Tribunal backs officer who refused transfer

The state-owned agency responsible for marketing this country’s crucial tourism product has been ordered to pay a former executive nearly a quarter of a million dollars in compensation.

This morning, the Employment Rights Tribunal (ERT) handed down the judgment in favour of former Director of Marketing for the Caribbean and Latin America Vicki Chandler who had claimed she was unfairly dismissed by the Barbados Tourism Marketing Inc (BTMI) on August 11, 2016.

Chairman of the tribunal, former High Court and Appeals Court Justice Christopher Blackman also ordered the BTMI to pay the $222,769 within 30 days of today’s date.

Justice Blackman noted that on October 30, 2019, the Government agency, through its attorney C. Anthony Audain, Q.C. conceded that Chandler had been unfairly dismissed and that her disciplinary hearing was procedurally irregular.

He said that Chandler, who previously worked with the then Barbados Tourism Authority (BTA) for two years as District Sales Manager in New York and 13 years as a Marketing Executive in the Barbados Office, was fired after refusing an offer to be transferred to the post of Director of Cruise in July 2016 with the BTMI.

The tribunal chairman recalled that the former senior employee was later informed by management that her refusal to comply with the reassignment was considered an act of insubordination.

Justice Blackman, who sat with fellow commissioners Ed Bushel and Frederick Forde, drew attention to the fact that the disciplinary hearing which was called to discuss Chandler’s “insubordination and breach of contract,” was chaired by the then Deputy Chairman of the Board, who also headed the Human Resources Committee.

“Section 33 of the Act [Employment Rights Act] provides for the remedies to be granted by the tribunal where it has found that the claim of the claimant is well founded.  Equally, in the case of an admission of liability by the respondent, the tribunal is similarly empowered to make the appropriate orders,” the ERT chair stated.

According to the judgment, the claimant had sought reinstatement to her former position as Director of Marketing, asserting that she believed there is a position suitable within her competencies at BTMI.

In citing the relevant legislative provision, Justice Blackman said the tribunal had to consider certain issues when determining whether to order reinstatement of the employee or re-engagement.

“The tribunal shall take into account whether it is practicable for the employers or its successor to comply with an order for reinstatement or re-engagement, as the case may be. The respondent, through its counsel has stated that there are no positions to which the claimant may be reinstated,” he pointed out.

After citing a series of similar cases and considering the practicability of Chandler’s request, Justice Blackman ruled that the tribunal would not order the BTMI to reinstate her or re-engage her.

He explained that where the ERT has not ordered reinstatement or re-engagement, the law allows it to make an award of compensation, while stipulating the amount.

“Paragraph 2 (2) (d) of the Fifth Schedule provides for a basic award of years three and a half weeks’ wages for each year where the period of continuous employment is 20 years or more, but less than 33 years. Accordingly, the amount of the basic award is $120,000 divided by 52×3.5=$185,769.05,” the tribunal chair ruled.

“In addition to the foregoing basic award, the claimant is entitled to an award in respect of the notice period.  Section 22 (3) (c) states that two and one-half months’ notice is required where the terminated employee has been in continuous employment for 15 years or more,” Justice Blackman declared.

He said that in this matter, the claimant was employed for over 23 years and her salary was $10,000 per month at her dismissal.

“The amount now due in respect of the notice is $10,000×2.5=$25,000.”

Justice Blackman said the tribunal also agreed with a claim by the former BTMI executive that she should be paid travel allowance compensation.

He said that she asked for $18,576, the company offered her $6,625 but the three-member tribunal awarded her the $12,000 in travel allowance for which her contract provides.

“In the aggregate, therefore, the respondent Barbados Tourism Marketing Inc is ordered to pay to the claimant Vicky Chandler, the sum of $222,769,” Justice Blackman ruled.

The tribunal also directed the BTMI to “rectify its breach” as soon as possible to establish and maintain a pension plan, notice of which was given to the former employee in her contract.  The contract said in part, according to the ERT head, that ‘a defined pension plan will be negotiated and will be addressed within the permissible legal timeframe.’

He noted that that timeframe was three years.

“Section 8 (2) of the BTMI Act provides that BTMI shall, within a period of three years from 2 April, 2014, provide for the establishment and maintenance of a pension fund for the benefit of the employees of BTMI. However, it appears that although three years have elapsed since the obligation to establish and maintain a pension fund, this has not occurred and that the BTMI is in breach of its statutory obligation,” Justice Blackman declared.

“The tribunal directs the respondent body to rectify its breach as soon as possible, and further in the circumstance that the respondent conceded that the dismissal of the claimant was unfair, she should be eligible for such pension arrangements as may be appropriate to the holder of the post of Director of Marketing, Latin America and Caribbean Affairs,” he ruled.

The tribunal chair also told both parties they would have to bear their own legal costs since there no provision in the Employment Rights Act empowering the ERT to make a costs order.

During the case management conference on February 4, 2019, the claimant was represented by Westmin R.A. James while Queen’s Counsel Faith Seale appeared for BTMI.  From then until now, the tourism marketing agency was represented by Audain in association with Brian Barrow.emmanueljoseph@barbadostoday.bb