Unfair Dismissal and Mitigation of Loss.
Section 35: Order for re-engagement
(1) An order for the re-engagement of an employee is an order, on such terms as the tribunal may determine, that the employee be engaged by the employer, or by a successor of the employer, in
employment comparable to that from which the employee was dismissed or in other suitable employment.
(2) On making an order for the re-engagement of an employee the tribunal shall specify the terms on which the re-engagement shall take place, including
(a)the identity of the employer;
(b)the nature of the employment;
(c)the remuneration for the employment;
(d)any amount payable by the employer in respect of any benefit which the employee might reasonably be expected to have but for the dismissal (including arrears of wages) for the period from the date of termination of employment to the date of re-engagement;
(e)any rights and privileges, including seniority and pension rights, which must be restored to the employee; and
(f)the date by which there must be compliance with the order
Guidelines For The Ordering Of Re-Instatement Or Re-Engagement
Under s.33(3) in exercising its discretion under subsection (2) of s.33 the tribunal shall first determine whether to make an order for the re-instatement of the employee and, where the tribunal determines it is not appropriate to make such an order, the tribunal shall determine whether to make an order for re-engagement.
(4)In determining whether to make an order for re-instatement of the employee or for his re-engagement and, if the latter, on what terms; the tribunal shall take into account
(a) whether the employee wishes to be re-instated or, in the case of re-engagement, any wish expressed by the employee as to the nature of the order to be made;
(b) whether it is practicable for the employer, or his successor, to comply with an order for re-instatement or re-engagement; and
(c) where the employee caused or contributed to some extent to the dismissal, whether it would be just to order his re-instatement or re-engagement….. and if the latter, on what terms.
(5)where neither an order for the re-instatement of an employee nor for his re-engagement is
made, the tribunal shall, in accordance with section 37, make an award of compensation for unfair dismissal to be paid by the employer to
It is clear that the tribunal has a wide discretion in their consideration whether or not to order re-instatement or re-engagement. This becomes a question of fact. A re-instatement order requires that the employer shall treat the Claimant in all respects as if he had not been dismissed.
The order for re-engagement is more flexible and this is where it must be made on such terms as the tribunal decides.
The statute provides that re-instatement must be considered first and then re-engagement only if there is a decision not to make an order for re-instatement. Three factors the tribunal must consider in making a re-instatement order are:
(a)whether the employee wishes to be re-instated or re-engaged s.33(4) (a)
(b) whether it is practicable for the employer to comply, s.33(4)(b)
(c) where the employee caused or contributed to his dismissal whether it would be just to order his re-instatement or re-engagement.
Practicability is an important factor the tribunal must determine especially where the employer satisfies the tribunal that it is not practicable to comply with the order for re-instatement
In Coleman v Magnet Joinery Ltd.  ILR 46 at 52 Stephenson LJ stated that practicable means “capable of being carried into effect with success”.
The Tribunal, in considering whether to make a re-instatement order, must exercise its judgment on the practicability of the employer’s compliance with the order as a provisional determination and must also make a prospective assessment of the practicability of compliance and not a conclusive determination of practicability. See McBridge v Scottish Police Authority UKSC 27 at par 37 per Lorde Hodge. At para 34 the Lord Justice made the telling point in relation to what is re-instatement. He said,“It is the contractual rights, the terms and conditions of employment which must be re-instated and the rights and privileges (such as seniority and pension rights) which must be restored to the employee under a re-instatement order.”
A tribunal therefore has no power to order re-instatement in terms which alter the contractual terms of the employee’s employment.
With regard to terms of guidance for the tribunal, when making an order for re-instatement, Hodge LJ at para 38 stated, it is sufficient if the tribunal reasonably thought that it was likely to be practicable for the employer to comply with the re-instatement order.
Although the tribunal must consider the two orders carefully in light of the circumstances of the case, it is important to note that,
“Tribunals are not required to decide every point raised by the parties, provided that the central issues are addressed”. See Bristol Airways PLC v C Valencia  UKEAT/0056/14 per Justice Simler, DBE
Agreements to re-instate or re-engage are relatively rare since a decision by a party to terminate the employment relationship is usually one where the party is unwilling to retract its decision. Tribunals recognize that in practice little purpose is served by forcefully re-uniting an employer and former employee in circumstances where they are unlikely to be able to rebuild the necessary relationship of trust and confidence: See The Employment Tribunals Handbook: Practice, Procedure and Strategies for Success by John-Paul Waite, Alan Payne with Alex Ustych p. 246
It was clearly demonstrated from the evidence taken in this matter that the practicability of re-instatement or re-engagement of the complaints at this time is too remote given the reason for the implementation of the redundancy measures in the first place; it is our view that there would have to be an adjustment to the policy articulated by the Government through the Circular No.1/2014, M.P. 6205 vol. 1T3 for re-instatement or re-engagement to be practicable. And even though the complainants expressed a wish to be re-instated, an order for re-instatement or indeed re-engagement would, in the circumstances, be therefore nugatory.
This being the case, the Tribunal must look to the award of damages pursuant to the ERA as a means of compensating the Claimants.
In accordance with s.37 of the ERA where neither an order for the re-instatement or re-engagement is made pursuant to that Part, the Tribunal shall make an award of compensation, determined in accordance with this section, to be paid by the employer to the employee.
By s.37(2) the amount of compensation to be awarded under
(a) Subsection (1)(a), shall be calculated in accordance with the Fifth Schedule;
(b) Subsection (1)(b), shall be such amount as the Tribunal thinks fit having regard to the loss sustained by the employee as a result of the failure to comply fully with the order; and
(c) Subsection (1)(c), shall consist of
(i)an amount calculated in accordance with the Fifth Schedule; and
(ii)except where this sub-paragraph does not apply additional compensation in the appropriate amount.
(3) Subsection (2)(c)(ii) does not apply where the employer satisfies the Tribunal that it was not practicable for him to comply with the order for re-instatement or re-engagement
(4) In subsection (2)(c)(ii) “the appropriate amount” means not more than 52 weeks’ wages as the Tribunal thinks fit having regard to the circumstances of the case.
It is therefore worthy of note that compensation must be made in accordance with the Fifth Schedule against the Statutory restriction that a maximum of fifty-two (52) weeks’ wages is the limit to the sum which may be awarded.
In accordance with the Fifth Schedule, where neither re-instatement or re-engagement has been made, the award made by the Tribunal shall consist of the aggregate of the following amounts:
(1) A basic award in accordance with the following table. In the table “period” means the period of continuous employment of the employee:
(a) where the period is less than two years, but subject to section 27(3): 5 weeks’ wages;
(b) where the period is two years or 2½ weeks’ wages for more but less than ten years: each year of that period;
(c) where the period is ten years or more but less than 20 three weeks’ wages for each year: ear of that period;
(d) where the period is 20 years or more but less than 33 3½ weeks’ wages for years: each year of that period.
For the purposes of sub-paragraph (2)(b), (c) and (d), parts of a year not amounting to a complete year shall not be counted.
Any continuous employment beyond 33 years shall not be counted.
The amount determined in accordance with the rules set out in sub-paragraph (2) to (4) shall be reduced by the amount of
(a)any severance payment paid by the employer to the employee under the Severance Payments Act in respect of the same dismissal; or
(b)any payment made by the employer to the employee, whether in pursuance of the Severance Payments Act or otherwise, on the ground that the dismissal was by reason of redundancy.
It is therefore now the duty of the employer NCC to apply the formula set out in the Fifth Schedule of the ERA in order to compensate the affected employees, taking into account the several categories under which they fall.
The statute however also empowers the Tribunal to exercise its discretion by making an additional award, not exceeding 52 weeks wages, having regard to the circumstances of the case. The Tribunal must nevertheless be cognizant of the requirement mandated by statute that in accordance with s.36, a dismissed employee has a duty to mitigate his loss.
The principles involved in the act of mitigation will now be discussed.
Unfair Dismissal And Mitigation Of Loss
It is an established principle of law that an employee who has been terminated from his employment has a duty to mitigate his loss. This obligation to mitigate requires affected employees to take reasonable steps to limit their loss by looking for other employment. The Claimant has a duty to mitigate that loss as far as possible: Scottish and Newcastle Breweries PLC v Halliday  IRLR 291 EAT. However the burden is on the employer to prove that the claimant has failed to mitigate his loss: Fyfe v Scientific Furnishing Ltd.  IRLR 331 EAT.
In accordance with the duty to mitigate financial loss, Section 36 ERA provides that, in calculating for the purposes of section 34 or 35 any amount payable by an employer, the Tribunal shall take into account, so as to reduce the liability of the employer
(a)any sums received by the employee in respect of the period from the date of termination of employment to the date of re-instatement or re-engagement by way of wages
(i)in lieu of notice or ex gratia payments paid by the employer; or
(ii)paid in respect of employment with another employer,
and such other benefits as the Tribunal thinks appropriate in the circumstances; and
(b)any other mitigating circumstances;
Norman Selwyn in Selwyn’s Law of Employment 16th ed. P 504 posits that in some cases, it may well be reasonable for the employee to become self employed and this should not be held against him, when weighed
against his employment prospects generally. So that in Gardiner-Hill v Roland Berger Technics Ltd.  IRLR 498 it was held to be reasonable for a 55 year old Managing Director to pursue his own business.
In such case, the costs of setting up another business would form part of the claim.
Reasonableness seems to be the crucial factor with respect to mitigation. John-Paul Waite et al, The Employment Tribunals Handbook: Practice, Procedure and Strategies for Success at p 359 point out that,
“The extent to which, if at all a Claimant is expected to accept lesser paid work will depend upon what in the circumstances, a Tribunal considers is reasonable.”
The authors further argue that,
“Where, however the job is in the same bracket, they may be expected to accept the position if there is a decrease in pay.”
The duty to act reasonably was highlighted by Sir. John Donaldson in Archbold Freightage Ltd. v Wilson  IRLR 10 where he states,
“….to act reasonably and to act as a reasonable man would do if he had no hope of seeking compensation from his previous employer. It follows from that that he should accept alternative employment if, taking account of the pay and other conditions of that employment it is reasonable so to do.”
However, in light of the circumstances surrounding mitigation, the Tribunal must look at the conduct and intentions of the claimants to determine whether the conduct has been reasonable. There has been no evidence of unreasonable conduct presented before the Tribunal. In addition, there has been no evidence produced by the NCC before the Tribunal to show that the claimants failed in their duty to mitigate their loss. In fact, Miss. Lynch gave evidence that she has been trying without success to find a job. As such, the Tribunal in accordance with its statutory duty makes an award of 52 weeks as adequate compensation in the circumstances.
The manner by which there should be payment of this award shall be left to the NCC and the workers’ representatives, NUPW, for negotiation. The Tribunal must be informed of the outcome.
The Case Of Mr. Anderson Chase:
The case of Mr. Anderson Chase was brought before the ERT through the representation of his Union the Barbados Workers Union (BWU) Case ERT/2014/063. It arose out of identical circumstances brought about by the decision taken by the NCC to act in compliance with the policy initiative of Government set out in the Circular No. 1/2014 MP 6205 Vol. IT3.
On 13 April 2014 Mr. Chase received a letter dated 2014-04-25 from the General Manager of the NCC informing him that due to the severe economic challenges facing the country, the Government of Barbados had decided on a retrenchment programme which of necessity had to affect public servants including employees of NCC. He further informed him that his services would be terminated from 30 April 2014.
The Complainant Mr. Chase gave evidence before the Tribunal stating inter alia:
i. He commenced his employment with the NCC on 4 June 2007.
ii. That employment came to an end on 30 April 2014.
iii. He was employed as a range warden.
iv. His gross earnings were $2,221.88 per month.
Mr. Chase’s Claim
Mr. Chase claims on behalf of himself and the 25 other employees, members of the BWU, who have an interest similar to his and who were made redundant from the NCC, that they were unfairly dismissed.
The main contention for the claim of unfair dismissal was that the NCC, the respondent, failed to apply the approved LIFO method for termination in an equitable manner; it is their view that LIFO was applied arbitrarily; those employees who were kept on after the terminations were effected resided in a specific geographical area.
The Claimants also allege that:
a) The NCC failed to give to the complainants or their representatives any adequate prior warning of redundancy;
b) it failed to carry out the consultation required under s.31(6)(b) of the ERA;
c) it failed to supply the claimants or their trade union recognized for the purpose of bargaining on their behalf with a statement of the reasons for and other particulars of the dismissal (sic); and
d) it refused to explore other avenues through which it might have been able to mitigate the adverse affects of the dismissal.
The respondent maintains that it had complied with the provisions of the ERA and it was merely carrying out the mandate which Government had ordered pursuant to the Circular No. 1/2014 MP 6205 Vol. I.T3. The termination of the complainants was due to redundancy.
Because of the peculiar nature of this case and its counterpart, the case of Miss Cutie Lynch, the two of them being founded on identical facts, the Tribunal does not consider it necessary to enter into a discussion of those issues which were given comprehensive analysis in the Cutie Lynch Case. The Tribunal has therefore re-applied the analysis and conclusions arrived at in respect of the issues involving redundancy, consultation, LIFO, re-instatement and re-engagement, compensation and mitigation of loss to this case.
Support for this approach may be found in the decision of: British Airways PLC v Mr. C. Valencia, UK, EAT/0056/14 where the Court stated per Mrs. Justice Simler DBE “Tribunals are not required to decide every point raised by the parties, provided that the central issues are addressed.”
In respect of the discussion on redundancy and the position as it relates to the Complainant Anderson Chase, counsel for the tespondent raised the argument that “there might have been a redundancy by reason of the term of his contract.” He went further to submit that “there is nothing in the law governing the NCC which stipulates that a person serving in a pensionable post cannot either become redundant or whose services cannot be terminated in that post, in so far as the post is abolished in good faith.” In support of this proposition counsel cited Winton Campbell v AG (Barbados) 2008 CCV Appeal No. CV2.
The Tribunal finds this argument fanciful in that the situation which may give rise to a redundancy is clearly spelt out by the ERA at s.31. In addition, the Winton Campbell case was a matter founded on principles of public law which fall outside the scope of the ERA.
With regard to the issue of re-instatement and re-engagement the complainants and Counsel on their behalf made the unambiguous plea for re-instatement across the board; the Tribunal was left in no doubt that re-instatement was the desired remedy.
In the case of Cutie Lynch, the Tribunal stated the position in respect of re-instatement namely, that the remedy is only worthy of serious consideration where it can be practicably enforced. The Tribunal therefore must repeat the position that the termination of the employees was brought about in the first place by the stringent economic conditions that were set out in the Circular No. 1/2014, M.P. 6205 Vol. 1.T3. No evidence was placed before the Tribunal that would lead to the conclusion that re-instatement would be a practicable option worthy of consideration at this time. The complainants like those in the Cutie Lynch case will therefore have to rely on the remedy of compensation in accordance with the ERA.
The Tribunal rules that the complainants in this case must be compensated in identical manner to those in the Cutie Lynch Case, in accordance with the Fifth Schedule, ERA. The NCC and the affected employees must therefore get together with their union representative BWU to finalise the process of compensation and inform the Tribunal accordingly.