stated that - 

"The consultation with the employee proposed for redundancy by section 31(4)(b) and (6) is consultation with that employee qua individual employee and not qua his position or office, such as supervisor, head of department or as chief executive officer, for examples."

Consultation With a Recognised Trade Union 

The BAMC argued that the Sugar Industry Staff Association (SISA) could undertake consultation on Mr Wickham’s behalf - even though he was not a member of the SISA. The Court of Appeal agreed and stated (at paragraph 57(c)) that -

 “…subsection 31(4)(b) does not stipulate a relationship of membership between the union recognised by the employer for the purpose of bargaining and the affected employee. Rather, it demands a relationship of bargaining agency between the affected employee as a member of the bargaining unit for which the union is recognised as a bargaining agent by the employer.”

At the Tribunal hearing, the BAMC did not argue that there was a relationship of bargaining agency between Mr Wickham and the SISA (see paragraph 53).  Hence, the Court of Appeal did not entertain the BAMC’s argument - about whether there was such a relationship - because the argument had not been raised at the Tribunal hearing. See paragraphs 57(c) - 60 of the case transcript.

Special Circumstances Defence

Under section 31(6)(c) of the ERA - an employer may argue that it was not “reasonably practicable” to consult its employees about their redundancies due to "special circumstances".

In the case of Cox-Jordan v World Gift Imports Ltd, the Tribunal ruled that the employer’s failure to consult its employees about their redundancies was not due to special circumstances: see paragraphs 32, 33, 40 – 43.

Government’s Statement About Retirement Age

On 18 March 2022, the Government issued a press release about retirement age. The press release is entitled "Ministry of Labour's Statement on Age of Retirement" and it is available at the Barbados GIS website.

Analysis 

The Government’s statement about retirement age wrongly refers to section 30(1)(c)(xi)(A) of the Employment Rights Act 2012 (ERA). Because this section of the ERA was deleted by the 2^nd Schedule of the Employment (Prevention of Discrimination) Act 2020 (EPDA).

It is an anomaly that a public sector employer may rely on public sector laws to defend a retirement age discrimination claim as per section 22 of the EDPA. But a private sector employer cannot rely on any law to defend such a discrimination claim. Hence the EDPA and the ERA must be amended as follows.

Amendments to the EPDA 

The EPDA must be amended to exclude any employee from claiming unlawful age discrimination – if their employer has a normal retirement age (NRA) (e.g. 65, 67 or 70 years). And the employee was dismissed on the grounds of retirement on or after the NRA.

A contractual retirement age (CRA), an employee's awareness of - or agreement to a NRA - does not prevent the employee from successfully claiming - that their retirement dismissal amounted to unlawful direct age discrimination. In other words, a CRA, or such an awareness or agreement to NRA - does not override an employee’s discrimination rights - under the EPDA or section 31(1)(d) of the ERA. Please note paragraph 93 of Chefette v Harris (CCJ).

Amendments to the ERA

The ERA must be amended to exclude any employee from claiming unfair dismissal - if their employer has a NRA (e.g. 65, 67 or 70 years). And the employee was dismissed on the grounds of retirement on or after the NRA.

(The author respectfully disagrees with the Tribunal’s decision in the case of Grant v Barbados Beach Club. The author's opinion about the case can be viewed in the below comments.) 

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. 

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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).