NAB worker wins unfair dismissal claim

The state-run National Assistance Board (NAB) has been ordered to pay a former employee more than $13,000 in compensation by December 31.

The ruling was handed down this afternoon by the Employment Rights Tribunal (ERT) following an earlier determination at a previous sitting that former Relief Home Helper Sherada Walters had been unfairly dismissed by the NAB on February 6, 2014.

The tribunal had undertaken to give its reasons for the unfair dismissal at a later date and had also deferred a determination of the compensation.

While acknowledging his client had won the case, General Secretary of the Unity Trade Union Senator Caswell Franklyn is still not happy with the remedies in the judgment, telling Barbados TODAY he may appeal “this bad and unfair ruling.”  The NAB has already filed an appeal in the local court.

In delivering the unanimous verdict of the three-member tribunal, Chairman and retired High Court Justice Christopher Blackman, QC, said the commissioners decided to make an award for compensation after recognizing that the claimant’s request for reinstatement or re-engagement would not be helpful to her in the circumstances.

“In the circumstances of the instant case, five years on, the principal characters at the National Assistance Board are the same as at February 6, 2014 when the claimant was dismissed,” the former Supreme Court Judge stated.

“During the hearings before us, neither at case management conference nor at the hearings, did we see any behavior that gave us assurance that either reinstatement or reengagement would be a success. We accordingly decline to make such an order,” he explained.

With this in mind, the ERT head said the tribunal was therefore obligated, under Section 37 (1)a of the Employment Rights Act to consider what award for compensation the employer should pay to Walters.

He said that same section of the Act provides for compensation to be calculated in accordance with the Fifth Schedule to the legislation.

“Accordingly, pursuant to s.37(c) (ii) and in the exercise of our discretion, we order that the respondent [NAB] pay the claimant 26 weeks’ wages, which amount to $13,094.64. The claimant is also entitled to the basic award provided for at paragraph 1 (a) of the Fifth Schedule,” the retired judge added.

He noted that at the time of her dismissal, the claimant’s salary was $503.64 per week and she had worked for just over six years.   

“The entitlement is 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 $7,554.60,” the chairman stated.

“The amount therefore due to the claimant is $20,549.24.  From that sum must be deducted $6,973.50 which was paid to the claimant as a severance payment, leaving a balance of $13,575,74,” Justice Blackman pointed out.

He said the tribunal also took note that on termination in February, the former NAB employee was paid the correct amount of money in lieu of notice.

“The respondent National Assistance Board is ordered to pay the claimant Sherada Walters the sum of $13,575.74 on or before 31 December, 2019,” he ruled.

The tribunal found that Walters was unfairly dismissal because the NAB failed to follow the correct procedures as provided for in the Employment Rights Act.

Some of the breaches outlined by the ERT chairman include the Board’s silence on the requirement to give an employee a written statement of the particulars of their employment and a note that specifies any disciplinary rules applicable to the worker.

Justice Blackman also said that the Act gives the employer an alternative mandate to make the worker aware of the Standard Disciplinary Procedure found in the Fourth Schedule to that legislation.

He also noted that the Board acted as if it were totally oblivious of the Act and in particular of the requirements of the Fourth Schedule.

“There was no hearing or pretence of a hearing before the dismissal as required by Section 29 of the Act, nor was there any written warning as to the likely consequences for not signing and returning [a] letter of January 1, 2014,” Chairman Blackman ruled.

During the hearing the panel of commissioners heard that Walters, who was hired on August 29, 2007 as a Relief Home Helper working three days per week, was dismissed on February 6, 2014 for “failure to sign contract[s] of employment”.

The evidence revealed that a sequence of events led up to that dismissal dating back to her appointment on September 1, 2011 to act as a full time, five-day home helper from that date until October 31 of the same year.

The letter appointing her also advised that the position was temporary and terminable with one week’s notice on either side.

Further evidence revealed that the former NAB worker received a letter on October 1, 2013, purporting to extend her contract, but on a three-day a week basis from that date until December 31 of the same year.

“That letter had a space for me to sign as accepting the change in my working conditions. I refused to sign the letter and carried on working on a five-day basis as usual,” Walters said in her witness statement which was referred to during the tribunal chairman’s judgment.

As he continued to refer to the events leading up to the claimant’s dismissal, the retired justice drew attention to two letters written to the former employee “seemingly” agreeing to allow her to work the five days a week until January 31, 2014.

He again cited the claimant’s written testimony which stated that when the final contract had expired, Human Resources Manager Lennox Vaughan asked her to sign another contract, but this time for three days per week.

Once more Walters refused to sign, according to the evidence. The tribunal heard that, in the presence of her union representative, the ex-NAB home helper was told by Vaughan not to report for work until the Board had met.

It was on February 6, 2014, according to the facts, that Vaughan invited the claimant to a meeting which she attended with her union representative. At that meeting, he presented her with a termination letter dated February 6, 2014, a cheque for $9,824.88 and a National Insurance Termination Certificate that gave the reason for dismissal as “failure to sign contract of employment”.

In responding to this afternoon’s judgment, trade union leader Senator Franklyn, who is representing the former NAB worker, said his client was now paying for a mistake which the NAB made.

“Yes, we won. But she was dismissed in circumstances where the NAB made a mistake, The people who made that mistake must be quite happy…because they made a mistake and the tribunal sided with them,” Senator Franklyn told Barbados TODAY.

“It is acknowledged that they made a mistake in the decision that the tribunal gave, but yet still their mistake was not reflected in the judgment. She was given a very miniscule award. This doesn’t bear any relation to the First Citizens Bank  [International Bank unfair dismissal case] where the young lady got payment for the time that she was off. She got a mere $13,000,” he lamented.

Describing the award as just a few months’ pay, the trade union leader said it is not fair to her.

“I will have to take instructions from her to seek to file an appeal in this matter because the other side has filed an appeal even before the decision was given. They appealed in August this year for a decision that was handed down today, the 26 November. So I don’t know what games they are playing. But the only person that is suffering is my client,” he declared.

In the notice of appeal – a copy of which has been obtained by Barbados TODAY – the NAB through its attorney Romain Marshall is challenging the unfair dismissal decision and is asking the Court of Appeal to set it aside.

The board is also requesting the court to order the former employee to pay the costs and expenses of the NAB in the appeal case. The board is basing its case on four specific grounds including that the tribunal erred in law in that it failed properly or at all, to interpret or apply Section (26) (1) (b) of the Employment Rights Act.

Another ground is that the tribunal acted in breach of the principles of natural justice by not allowing the parties to make oral and written submissions at the conclusion of the evidence, although it had informed both sides at the beginning of the hearing that they could do so.
emmanueljoseph@barbadostoday.bb