The lack of action by Barbados Workers’ Union (BWU) personnel nine years ago sparked criticism by the Employment Rights Tribunal (ERT) on Thursday as the arbitration body threw out an unfair dismissal complaint filed by a former employee of Standards Distribution and Sales Inc.
Deputy Chairman of the ERT Kathy Hamblin said that the union had failed to act in a timely manner in seeking redress for Keith Alleyne almost a decade ago, even though he was depending on its representation.
In the end, though, she said the late filing of the appliance service technician’s complaint and the non-submission of relevant documents as he waited on his union to fight on his behalf, had resulted in his case of unfair dismissal case being thrown out.
Alleyne lost his job on July 12, 2013, after being employed at Standards Distribution and Sales Inc. for 13 years. He was dismissed for borrowing a disused washing machine pump from a scrap pile on Standard’s premises, to use on a washer he was fixing off-site.
Alleyne submitted a complaint of unfair dismissal to the Chief Labour Officer on January 23, 2014, more than six months after the date of his termination and almost three-and-a-half months after the expiration of the three-month statutory limitation period, which is counted from the effective date of termination.
The matter was referred to the ERT on March 10, 2014, and even though Alleyne was invited to submit his claim form and supporting documents, nothing was sent for more than eight years. It was only when a notice was given of abandoned claims via a newspaper that the forms were sent on July 28, 2021.
However, Hamblin explained that the documents, which contained no pay slip, letter of termination, contract of employment, employee handbook or any other documents to support his claim, did not adequately address the circumstances of Alleyne’s employment and dismissal or the nature of the relief he sought.
She pointed out that there was an “escape clause” which extends a lifeline to a claimant whose claim is filed out of time, but Alleyne’s legal counsel Ensley Grainger never invoked it.
Grainger had argued that his client had decided to go to the Chief Labour Officer five months after his dismissal after not hearing from the BWU which he had been “relying on solely to fight his case”.
Alleyne testified that the BWU did not discuss the filing deadline with him at any time and that it was not “until the ending” when he realised that he “was not getting any mileage” that the union informed him he could file a complaint with the ERT.
He also stated that there had been four or five meetings between the BWU and the local and Trinidadian representatives of Standards Distribution and Sales, but nothing had changed regarding his employment status.
Handing down the ruling virtually on Thursday, Hamblin accepted that the reason for Alleyne’s failure to file his complaint in time was his reliance on the BWU to secure his reinstatement.
“The onus was on the BWU as the claimant’s representative to ensure compliance with the limitation period of which they ought to have been aware,” she said, although noting that Alleyne’s conduct of this matter “demonstrates a complete lack of diligence and interest”.
“The claimant was represented in the initial stages by the skilled personnel of the BWU, who ought to have known that there is a three-month limitation period for presenting a complaint to the Employment Rights Tribunal…. There is nothing in the [Employment Rights] Act which prevents the employee or his representative from presenting a complaint to the Chief Labour Officer even though he has not yet exhausted all internal appeals.
“Once filed, a complaint can be held in abeyance pending negotiations between the parties and withdrawn if the parties reach a mutually satisfactory compromise. The BWU ought, in the circumstances, to have taken appropriate, timely, measures to preserve the claimant’s position. They failed to do so to the detriment of the claimant. The claimant’s remedies, if any, are against the Barbados Workers Union, not against the respondent. The complaint is accordingly dismissed.”
Earlier in the proceedings, the ERT deputy chairman also chastised Standards Distribution and Sales Inc. for its continued failure to respond to any of the tribunal’s correspondence on the pending claim, calling its behaviour toward the tribunal and its secretariat “nothing short of contemptuous”.
“At no time in the decade-long history of this matter is there any record of the respondent having afforded the tribunal the courtesy of a response to any of its correspondence. The discourtesy continued through the hearing of this matter when the respondent refused to comply with case management orders,” she said.
The company had argued that given the length of time that had elapsed since Alleyne’s dismissal, it was “challenged” as it relates to “making contact with key witnesses” and “retrieving evidence”.
Urging that Alleyne’s complaint be dismissed, it said the delay in the tribunal hearing the matter “operates to the company’s irremediable prejudice” and if pursued, it would constitute an abuse of the tribunal’s process as prescribed under the Employment Rights Act.
In response, Hamblin said the tribunal considered the claim by the company that it was unable to locate key witnesses and had no record of the matter “to be equally dubious”.
“Further, the respondent knew the claimant’s complaint was pending and ought to have taken appropriate measures to marshal and preserve its evidence, rather than to destroy or conceal it. If the claimant had overcome the limitation hurdle, the tribunal would have rejected the respondent’s claim of prejudice, which was of its own making, and proceeded to hear the complaint,” she added.
jeniquebelgrave@barbadostoday.bb
