The state-owned Barbados Agricultural Management Company (BAMC) has been ordered to pay a former manager more than $112,800 in compensation by September 30 for unfair dismissal.
The ruling in favour of ex-Agricultural Manager and Head of the Agricultural Department Dr Orville Wickham was handed down on Wednesday by Chairman of the Employment Rights Tribunal (ERT) retired High Court Justice Christopher Blackman.
Justice Blackman said the tribunal had to determine whether the BAMC had complied with Section 31 of the Employment Rights Act when it made Dr Wickham redundant in December 2018.
The tribunal rejected the company’s argument that it had consulted with the former manager as required by the Act when an employer is contemplating reducing its workforce by 10 per cent or any other significant number.
The judgment cited those provisions which stated that the consultation shall commence not later than six weeks before any of the affected employees is dismissed and shall be completed within a reasonable time; and that it shall be in respect of the proposed method of selecting the employees who are to be dismissed.
Justice Blackman again referred to the same law which also said that the consultation must relate to the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take place.
He explained that the Act also says where there are special circumstances which render it not reasonably practicable for the employer to comply with any of the requirements, the business is required to “immediately consult with the Chief Labour Officer and take all such steps towards compliance with the requirements as are reasonably practicable in all the circumstances”.
“The respondent has contended that in the circumstances, the claimant was consulted as Head of Department about the reduction in the Government subvention and the need for ‘a drastic reduction in wages and salaries’… The tribunal finds no merit in this argument,” Chairman Blackman ruled.
He said the claimant agreed that it was not a settled matter whether the age of 65 or 67 was the operative date for retirement for employees of state-owned enterprises.
“In any event he admitted that on attaining the age of 65, he was in receipt of a pension through Sagicor, on behalf of the respondent of $1200.00 per month and a reduced NIS pension of $1,800.00.
“The tribunal finds it incongruous that a claimant’s benefits under paragraph 1 (b) of the Fifth Schedule, as claimed in this matter, should almost equate to that of the basic award. Allowances are in essence part of the salary of the claimant,” the judgment stated.
Justice Blackman noted that as in the decision by the Caribbean Court of Justice in the Chefette unfair dismissal case, the CCJ did not give any guidance as to how benefits are to be computed.
He therefore ruled that in the absence of agreement by the parties as occurred in Michelle Cox-Jordan et al v. Little Switzerland, the tribunal has adopted a formula to determine the value of benefits under paragraph 1(b) of the Fifth Schedule.
The retired Court of Appeal Judge noted that the former BAMC manager’s monthly salary of $13,505.01 and allowances totalling $1,439.01, amounts to $14,944.02.
He added that this sum, multiplied by 12 equals $179,328.24 which is then divided by 52.
“The result of $3,448.62 is then multiplied by three (being the three weeks used earlier), and further by 12, being the number of years worked, resulting in a final figure of $124,150.32.
“The basic award sum of $112,195.47 is deducted from $124,150.32, to arrive at the sum of $11,954.85, the value of the allowances. The tribunal finds the medical claim appropriate and accepts the sum of $19,200.00 claimed,” the ERT chairman stated in his judgment.
“Accordingly, the tribunal awards to the claimant, pursuant to paragraph 1(b) of the Fifth Schedule, the sum of $31,154. 85. In the circumstances of the pension arrangements admitted to, the tribunal declines to make any award in respect of a pension to the claimant,” Justice Blackman said in his decision.
He concluded that the sum due to Dr Wickham is the aggregate of the basic award $112,195.47, benefits per 1 (b) of the Fifth Schedule of 31,154. 85, bringing the total to $143, 350.32.
He said this is less $30,493.15 with reference to the Fifth Schedule to the Employment Rights Act, thus resulting in an award of $112,857.17.
“The tribunal directs that the sum of $112,857.17 be paid by September 30, 2021. Each party to bear their own costs,” he concluded.
(emmanueljoseph@barbadostoday.bb)
