Jada Builders Incorporated ordered to compensate former maid who was unfairly dismissed

- by Emmanuel Joseph May 31, 2023

JADA BUILDERS INCORPORATED ORDERED TO COMPENSATE FORMER MAID WHO WAS UNFAIRLY DISMISSED

By Emmanuel Joseph

An 83-year-old amputee has been awarded more than $21 000 for being unfairly dismissed from Jada Builders Incorporated, with the Employment Rights Tribunal (ERT) saying the construction company had sent her home because of her age.
Former maid Pauline Wood, who was 75 years old when she lost her job at the St Peter-based construction company on August 27, 2015, must be paid the money by June 28.
Failing that, Deputy ERT Chairman Kathy-Ann Hamblin declared in the 10-page judgment, Jada would have to fork out an additional $1 305 starting June 29 and continuing for every month, or part thereof, that the award remained unpaid.
“The tribunal’s unanimous finding is that the undignified, verbal dismissal of the claimant with one day’s notice was unfair,” Hamblin said in the judgment delivered on behalf of fellow panellists, employment lawyer Deighton Marshall and trade unionist Ulric Sealy.
However, Jada’s human resources senior official Rene Springer hinted that the company could appeal the decision, asking Hamblin what she needed to do to challenge her ruling.
Meanwhile, head of the Unity Workers’ Union (UWU) Caswell Franklyn who represented Wood, who had a single leg amputation, said he was satisfied with the judgment.
Hamblin said the three-member tribunal believed Wood’s age, and not a slowdown in construction projects as initially stated by the company where she worked for 18 years, was the real reason for her termination.
She noted that Paul Lewis, who was then Human Resources Director, “unwittingly” made that admission when he asked the former maid if, when her employment ended on August 27, 2015, she was aware that her services “were being concluded as a function of your retirement from the company in accordance with your age?”
Stating that the claimant was aware that the company’s fixed retirement age for all employees was 66, Jada argued that Wood attained that age on April 12, 2006 but was allowed, at her request, to continue working for an additional nine and a quarter years.
The ex-employee had testified that one of her supervisors, Jerry Gooding, approached her on August 26, 2015, hugged her and told her: “Miss Wood, you are a good worker but after tomorrow we will have no work for you.”
The former maid also told the hearing that she had reported for duty the next day and worked her full shift but was never called back out to work.
Hamblin said there were two issues for the tribunal to determine in reaching a decision in Wood’s case. The first was whether Wood was entitled to the protection of the Employment Rights Act 2012-9, having long reached and passed the contractual age of retirement; and second, whether termination of her services with one day’s notice was unfair.
“It is the opinion of the tribunal that where, by mutual agreement between employer and employee, an employee is permitted to work beyond the statutory or contractually stipulated retirement age, in the absence of any statutory or other limitation, that employee is afforded the full protection of the Act. As such, the answer to the first question . . . is in the affirmative,” Hamblin said.
With regard to the second issue, the deputy ERT chairman pointed out that while the purported reason for the claimant’s dismissal raised a defence of redundancy, that was not specifically pleaded by the company in defending the claim.
Even so, she said, despite claiming a decrease in business as the basis for Wood’s dismissal, Jada did not cite any evidence of a reduction of its workload or of a concomitant reduction of its workforce by more than one person.
Furthermore, Hamblin said, there was no record of the number of persons who were impacted by the “slowing down of projects” or whether that number reached the statutory threshold of 10 per cent of the workforce to trigger the requirement for consultation with Wood six weeks in advance of the proposed date of dismissal.
“Similarly, there is no record of provision to the claimant’s union or the Chief Labour Officer of a statement of the reasons for, and the particulars of the dismissal, or of notification having been given to the Chief Labour Officer of any special circumstances which rendered it impracticable for the respondent to engage in the required consultation,” Hamblin, an attorney-at-law, ruled.
“It is the opinion of the Tribunal that the respondent has not demonstrated that the reason for the claimant’s dismissal falls within Section 29 (2) of the Act or that it was for ‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held’.”
In breaking down the monetary award granted to the former maid, the ERT spokesperson noted that with Wood’s weekly wage being $326.40 and she having given 18 years of unbroken service to the company, she was entitled to receive a minimum statutory notice of 10 weeks.
“The claimant complained that she was given one day’s notice of termination and received one week’s pay in lieu of notice. The respondent is ordered to pay the claimant the sum of $2 937.60 for nine weeks’ outstanding notice,” Hamblin ordered.
Given Jada’s failure to give adequate notice, it was also ordered to pay Wood $652.80 for two additional weeks’ notice.
“If the respondent fails to comply with the order set out…, the respondent shall pay the claimants a sum equal to four weeks’ wages for each month or part of a month during which the respondent fails to comply with that order,” Hamblin said.
She also ordered Jada Builders Inc. to pay the ex-employee $17 625 which represents three weeks’ pay for each of the 18 years she was employed by the construction firm.
“The fact that the claimant was past the respondent company’s retirement age when she was dismissed does not influence the calculation of the award payable to her by the respondent. The total sum payable to the claimant by the respondent is $21 216.00. The said sum shall be paid to the claimant on or before June 28, 2023,” Hamblin ordered.
She again expressed concern about the quality of the evidence coming before the Tribunal as well as the length of time it was taking parties to file relevant documents, and their failure to comply with orders of the ERT to lodge documents.
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