Having initially been awarded over $300 000 by the Employment Rights Tribunal (ERT) for her unfair dismissal, a former banker will now only be entitled to just over one third of that amount.
But legal representatives for First Citizens Bank Barbados Limited have argued to the Court of Appeal that former Acting Senior Settlement Officer Debra Brathwaite, should not even receive the maximum total of $111, 078.88, because her dismissal was warranted.
The matter was heard this morning in Court No.1 of the Supreme Court by Chief Justice Sir Marston Gibson, Justice Rejendra Narine and Justice Jefferson Cumberbatch.
On September 12, 2019, the ERT ordered First Citizens to pay Brathwaite $303,570.29 for unfairly dismissing her on February 8, 2016. Included in that figure was a compensatory award.
However, on May 7, 2020, in handing down a judgment in the case of Chefette Restaurants Limited vs Orlando Harris, the CCJ slashed to $31 274, a compensation package of $106,000 that had been awarded by the ERT and subsequently reduced to $95 000 by the Court of Appeal.
It meant that $192,491.41 was deducted from Brathwaite’s award and the final figure of $111, 078.88 was included in the filing documents.
In describing both awards as excessive, the CCJ declared that loss of future earnings ought not to be included in awards for unfair dismissals.
Attorneys-at-law Queen’s Counsel Ramon Alleyne and Michael Koeiman – both of law firm Clarke Gittens Farmer – appeared on behalf of First Citizens while Queen’s Counsel Michael Yearwood and Nicole Roachford appeared for Brathwaite.
In appealing the decision, Alleyne said the ERT erred by ruling that the bank had unfairly dismissed Brathwaite.
She was terminated after 28 years with the bank when she was found to have used its internal electronic information system to initiate an automatic transfer of $500 monthly from her personal chequing account to her personal savings account and then to subsequently cancel the transfer between 2013 and 2015.
The action contravened section 5.10 of the bank’s Handbook of Employee Policies, which stipulates: “Any employee in breach of the policy on processing transactions to their personal account(s) will be subject to disciplinary action, up to and including dismissal.”
In its ruling, the ERT said the dismissal would have been fair had it not been for the “conflation of the bank’s investigative committee with its disciplinary panel; the addition of Charles Gill, the original investigator to the disciplinary panel and the reversion to an investigative committee to dredge up new charges in the absence of the complainant”.
Alleyne, however, argued strongly that the natural justice infringements highlighted by the ERT should not apply as they were unreasonable to implement for many employers.
He contended that it was unreasonable for the ERT to expect small businesses to have separate disciplinary and investigative panels as it was not stipulated by law to do so.
Additionally, he said, there was no evidence to support the claim that Brathwaite had been made to face other charges.
Alleyne also argued that the inability of Koeiman – who represented the bank before the ERT – to deliver closing arguments prejudiced the case.
In his submissions, Yearwood told the Court of Appeal that First Citizens had fired Brathwaite, who had worked there for 28 years with an unblemished record, for misconduct.
He said the punishment meted out to Brathwaite was not merited.
The Queen’s Counsel said even after his client confessed to unknowingly contravening the bank’s Handbook of Employee Policies, she was given the harshest possible treatment.
Yearwood argued that it was not best practice for the same persons to sit on both an investigative committee and a disciplinary panel.
He said while it would be accepted for small companies that had few staff, bigger companies such as First Citizens should not be held to the same standards.
He also pointed to the fact that while Brathwaite admitted to the wrongdoing on October 5, 2015, she was allowed to remain at work until being fired on February 8, 2016.
Yearwood said the fact she was not suspended during the investigation suggested the offence was not a very serious one.
After listening to submissions from both sides Sir Marston reserved a decision on the matter.