Dismissed assistants win battle against employer

A local duty-free retailer has been ordered to pay three former employees more than $162,000 in compensation for unfairly dismissing them.

The Employment Rights Tribunal (ERT) handed down the decision today against Gatsby Incorporated, retailer of clothing and accessories for men and women, in favour of ex-Sales Assistants Lisa Davis, Natalie Hurley and Juliette Best.

Chairman of the ERT, retired High Court and Court of Appeal Judge Christopher Blackman, who read the judgment, ruled that Gatsby must pay out the money within 30 days.

The company claimed that Davis, who was hired in December 1994, was fairly terminated in April 2014 in a business reorganisation.

But the claimant pointed out that the termination certificate filed with the National Insurance Office stated that she was dismissed for misconduct for “refusal to adhere to the company’s amended commission structure in light of the country’s economic downturn”.

The tribunal chairman noted that as a consequence, Davis’ right to claim from the NIS for unemployment benefits was negatively impacted before the issue was resolved.

“The tribunal on September 10, 2019 upheld the contention that the claimant’s dismissal was unfair in that there had been a failure to observe the requirements of the Fourth Schedule [in the law], in that, notwithstanding the allegation of misconduct, there had been no hearing to rebut the allegation of misconduct,” said Justice Blackman.

He said the tribunal had invited the parties to make submissions on the remedies to be considered.

He stated that the claimant had no interest either in reinstatement or re-engagement and that while attorney for Gatsby Stewart Mottley agreed to the basic award amount sought by the claimant, he still challenged that claim under a section of the Employment Rights Act.

In his decision today, Justice Blackman, flanked by fellow Commissioners Edward Bushell and Beverley Beckles, said the panel is satisfied that the true reason for the dismissal was for a complaint which involved the contract of employment or practice by the employer.

He ruled that in such circumstances, a financial award is appropriate.

“There is consensus between the parties that the quantum of the basic award be $32,007.21. This takes into account the base salary, commissions and travel allowance, a merger of the provisions of paragraphs 1 (a) and (b) of the Fifth Schedule,” the retired Court of Appeal Judge stated.

“The award pursuant to paragraph 1 (c) of the Fifth Schedule is $29,199.56 being $561.53×52. The respondent is ordered to pay the claimant the sum of $61,206.77 within 30 days of this date,” the Tribunal Chairman ruled.

Fellow workers Hurley, who was awarded $50,997 and Best, who is to get $50,144 were also unfairly dismissed under similar circumstances.

The only difference is that Davis had put in 26 years’ service, Best 19 years, and Hurley 17.

Best was represented by attorney Verla De Peiza while those appearing for the company on September 10, 2019 were Queen’s Counsel Cecily Chase (now a High Court Judge) in association with Sade Williams and Shaquille Newton. On July 7, 2020 Stewart Mottley and Kimberley Moe represented the retailer.

Hurley and Davis were represented by legal counsel Desiree Browne.
emmanueljoseph@barbadostoday.bb