Several “grey areas” in the Employment Rights Act will require the nation’s highest court to clarify, the retired appellate judge who now chairs the quasi-judicial body overseeing workers rights has declared.
Queen’s Counsel Christopher Blackman, who became chairman of the Employment Rights Tribunal last August, said some parts of the law will require the Caribbean Court of Justice (CCJ) to help make clearer.
The clarity is expected to come from a case for wrongful dismissal brought against fast-food giant Chefette Restaurants Limited, which it has appealed all the way to the CCJ, the court of last resort. The justices in Port of Spain are expected to hear the case next month.
One such grey area was the tribunal’s ability to use its discretion when awarding damages under section 1B of the Act, the chairman indicated.
Referring to the case of former bank manager Debra Blackman who was awarded over $300,000 for being wrongfully dismissed, Blackman said: “The discretionary award under 1B is one of those that whether it is 26 [weeks], 52 [weeks] or even in the case of [Debra] Brathwaite 41 months, is one of those matters we are hoping will be ruled upon by the CCJ because the factors that are there are so varied that at the moment a number of different things can happen at different times.”
Blackman made the revelations while speaking at a seminar hosted by the Barbados Employment Confederation (BEC) on Lessons from the Tribunal at the UWI Cave Hill School of Business.
The chairman also said some axed workers were choosing to sidestep the Labour Department and come straight to the tribunal in hope of a big payday.
But again, owing to ambiguities in the Employment Rights Act, Blackman said, the Tribunal was limited in the damages it could award.
He said: “The bad news is that people don’t settle at the Labour Department because they hope to get a big lotto day before the Tribunal.
“I hope that eventually, the message may go forth not to wait for any lotto days from the Tribunal because there are some grey areas in the Act; there are some grey areas in the awards which I hope the CCJ will resolve when they take on the case of Chefette versus Harris, which is to be heard in December.
“There is a section in the Act that is fairly ambiguous and therefore when clarity is given to that hopefully we will know where we are, what the award should be and people will have more certainty in deciding how to go ahead with a settlement.”
Chefette had filed a legal challenge in the High Court, appealing a ruling made by the tribunal in April 2016, which awarded former Assistant Manager Orlando Harris $106,630.01 in damages, including 27 months retroactive wages and holiday pay.
The fast-food chain then lost its appeal in 2017, when the Court of Appeal dismissed Chefette’s appeal with costs to the respondent, ordering the firm to pay Harris $95,089.13 in compensation.