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First Citizens ordered to compensate former bank worker for unfair dismissal

by Emmanuel Joseph
4 min read
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The Court of Appeal today ordered First Citizens Bank to compensate a former senior employee for unfair dismissal, but her payout will be less than half of what she was initially awarded.

The appellate judges significantly slashed the payout awarded to former Acting Senior Settlement Officer Debra Brathwaite, although unanimously upholding the 2019 ruling of the Employment Rights Tribunal (ERT) that she was unfairly terminated on February 8, 2016.

In September 2019, the three-member tribunal chaired by retired Appeal Court Justice Christopher Blackman ruled that First Citizens should pay Brathwaite $303 570 by October 31 of that year.

But the bank, through its attorney Ramon Alleyne, challenged the level of compensation before the Court of Appeal which has now agreed that the ex-employee should only be paid $119 477.

Appellate judges Jefferson Cumberbatch, Rajendra Narine and outgoing Chief Justice Sir Marston Gibson also introduced a precedent that there is no requirement to exclude a person who is investigating a disciplinary matter against an employee from also sitting on the internal panel hearing the case.

In its 2019 judgment, the ERT had cited the inclusion of Charles Gill, the original investigator on the Disciplinary Panel in Brathwaite’s case, and the merging of that entity with the Investigative Committee as one of the “procedural irregularities” that caused the complainant’s dismissal to be unfair.

Blackman had listed three occurrences which led the tribunal to that conclusion: “The conflation of the Investigative Committee [of the bank] 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.”

The bank had also appealed the ERT’s decision on the basis that it contained a paragraph 27 that highlighted the three procedural “errors”, stating that “but for” them the decision could have been fair.

The Court of Appeal today agreed with the bank that the purported errors did not amount to procedural unfairness.

It stated that it was not automatically unfair for an investigative and disciplinary panel to be manned by the same personnel. Similarly, whether to exclude an employee from an investigative meeting is a question for the employer’s discretion, the court ruled.

However, the appellate panel disagreed with the bank that paragraph 27 contained the full decision of the ERT on the question of unfair dismissal.

It noted that having taken into account procedural fairness, there remained to be considered the question of proportionality of the decision to dismiss, and the ERT had done so in subsequent paragraphs.

Brathwaite 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 between 2013 and 2015.

But the ERT chairman noted that she had pleaded guilty to breaching company policy and had apologised for her action, which her employer ought to have considered as mitigating against her dismissal.

The appellate judges considered that having regard to all the circumstances – her first offence of its kind; relatively unblemished record; no finding of dishonest intent; no financial loss to the bank as a result – the bank’s decision to dismiss Brathwaite was one no reasonable employer engaged in the same sector would have made, and the dismissal was therefore unfair.

The Court of Appeal also considered itself “free” to apply the “range of reasonable responses” test after the Caribbean Court of Justice (CCJ) decision in Chefette Restaurants Limited’s unfair dismissal case, but declined to find that the test is obligatory.

In that May decision, the CCJ ruled out the loss of future wages as a consideration for damages in unfair dismissal cases, as it directed the tribunal and the local judiciary as a whole, to examine the English and Australian decisions on compensation for unfair dismissal, where they would find some basic guidelines to avoid excessive awards.

Compensation for Brathwaite was revised as per that CCJ decision.

First Citizens Bank’s appeal was dismissed with costs for two attorneys, to be agreed or assessed in default of agreement.

Alleyne appeared in association with Michael Koeiman of Clarke Gittens Farmer for the bank, while Michael Yearwood represented the former bank employee.
emmanueljoseph@barbadostoday.bb

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