Hotel employee retired, not dismissed

A former senior employee with Barbados Beach Club has lost his claim for unfair dismissal.

However, in handing down the decision this morning at the Warrens Office Complex in St Michael, the Employment Rights Tribunal (ERT) ordered the company to pay ex-Duty Manager Norman Grant one month’s salary of $5,000 which is due to him in lieu of notice.

ERT Chairman, retired Appeal Court Justice Christopher Blackman, QC, said in his judgment, that the issue at hand was whether termination of employment consequent to the attainment of the retirement age fixed by an employer, amounted to unfair dismissal or was a matter of age discrimination.

Grant worked with the Maxwell Coast Road, Christ Church hotel from 1996 until 2009 when he resigned to take up other employment.

On December 6th, 2010 he was re-employed by the hotel as a Duty Manager at a salary of $5,000 per month on an oral contract.

In his witness statement and evidence-in-chief before the tribunal, Managing Director Felix Broome said he had advised Grant at the time of his re-engagement that the age of retirement in the company was 65 years.

“The parties are agreed that there was an understanding that the engagement would be for a period of two years.  However, without any further formalities, Mr Grant continued to work until October 30, 2017,” the tribunal Chairman said in his ruling.

Justice Blackman, a former High Court Judge, said that with the enactment of the Employment Rights Act on April 15, 2013, the former hotel Duty Manager hired a human resources consultant to advise him on the implications of the legislation. He said the consultant advised, among other things, that contracts of employment for employees of the company should be in writing.

The ERT Chair recalled Broome’s witness statement in which he said that the former senior employee was sent a contract on May 12, 2014 stating in part: “your employment with us commenced on 6th December 2010,” and that “the official retirement age of all employees is 65 years of age”.

The claimant was requested to indicate his acceptance and agreement to the contract by signing and returning it.

Justice Blackman, who was flanked by fellow commissioners John Williams and Frederick Forde, said while it has been contended by the claimant that he never received the May 12 correspondence, there is an acknowledgement that a letter dated 31st August, 2014 was received by him.

The ERT head went on to rule that Grant also conceded that paragraph 10 of that letter is in similar terms to the May 12th document, namely “the official retirement age of all employees is 65 years of age”.

The presiding judicial officer told the tribunal that the claimant admitted he did not sign the August 31st letter because he was concerned about the provisions relating to the retirement age and with the portion which dealt with disciplinary and grievance procedures.

“He further admitted that he did not communicate any of these concerns to Mr Broome or to anyone else in the company,” stated Justice Blackman in his judgment.

Grant claimed he was abruptly terminated on October 30, 2017.  He said that Broome informed him at that time, that he understood that on October 20, he, Grant had reached the retirement age of 65 and as that was the company’s retirement age, he should then leave.

The tribunal chairman declared that the only payment made to the claimant on termination was his accrued vacation money.

“The tribunal is obliged to observe that the legislation relied upon by the claimant is not applicable to the factual circumstances of this matter. The legislation relied upon refers to the public sector and this is very much a relationship between private individuals,”  Justice Blackman ruled.

He said in this case, the claimant knew in 2010 of the company’s position as to retirement and which was reinforced by the letters sent in 2014.

“It is our view that the claimant had the responsibility to initiate discussions on the issue of the retirement age if he had a contrary opinion as to when retirement ought to be.  The position may well have been different if there had never been a written document given to the claimant, as the hire in 2010, was done orally,” the ERT head ruled.

Justice Blackman cited a similar foreign case in which the respondent’s views as to retirement had been in the partnership deed from the time a Mr Seldon [claimant] became an equity partner in 1972.

“In the premises, the tribunal holds that the claimant [in the Barbados Beach Club case] was not unfairly dismissed.  On the facts of the case, there has been no age discrimination,”  Blackman declared.

“However, the tribunal would observe that the respondent was less than generous in giving notice to the claimant of the intention to rely on the attainment of the age of 65 as a sufficient reason for dismissal.  The claimant was entitled to one month’s salary in lieu of notice, and accordingly, the tribunal awards the claimant the sum of $5,000 and directs that this amount be paid within 30 days of this decision,” Justice Blackman ordered.
(emmanueljoseph@barbadostoday.bb)