Bittersweet ‘win’

Attorneys in the unfair dismissal case brought against Chefette by a former employee and which got the final decision of the Caribbean Court of Justice (CCJ) today, are claiming victory on different fronts.

While the judgment found that Orlando Harris was unfairly dismissed by the fastfood chain, it was also substantially less than what was first awarded by the Employment Rights Tribunal (ERT) in 2016.

For Gregory Nicholls, who is representing Harris in association with Kashka Mottley and Demetrie Adams, the CCJ has cleared his client’s name and agreed with his contention that he had been unfairly dismissed by Chefette Restaurants Limited.

“This is a landmark decision on the law relating to unfair dismissal in Barbados and I am especially grateful for the opportunity to appear before our highest court to be a part of this process. I am also relieved that Mr. Orlando Harris can finally feel vindicated that the ERT, the Court of Appeal and the CCJ have all affirmed what he has been saying from day one, that is to say, that his dismissal by Chefette Restaurants was unfair and unlawful,” Nicholls told Barbados TODAY.

However, the attorney is describing the decision as a bittersweet moment for Harris considering that his compensation has been substantially reduced by the CCJ.

“This is unfortunate since because of his initial success, the ERT has followed suit and awarded lost wages as part of the compensation to employees who have been adjudged to have been unfairly dismissed,” he said.

“Those cases were not appealed. I’ve settled cases recently where lost wages have been part of the settlement based on the original ERT and Court of Appeal decisions in this case.  Being the first case has its advantages and disadvantages,” Nicholls pointed out.

“The CCJ has today determined that the basic award was ample enough to compensate Mr. Harris for his being unfairly dismissed and that there is no further compensation for lost wages in unfair dismissal matters in Barbados.

“So Mr Harris was almost like the proverbial mouse who had to go forward and bell the cat; but thankfully in this case, he did not lose his whole head and that he is still the victor in the final analysis with compensation under the basic award and his reputation vindicated,” the attorney declared.

He told Barbados TODAY that this decision will reverberate for a while and will affect all of the pending matters before the ERT and Court of Appeal.

“It will also call upon Government to reflect on whether the interpretation given by the CCJ accords with the policy of Government in industrial relations matters and the treatment of unfairly dismissed workers in Barbados; what amendments to the Act have to be made; whether the tribunal process needs to be given more support in terms of resources and facilities given the scope of the remedies available as determined by the CCJ,” Nicholls asked.

He said these are some of the pertinent considerations that will have to be resolved now the CCJ has interpreted the law of unfair dismissal under the Employment Rights Act.

He praised attorneys for Chefette Satcha Kissoon and Benjamin Drakes for being more than worthy adversaries and for the hard work they have put into shaping the law in this area.

“Many years later we will look back at all of the hard work done by the lawyers in this case and say that today is the day that we have advanced the law in a significant way,” Nicholls added.

In response to today’s CCJ decision, Kissoon told Barbados TODAY it was in line with what his client wanted.

“We are very pleased with the decision. It actually reflects exactly what we had hoped to achieve in bringing the appeal to the CCJ. Our primarily position was to stabilize the position and get an understanding of what the area is in relation to damages and that has been clarified,” Kissoon said.

“Our position has been that the awards given by the tribunal are larger than should be allowed. The CCJ characterized it as a strikingly large award and they have agreed with us, with Chefette, that the approach taken by the tribunal is incorrect; that the issue that needs to be considered is compensation for lost wages, but for other benefits that an employee has been able to prove in evidence that he has not been able to get,” the lawyer stated.

He agreed with his colleague Nicholls that the judgment changes the law in Barbados and is going to provide “exceptional guidance” to employers and employees in relation to this area.

Kissoon was also at pains to point out that Chefette did not take this case to the CCJ because it was concerned with the overall issue of unfair dismissal.

“That was a bit of an uphill battle. The reason why they took this matter to appeal was to ensure that the law was clarified in those areas which it now has been,” he stressed.

The Employment Rights Tribunal which engages three separate panels to hear cases was presided over by then deputy chair and attorney at law Kathy-Ann Hamblin who delivered the unfair dismissal judgment in 2016 in association with fellow commissioners Dr Hartley Richards for employers and Ulric Sealy who represented labour.