ERT commissioners differ on whether technician was constructively dismissed

A former employee of the Barbados Light & Power Company (BL&P) has lost his unfair dismissal claim against the firm.

In a 2-1 majority decision handed down Tuesday by the Employment Rights Tribunal (ERT), panel chairman Emerson Graham, Q.C., ruled against Edmund Bushell’s claim that he was constructively dismissed.

Instead, Graham and fellow tribunal commissioner Edward Bushell agreed with the BL&P that the electrical technician abandoned his job in December 2014 when he failed to turn up for duty on completion of his vacation.

According to the facts of the case as outlined by Graham, the ex-employee who served the company for 14 years, went on vacation after an application letter was approved for his leave to run from December 2, 2014 to December 22, 2014.

It was revealed that after Bushell never returned to the company, further correspondence passed between the parties during the final days of December 2014.

Among that correspondence was the technician’s claim that he was constructively dismissed and the company’s warning that if he did not report for duty on December 30, 2014 with some explanation of his absence since December 23, he would be held to have abandoned his job.

The facts also indicated that the ex-worker had argued that he was constructively dismissed because his former employer made sweeping changes to his conditions of work and that those changes were fundamental and affected him personally.

The tribunal rejected this assertion noting that there was back and forth correspondence between the parties in which an offer was made by the company to deal with the claimant’s matter at the level of the board.

“One may conclude that it was an offer to give the claimant a hearing at the highest level. It is true that the changes in conditions at the workplace were significant and the claimant was within his right to refuse to work with them,” chairman Graham stated.

He added, however: “What is also true is that an olive branch was handed to him by the respondent company. The claimant could not have known the outcome of that meeting and ought therefore to have accepted the offer or at least to have given a reason why he was not accepting it. To remain silent as the claimant did was in the view of the tribunal disrespectful and unwise.”

The tribunal also noted Bushell’s complaint that he could not work under the new conditions agreed to by the Barbados Workers’ Union (BWU).

“The claimant was a shop steward and part of the bargaining party negotiating new terms and conditions of work at the respondent company. He was no doubt privy to all that transpired at those meetings. He knew or ought to have known that the company gave the workers a deadline by which they should communicate their intention to part company with their employer or remain subject to the new terms and conditions,” the tribunal panel head declared.

“Vague references were made about the claimant taking a new job. The claimant was asked a direct question about that new job and the time it commenced. He did not give a direct response. The tribunal is of the view that the failure to give a direct response was deliberate and that the claimant recognized the consequences. Whatever the case the tribunal remains unclear as to when the complainant took the new job,” Graham ruled.

But in a dissenting judgment, commissioner Beverley Beckles was of the view that the former Light & Power Company electrical technician was constructively dismissed and was therefore entitled in accordance with the Employment Rights Act, to compensation of $107,720 which does not include pension and other applicable benefits.

In Beckles’ estimation, the award should cover notice pay of $6,463.20;  $45,242.40 in basic award  and 52 weeks’ wages amounting to $56,014.

“These equate to $107,720 prior to the inclusion of a sum to be calculated under 1(b) of the Fifth Schedule for pension and any other applicable benefits,” she stated.

She concluded that “Mr Bushell did not abandon his job. He was constructively dismissed.

“However, if Mr Bushell had abandoned his job, the BL&P were [sic] obligated to apply procedural fairness in dealing with Mr Bushell’s situation because the company opted to accept the employee’s repudiation of the contract. In this circumstance, the company failed to follow fair procedures,” Beckles contended in her dissenting decision.
(emmanueljoseph@barbadostoday.bb)