The Barbados Beach Club Resort has been ordered to pay a former employee just over $18 000 in compensation for her unfair dismissal.
The all-inclusive resort at Maxwell, Christ Church must pay ex-porter and kitchen steward Carolyn Haynes within 28 days.
That was the ruling delivered on Wednesday by Deputy Chairman of the Employment Rights Tribunal (ERT) Kathy-Ann Hamblin.
Hamblin, an attorney-at-law, however said that Haynes, who was terminated on April 8, 2016 for fighting in the hotel’s kitchen two days before with fellow worker Rico Harte, “was part-author of her own demise”.
Hamblin, who headed the panel with commissioners Beverley Beckles, a trade unionist and Deighton Marshall, an employment lawyer, ruled that the altercation was more a mutual fight and not a situation where the claimant was an innocent victim.
The tribunal took note of attorney for Haynes, Keith Robertson’s position that his client’s conduct did not in any way prejudice or interfere with the hotel’s business.
However, Hamblin disagreed.
“The incident did not occur in the sand hole in St Andrew or on a rural construction site. It occurred in the kitchen of a hotel, allegedly within earshot and sight of visitors to the hotel. The incident could have had serious implications for the hotel’s image, and it had the potential to influence decision-making by those guests whose holiday memories included mayhem in the respondent’s kitchen,” the presiding ERT officer declared.
Hamblin also referred to Robertson’s submission that his client was not the aggressor and that he pointed to the height of her opponent and the fact that he is a man.
“Even though she claimed not to have landed a blow, that does not make the claimant any less culpable than Harte. On the claimant’s own admission, Harte did not strike her until she pushed back her hand in the face of the taller man, escalating what was up until then a war of words, to a physical altercation,” the ERT panel head said.
“It is the opinion of this tribunal, that a reasonable employer would have concluded that the claimant ‘disregarded the standards of behaviour which an employer has a right to expect of its employee by engaging in the altercation and causing a disturbance on the hotel’s premises. As such, her behaviour amounted to gross misconduct,” ruled Hamblin.
She said that accordingly, Barbados Beach Club was entitled to avail itself to the exception in the law which permits an employer to dismiss a worker.
However, it was the judgment of the ERT that the hotel failed to comply with a series of disciplinary procedures when it terminated Haynes, who gave 14 years’ service to the company.
“The law is pellucid. Absent a fair disciplinary process, even a justifiable dismissal is unfair. That counsel [for the hotel] could admit to the existence of so many procedural irregularities and still seek to defend the fairness of the dismissal is absurd.
“The tribunal holds that the respondent failed to meet the burden and that the claimant’s dismissal was unfair in all the circumstances,”
Hamblin ruled.
Among the breaches in the process was that the company did not inform the claimant in writing of its decision to dismiss her and therefore she was not in a position to appeal.
She was also not informed of her right to bring a friend or shop steward to a disciplinary meeting.
Earlier, the deputy ERT chair expressed grave concern about the quality of the evidence in the case and the length of time it took for this matter to be filed.
She noted that after seven years some witnesses could not recall various details, others had either retired, no longer employed by the company and in one case, a person who tendered a witness statement had died.
She said the long delays in filing cases continue to occur and blamed employers in most instances.
Hamblin said there are no penalties for such delinquencies and called for amendments to the employment legislation to address this and other shortcomings.
Meanwhile, attorney for the hotel Alair Forde told Barbados TODAY it was unlikely his client would appeal the judgment but said he would still seek confirmation.
Terry Bynoe, the spokesman for the claimant, was delighted at the ruling.
“I think it is a good verdict because for a long time in Barbados people that work with people getting unfair. They got some people that working with people do not know their rights, so the people take advantage of them. So I am happy to see this judgment,” said Bynoe, who is also the claimant’s brother and the one who filed the action against Barbados Beach Club.
emmanueljoseph@barbadostoday.bb
