CCJ to rule on whether Massy erred in firing employee

The Caribbean Court of Justice (CCJ) has reserved judgment in the wrongful dismissal case involving former Massy Stores Limited employee, Merton Forde.

Following submissions from both sides on Thursday, the CCJ—sitting virtually—advised the parties that the five-member panel of judges would deliver its ruling in due course.

Massy Stores is asking the regional court to overturn the decision of the Barbados Court of Appeal, which upheld a magistrate’s preliminary ruling. That ruling found Forde’s summary dismissal on the grounds of “substandard work performance” and failure to enforce company rules, policies and procedures despite verbal warnings to be wrongful.

But the company has advanced several grounds of appeal, including that the Court of Appeal applied the incorrect test for wrongful dismissal.

Massy is being represented by attorney Michael Koeiman, alongside Ashley Edwards and Dionne Walcott, while Tariq Khan appears for the respondent, in association with Mechelle Forde.

“This is a relatively straightforward appeal dealing with a rather narrow, but critical point of law, defining the scope, in our view, the cause of action for wrongful dismissal,” Koeiman told the CCJ judges.

Counsel for the appellant argued that recent case law in Barbados appeared to reflect a judicial trend towards leniency, which, in the court’s view, had broadened the traditional test for summary dismissal. He said the lower court in this matter had referred to what it called a “humanising Fatima”, suggesting that the issue was no longer simply whether the employee’s conduct was repudiatory.

According to the attorney, this development seemed to introduce a two-stage test: first, determining whether the conduct warranted dismissal; and second, whether it was serious enough to justify summary dismissal.

“Our position is that, properly understood, that is not the test,” Koeiman submitted, urging the court to review the law and “express an opinion for the guidance for all concerned”.

In response, Khan referred the court to the December 21, 2012 termination letter issued to Forde, submitting that it appeared to be a generic template rather than a document tailored to the specific circumstances of the case.

“It is as broad as throwing a net in the ocean to catch at anything that comes into that net,” he contended.

Khan was particularly critical of the portion of the letter that read: “This incident [the removal of rotten fish from the store] occurred, despite verbal warnings regarding inter alia.”

He described this section as disjointed and disconnected, arguing that unrelated events had been bundled together to justify the dismissal, without providing any substantive explanation or context.

Khan said he found this approach “disturbing”, noting that the letter did not clearly state that Forde was being dismissed for breaching a zero-tolerance policy. Instead, he contended, “it simply throws a number of things together”.

He also noted that there was no record of instances of verbal warnings.

“The appellant hasn’t been able to produce [any]. That is significant,” the attorney for the former Massy Stores worker submitted. (EJ)