Bank must pay

A Bridgetown commercial bank has until the end of next month to pay a former senior employee well over a quarter of a million dollars in compensation for unfair dismissal,.

The decision was handed down this morning by Chairman of the Employment Rights Tribunal (ERT), former High Court Judge Christopher Blackman, QC in the case in which former Acting Senior Settlement Officer Debra Brathwaite was unfairly fired on February 8, 2016 by First Citizens Bank Barbados Limited.

“The respondent First Citizens Bank Barbados Limited is ordered to pay the claimant the sum of $303,570.29 by 31 October, 2019,” Blackman declared, while stating that the ruling was the unanimous decision of the three-man tribunal. Industrial relations experts John Williams and Ulric Sealy.

At the close of the hearing on July 30, 2019, the ERT held that Brathwaite had been unfairly dismissed by the bank with Blackman promising to give reasons this month for its judgment and to reveal the level of compensation being awarded to her.

Brathwaite had asked to be awarded damages instead of reinstatement or re-engagement.

Characterising Brathwaite’s dismissal as summary, the tribunal’s head told an audience of retired trade unionists and other interested parties at the Labour Department’s Warrens Office Complex that: “Section 22 (3) (c) of the Act [Employment Rights] provides that two and one-half months’ notice is required on the termination of an employee where the period of continuous employment is 15 years or more. At the time of dismissal, the claimant was paid $4,338.32. However, there was a two per cent increase on that salary arising [from] a collective agreement concluded with the Barbados Workers’ Union (BWU) to cover the period January 1, 2013 to December 31, 2018.

“As a consequence, the claimant’s revised gross salary at February 8, 2016 was $4,425.09. All our computations are based on that amount,” Blackman added.

The claimant was terminated after 28 years with the bank, when she was found to have used its internal electronic information system to initiate an automatic transfer of $500 monthly from her personal chequing account to her personal savings account between 2013 and 2015.

The evidence revealed that such action contravened section 5.10 of the bank’s Handbook of Employee Policies, which stipulates: “Any employee in breach of the policy on processing transactions to their personal account (s) will be subject to disciplinary action, up to and including dismissal.”

But the tribunal head observed that the former senior staffer had pleaded guilty to breaching the policy and had apologized for her action, something he contended her employer ought to have considered as mitigating against her dismissal.

“In the civil justice system, an early admission of guilt or responsibility, mitigates against the imposition of the most extreme sanction and the tribunal urges employers to give recognition to this principle in the adjudication of matters,” he recommended.

The former High Court Judge also gave another reason for ruling in favour of the ex-bank employee, noting that if the only irregularity had been the failure of Charles Gill of the Operations Risk Department to provide a copy of an August 4, 2015 report before the internal hearings, the dismissal may have been fair.

Gill was the original investigator to the Disciplinary Panel within the bank and the one who held a meeting with the claimant on August 4, 2015 to enquire about the automatic transfer and her awareness of the bank’s policy governing employees’ transactions to their own accounts.

The tribunal chairman told the gathering which included the claimant, that she informed Gill she was not aware of the bank’s policy and while he promised to provide a report of their meeting, he never did.

Blackman pointed out that even though Brathwaite was unaware of the bank’s policy, she was made aware of the accusations she had to face and cited two similar court cases as precedence.

The chairman listed three other occurrences which he said left him and his fellow commissioners with no alternative but to hold that the “procedural irregularities” caused the complainant’s dismissal to be unfair.

He said the occurrences were:“The conflation of the Investigative Committee [of the bank] with [its] Disciplinary Panel; the addition of Charles Gill, the original investigator to the Disciplinary Panel; and the reversion to an investigative committee to dredge up new charges in the absence of the complainant.”

“In light of the foregoing and taking into account that 41 months after dismissal, the claimant remains unemployed, the tribunal, pursuant to paragraph 1(b) of the Fifth Schedule, makes an award of $181,428.69. being $4,425.09×41. In the aggregate, the claimant is due $303,570.29 by the respondent,” the former High Court Judge ruled.

In providing some perspective to the case, he recalled that it was common ground that in 2013, the bank’s systems were unable to detect a transaction such as that initiated by Brathwaite.   But he said that by 2015, the system had been updated and consequently “caught” the cancellation which the claimant made of her automatic transfer when the acting appointment of Senior Settlement Officer ended.

Following the meeting with Gill in August 2015, a number of meetings were called by senior personnel of the bank, variously described as investigative or disciplinary, the ERT head stated.

The tribunal also heard that the first such meeting held on October 5, 2015, called an investigative committee, focused on the circumstances surrounding the closure of the auto transfer on the account.

Blackman added that the claimant, by letter dated November 11, 2015, was requested to attend a disciplinary hearing on November 17 and to respond to various charges including the setting up of standing orders for the recurring sum of $500 from one of her accounts to another.

She was also asked to respond to the charge that again on July 16, 2015 she logged into the system and cancelled the same standing order.

The ex-bank worker, who did not react to the outcome, was represented by Employment Relations Specialist Elsworth Young while attorney at law Michael Koeiman appeared for First Citizens Bank.

emmanueljoseph@barbadostoday.bb