ERT says Nassco in the clear

A former general manager of one of this country’s leading car dealerships has lost his claim against the company for unfair dismissal.

In handing down the judgment this morning, Chairman of the Employment Rights Tribunal (ERT), retired Appeals Court Justice Christopher Blackman ruled that David King, having resigned his post with Nassco Finance Limited on April 2, 2014, could not successfully claim unfair dismissal.

“These proceedings by the claimant against the respondent are therefore dismissed,” declared the head of the three-member tribunal which met at the Warrens Office Complex, St Michael.

In giving background to the case and providing reasons for the tribunal’s decision, Justice Blackman said that King, who resigned after eight years as general manager, was required by his contract to give three months’ notice.

He reported that the former senior manager went on ‘garden’ leave immediately on his resignation and was paid up to July 2014 while continuing to enjoy the benefits of his contract which included a fully maintained company car.

Garden leave describes the practice whereby an employee leaving a job—having resigned or otherwise had their employment terminated—is instructed to stay away from work during the notice period, while still remaining on the payroll. The  practice is often used to prevent an employee from taking sensitive information, especially when they are very likely leaving to join a competitor.

King has contended that the Employment Rights Act allowed him to terminate his contract even by resignation with or without notice by reason of the conduct of his employer.

In his written statement and in further clarification under cross-examination, the former general manager said he became aware on March 31, 2014 of certain occurrences that appeared fraudulent to him and in which another employee of the company seemed to be implicated, the tribunal chair stated in his judgment.

King believed that that employee should have been fired immediately and consequently was “flabbergasted” to be told by the Managing Director Roger Hill “I really don’t know what due diligence you were doing and in any event I have to get S’s side of the story,” the retired High Court Judge said.

Justice Blackman, who was flanked by fellow commissioners Dr Hartley Richards and Frederick Forde, noted that the claimant was not satisfied with the responses or reactions from the managing director over the following days and formed the view that “my superior was entirely accommodating to the fraud”.

“As he was not willing to condone this behavior, he felt compelled to resign his job as general manager. As stated in paragraph 26 of his witness statement, Mr King then went to his office, wrote a letter of resignation dated April 2, 2014 addressed to the managing director and gave a copy to the Financial Controller and the Human Resources Manager. Less than 72 hours had elapsed from the ‘discovery’ of fraudulent activity on March 31 to the resignation on April 2,” declared the tribunal chair.

He said that the tribunal having heard and considered the evidence of the claimant had determined that there was no basis for reliance on Section 26 (1) (c ) of the Act, and that the matter should now be concluded without the need for the respondent company or Roger Hill to be heard.

Justice Blackman gave two reasons for this determination as he cited several case laws.

In the case of Greater Glasgow Health Board versus Mackay (1989) he referred to a matter in which an employee had an altercation with her superior. She stated she was leaving and then wrote a letter of resignation and delivered it to the department manager who accepted it.

He noted that presiding judge Lord Ross ruled that “it appears that her resignation bore all the hallmarks of a deliberate and conscious act…that she did not merely say that she was leaving but she took time to sit down and write a letter of resignation. That letter is well expressed and clear in its terms.”

Justice Blackman said in today’s judgment that the same can be said of Mr King’s letter.

“While unlike MacKay, Mr King did not seek to withdraw his letter, he has relied on the conduct of the employer provisions of the Act to support the contention for unfair dismissal.”

He drew his second reason from the text of the Commonwealth Employment and Labour Law by Corthesy and Harris-Roper which deals with constructive dismissal.

The ERT head said some examples of constructive dismissal include unilateral changes in the terms of the contract, bullying, harassment, verbal abuse and other such behavior which cut against the grain of good industrial relations or actions which undermine the relationship of trust and confidence.

“Against the observation that this area of law is fact sensitive and the absence of any evidence that the employer or its managing director pursued any of the behaviours mentioned above or made any serious breach of the claimant’s contract, the claimant has failed to prove that he was constructively dismissed,” Justice Blackman ruled.

“There was no dismissal, constructive or otherwise. The claimant chose to resign, may be prematurely, but that was his decision.  These proceedings by the claimant against the respondent are therefore dismissed,” he added.
(emmanueljoseph@barbadostoday.bb)