The Employment Rights Tribunal (ERT) today reinstated its decision in one of two unfair dismissal cases suspended on Monday due to a “missing” document the claimant alleged had been filed with the ERT back in March.
Returning to the case in which Anthony Herbert claimed he was unfairly dismissed by Berger Paints Barbados Limited on October 10, 2014, tribunal chairman, retired High Court and Appeals Court Judge Christopher Blackman in confirming the dismissal of Herbert’s claim for being wrongfully fired, said he had reflected on his decision to stand down the judgment on Monday.
While insisting that the tribunal does not have the document which Herbert contends was filed on his behalf but not served on his former employer, Justice Blackman also drew attention to the law which guides the filing of complaints.
He said the law requires that written submissions must be filed and served on the same day.
But the tribunal chair argued that even after 48 hours since the former Technical Sales Representative and his industrial relations representative Dwaine Paul of the Barbados Workers’ Union (BWU) had queried the unavailability of a document, the complaint still had not been served on Berger Paints as required by law.
“It is therefore rendered a nullity and the decision stands. The decision is reinstated,” Justice Blackman ruled.
In his decision delivered on Monday in the presence of Herbert and Paul, the tribunal dismissed Herbert’s claim that the paint company had unfairly dismissed him.
At the heart of the ruling is the period within which the claimant filed his complaint to the Chief Labour Officer after admitting he was terminated with immediate effect for reasons which the judgment did not specify.
“Section 32 (2) of the Employment Rights Act, 2012-9 requires that a complaint be made within three months of dismissal, unless it was not practicable,” the tribunal chairman said.
“That date would have been 9 January, 2015. It was not until 11 August, 2015, [that] the Barbados Workers’ Union (the BWU) made a complaint of unfair dismissal on behalf of the claimant, to the Chief Labour Officer,” Justice Blackman stated.
He said the tribunal has adopted the salient facts from the affidavits filed on June 26, 2018 by Human Resources Manager Marietta Alleyne and Sales Manager Shawn Prescod on behalf of the company and that was filed by the claimant on May 10, 2019 in so far as they relate to the issue for determination.
“The tribunal has not been concerned with the merits as to the fairness or otherwise of the dismissal,” the ERT head pointed out.
He noted the evidence of Alleyne who testified that she was privy to matters concerning the claimant’s commencement of employment, his conduct, a disciplinary hearing which took place and Herbert’s eventual termination.
“At a hearing before the tribunal on October 28, 2019, the parties were directed to file and serve written submissions as to whether the matter was filed out of time and whether the tribunal had jurisdiction to hear the matter. On March 11, 2020, the parties were further directed to file and serve written submissions on what was to be considered the effective date of termination,” Justice Blackman recalled.
“Arising from the foregoing, the issues for the determination by the tribunal are (1) the effective date of termination of the claimant by the respondent and (2) whether it was not reasonably practicable for the complaint to be presented before the end of the three-month period,” he added.
The retired High Court Judge said that in light of the claimant’s acknowledgment that he had been dismissed with immediate effect on October 10, 2014, the only matter now for determination is whether it was not reasonably practicable for the complaint to be presented in the stipulated time.
Justice Blackman noted that the essence of the company’s case is that the former paint company worker, acting through his BWU representative, was concerned with the pursuit of internal appeals, rather than an adherence to the provisions of the Employment Rights Act.
He stated that while the company does not dispute the chronology of events that followed Herbert’s dismissal, it rejected the claimant’s assertion that the “extensive” delays were not his fault, but the employer’s.
According to the judgment, the paint company even blamed the BWU for contributing to lateness in the claimant filing his complaint.
“Counsel [ for Berger Paints] further contended that pursuant to Section 42 (2) of the Act, that not only could the claimant have made the approach to the Labour Department while negotiations were ongoing, the BWU, as a body with the legal and working knowledge of the statutory limitation, could also have filed the complaint within the prescribed three-month period to preserve the claimant’s interest,” Judge Blackman said.
“In simple terms, the responsibility to ensure that there is compliance rests and remains with the dismissed employee or his designated representative. There is no purpose to be gained by blaming the Labour Department and moreso now, almost a decade after the Employment Rights Act has been passed,” he ruled.
“The tribunal further states that it has not been presented with any facts to warrant the exercise of the discretion to grant an extension of time for bringing the claimant’s unfair dismissal to the tribunal,” he declared.
“The claimant’s claim for unfair dismissal is therefore dismissed,” Justice Blackman ruled.
The chairman sat in this case with fellow commissioners Dr Hartley Richards and Frederick Forde.
The claimant was also represented by attorney at law Lesley Trotman while Sir Elliott Mottley, QC in association with Kimberley Moe and Ava-Marissa Lee appeared for Berger Paints.
emmanueljoseph@barbadostoday.bb
