Former NUPW boss explores options as employment rights tribunal dismisses claim

Retired General Secretary of the island’s largest public sector trade union Roslyn Smith has lost the unfair dismissal claim she brought against her former employer.

The Employment Rights Tribunal (ERT) on Wednesday ruled that Smith was not unfairly dismissed by the National Union of Public Workers (NUPW), which had contended that she was retired when her contract of employment ended on the attainment of retirement age of 65 as stated in her letter of appointment dated November 4, 2015 which she signed.

But in response to the ERT’s decision, the embattled veteran trade unionist who had given some 47 years service to the union, told Barbados TODAY she has not yet decided whether to appeal the judgment delivered by tribunal chairman, retired High Court Justice Christopher Blackman.

“We are waiting until we get the written judgment and we will make a decision from there. I can’t speak right now because we don’t have the full written judgment. All I am saying is that when we receive the legal document, the decision will be made one way or the other,”

Smith declared.

The union had said that Smith’s retirement would have normally commenced on October 1, 2018, but the National Council decided to grant an extension of her employment to March 31, 2019 while she was on sick leave.

In handing down its decision today, ERT chairman Justice Blackman said while there were six substantive grounds on which Smith anchored her claim, the issue for determination was whether she was unfairly terminated or whether she was retired in accordance with her contract.

“The tribunal on consideration of the evidence given and the circumstances…together with the guidance provided by the legal authorities considered, are unanimously of the opinion that the claimant was not unfairly dismissed, but that her relationship with the NUPW came to an end by retirement according with the terms set out in the letter of appointment as general secretary dated November 2015 and modified by the sixmonth extension,” Justice Blackman ruled in his oral judgment.

The tribunal said it also considered the observations of English judge Lord Denning who ruled in a similar case that an unhappy employee should take quick action for a perceived wrong, else he would be taken to affirm the action.

“The failure of the claimant to take action for close to three years to challenge a letter which she said she had signed under duress, amounted to acquiescence and acceptance of the perceived offending provision of the letter,” Justice Blackman declared.

The tribunal also rejected a new claim submitted by Smith’s attorney Duana Peterson on March 6, 2023, that of age discrimination.

“This claim must be rejected for two reasons.

First, for the reasons previously given that notice of such a claim should have been made to the CLO [Chief Labour Officer] in July 2019, and second, that it is an abuse of process to make a new claim after both parties had closed their respective cases, and the only matter left outstanding was the filing of supplemental written submissions,” the tribunal head stated.

“The claims referred to the tribunal for unfair dismissal, and the several grounds specified in paragraph 14 of claim form 1 dated 12 October, 2020, are therefore dismissed,” he ruled.

Justice Blackman had earlier cited six substantive grounds on which Smith anchored her claims.

These grounds were: unfair dismissal, failure to pay the termination amount due, failure and, or refusal to provide a certificate of employment record, breach by the NUPW of the terms and conditions of her employment contract which did not provide for a retirement age, unfair dismissal while on certified sick leave in breach of Section 30 (1)(b)(i) of the Act [ERT], and unfair dismissal in respect of a complaint regarding the unauthorised use by the union president, of the NUPW’s credit card.

The ERT chair said that body has no jurisdiction to consider the claims concerning the use of the union’s credit card or unfair dismissal while on certified sick leave.

The three-member panel of commissioners that also comprised human resources expert Ed Bushell and veteran trade unionist Frederick Forde identified documentary evidence including a letter from Sagicor Life, to suggest that the former NUPW general secretary knew the age of retirement with the union was 65.

“It seems to the tribunal, having reviewed the several matters cited…the claimant had to be aware as early as 1994 of the letter from Sagicor Life Inc., fixing the retirement age at 65, and at the latest in October 2017, when there were discussions, albeit non-conclusive, about revising the retirement age to 67,” Justice Blackman said.

The retired Appeal Court Judge also referenced the minutes of a March 31, 2016 national council meeting of the union, which noted that councillors were informed that the chairman of that meeting wanted to insert age 65 as the retirement age.

“This shows that the claimant, at that time, knew that time that the retirement age was 65. and that a retirement age of 67 was only being proposed, but not yet established,” the chairman declared.

In the 29-page decision, the tribunal head told parties on both sides that they would have to bear their own legal costs.

King’s Counsel Larry Smith in association with Codie Hinds represented the NUPW whose president Kimberly Agard was quick to respond to today’s judgment.

“We want to thank the tribunal for the work that it has done in the case. We are pleased with the result. It is a chapter now that has been closed, a hurdle that we have overcome, and we will use this obviously as a valuable lesson for the future,” Agard told Barbados TODAY.

“We will look forward now to pressing ahead with charting the NUPW in a positive light.

This would have been one of the shadows that would have been casting a negative light on the NUPW,” she added.

The union president also said that one valuable lesson from the case was the identification by the tribunal of some “administrative flaws and practices that we know must be amended and changed after now that we have received the judgment.”

Agard added: “Some of these flaws would have been identified by Justice Blackman and in some cases he would have even issued warnings to us, as an organisation. It is now to take heed to those warnings and really do some examining of some of our practices.” emmanueljoseph@barbadostoday.bb