Former funeral home employee unfairly dismissed

A local funeral home has been ordered to pay one of its former employees more than $15,000 in compensation by the end of next month for unfair dismissal.

The judgment was handed down today by the Employment Rights Tribunal (ERT) in the unfair dismissal case brought by trade union leader Caswell Franklyn on behalf of Shikelia Johnson against Ian Griffith Mortuary Service.

Tribunal Chairman and former High Court Justice Frank Blackman, QC, said in delivering the decision that the funeral home’s termination would have been fair, had it complied with the statutory requirements of collective consultation before making a worker redundant.

The tribunal was told that Johnson refused to accept a reduction in her $540 per week salary to become the receptionist when her job as mortuary assistant was made redundant before she went on maternity leave.

The former employee, who had been working with the company for over six years, had therefore asked to be reinstated or re-engaged.

However, Justice Blackman said the three-member panel rejected that request, stating that it would not have been appropriate or practicable considering the nature of the relationship the woman had with her employer.

“Having regard to the small number of employees (seven) and the nature of the previous personal relationship which had existed between the claimant and the respondent, the tribunal is of the view that an order for re-employment whether by way of reinstatement or re-engagement, would be impractical,” the chairman said.

He cited a 1975 English case of a similar nature [Coleman v Magnet Joinery Ltd] which noted that where re-engagement of the unfairly dismissed employees, although possible, would have led to industrial strife. The Court of Appeal held that re-engagement was not practicable.

Executive Director of the Barbados Employers’ Confederation Sheena Mayers-Granville,who represented the funeral home, had argued that the intent behind the local legislation is for consultation to occur where significant numbers are impacted and not where a single individual is made redundant.

But Franklyn had submitted that certain consultations and actions are required before an employer may dismiss for reasons of redundancy, and that failure to comply with the statutory obligations rendered the dismissal unfair.

The tribunal head said when the claimant is entitled to two and a half weeks’ wages for each year where the period is two years or more, but less than ten years.

“The calculation is therefore 2.5 x 540.00 x 6 = 8,100.00.”

He said that in addition to that and in keeping with the relevant sections of the Employment Rights Act and in the circumstances of the case, “We order that the respondent pay the claimant 26 weeks’ wages, which equates to $14,040.00; a total payment of $22,140.00. From that sum must be deducted $6,453.18, which was paid to the claimant on termination; leaving a balance of $15,686.82.”
emmanueljoseph@barbadostoday.bb