Company must pay employees who were made redundant without adequate consultation

A local jewelry retailer has been ordered to pay three former workers more than $62,000 in compensation for unfairly dismissing them on March 24, 2017.

World Gift Imports (Barbados) Limited, which trades as Little Switzerland, must pay Michelle Sonia Cox-Jordan, Cirleen Bascombe and Maria Liandra Yearwood the money in 30 days from today.

The ruling was handed down today by chairman of the three-member Employment Rights Tribunal (ERT) retired High Court Judge Christopher Blackman sitting at the Warrens Office Complex in St Michael.

Justice Blackman declared that Cox-Jordan, who joined the company on  February 19, 1996 and was an assistant manager when she was unfairly fired, must now be paid an additional $25,933, having already received  $74,127 in benefits that included the recovery of health insurance coverage.

Little Switzerland has contended that it made the three employees redundant because the retailer had to restructure the business resulting in the closure of a west coast branch for economic reasons.

The tribunal also ordered the company to compensate Bascombe $18,361, who it noted, like the other claimants was terminated without notice for the purpose of redundancy, the tribunal found.

The retired Appeal Court Justice said that she too, had already received additional sums of money from the jewelry firm.  He said her earlier payment amounted to some $37,000 which comprised  other benefits.

Bascombe who worked for Little Switzerland from April 3, 2006 as a sales consultant, was a member of the Barbados Workers’ Union (BWU).

Yearwood, the third claimant who was hired on February 19, 1996 as a sales consultant, is to get $18,049. She has already been paid an additional $19,309 by the Bridgetown jewelry retailer in various benefits

Albert Pollard, attorney for the claimants had submitted that even though the company admitted there were warning signs from November 2016 which caused the closure of the west coast branch, it failed to make the appropriate commercial or business decisions between November of that year and March the following year to discharge its statutory duty to consult with the former employees in a timely manner.

Pollard had also submitted that in the case of Cox-Jordan, a non-union member, there had been no consultation whatsoever as required by the Employment Rights Act.

He noted that with respect to the two union members, the consultation had occurred on the day of termination.

Justice Blackman then referred to the attorney’s characterization of the consultations as a sham, a position he appeared to support when he cited case law that dealt with a similar issue.

“In the context of this matter and having regard to the timelines of the consultation with the Chief Labour officer and even more so that with the BWU on the same day of the dismissal, we are constrained to adopt the language used by Peter Gibson, ‘the consultation must not be a sham,’” he declared.

“Accordingly for the reasons hereinbefore stated, the tribunal concludes that the respondent did not satisfy the requirements of Section 31 of the Act, and as a consequence, the claimants were unfairly dismissed,” Justice Blackman ruled.

The jewelry business had been relying heavily on the concept of special circumstances to justify dismissing the workers without early consultation.

Counsel for the company Alexandra Daniel submitted that there were special circumstances, which made it impractical to comply with the consultation requirements of the law.

Daniel cited the statement of witness for the company Ryan Callender who said the special circumstance was the nature of the business as it relates to security, competition and confidentiality and the inherent risks associated with the same.

The tribunal chair also expressed concern about the conduct of the former Chief Labour Officer Vincent Burnett in dealing with the early stages of the dismissal  process.

“The tribunal is concerned that during the consultation with the Chief Labour Officer and in the letter dated March 22, 2017, the respondent advanced a proposal that ‘we are unable to adhere to the six weeks consultation period as prescribed by the Employment Rights Act…to mitigate and insulate the adverse effects of the terminations, each affected employee will receive pay in lieu of the consultation period equivalent to six weeks’ to which the Chief Labour Officer gave either his explicit or tacit approval,” Justice Blackman stated.

“The tribunal is strongly of the view that the Chief Labour Officer had and has no authority to agree to any proposals to mitigate and insulate the adverse effects of the terminations,” he ruled.

He contended that as the Act imposes an obligation upon the Chief Labour Officer to use his best endeavours to achieve, by means of conciliation, a settlement of the matters raised by the complaint, a conflict would of necessity arise if approval, tacit or explicit is given to any employer’s suggestion for resolution.
emmanueljoseph@barbadostoday.bb