Construction firm employee awarded compensation for unfair dismissal

A former senior employee of construction company Markham Construction Limited has been awarded more than $6 000 in compensation after the Employment Rights Tribunal (ERT) found she was unfairly dismissed but rejected her claim that her pregnancy contributed to her firing.

But after the decision was handed down by ERT chair Vere P. Brathwaite at the tribunal’s Warrens Office Complex offices, attorneys on both sides claimed victory in the case, citing contrasting reasons.

The company, located at Newbury House, St George, said it terminated Allanna Hazell, a professional civil engineer, for “failure to efficiently and effectively execute given tasks”.

The tribunal found that the builder unfairly dismissed Hazell on November 29, 2017.

Hazell, who was present with her attorney, Ella Hoyos, when the ruling was delivered, claimed she was unfairly dismissed on two grounds: her inability to manage certain work areas; and her pregnancy, in breach of the Employment Rights Act (ERA).

But while the tribunal held that her dismissal was unfair, the three-member panel threw out her claim that it had anything to do with her pregnancy.

The panel, which included labour leader Dennis de Peiza and industrial relations consultant Deighton Marshall, granted the former construction company employee a basic award of $6 576 for unfair dismissal, but did not find any grounds to deduct any portion of it.

The tribunal also made no order as to costs.

Attorney Hoyos claimed victory regarding the tribunal’s finding that her client was unfairly dismissed, while legal counsel for Markham Construction, David Hamel-Smith, told Barbados TODAY that the company succeeded in having the commissioners reject Hazell’s allegation that she was terminated due to pregnancy.

 

Hamel-Smith said the company conceded the ex-worker’s unfair dismissal claim, but maintained its position that pregnancy was not the reason.

Hoyos, on the other hand, cited the company’s failure to provide the tribunal with her client’s personal files, which she said reflected the firm’s poor governance structure.

These two issues were addressed in the tribunal’s 15-page judgment.

In her ruling, the ERT chair said that Hamel-Smith, in his submissions before the tribunal, conceded that Markham’s procedure for firing Hazell was inadequate and that her dismissal was unfair. 

But the company’s counsel further testified that the claimant failed to prove that the respondent had knowledge of her alleged pregnancy or that, even if it had such knowledge, the claimant’s pregnancy was the cause of her dismissal.

“Mr Hamel-Smith consequently submitted that the tribunal ought to compensate the claimant for unfair dismissal only, if so found, but not to go further and compensate the claimant for dismissal on the grounds of pregnancy,” ERT head Brathwaite said.

She said the company did not produce any personnel records containing the particulars of employment regarding the claimant, despite having been ordered by the tribunal to produce the claimant’s employment records, including the claimant’s Contract of Employment, Performance Plans and Assessments, details of any disciplinary action taken against the claimant, and all bonuses paid to the claimant.

“The respondent stated that the records were either non-existent or could not be located. The Tribunal notes that the respondent’s failure to maintain and produce the claimant’s personnel records was in breach of Sections 13 through 17 of the Employment Rights Act,” the commissioners found.

Some five months before her termination, Hazell, whose employment started on January 15, 2015, was assigned to supervise construction of a house at Little Kent, Christ Church.

The tribunal saw a significant relationship between Hazell’s dismissal and her involvement with that project.

“It appears to the tribunal that an incident which occurred during June to November 2017 was the catalyst for the termination of the claimant,” ERT chair Brathwaite said.

“That incident was the collapse of the boxing at the Little Kent project. That incident occurred, according to the claimant, because of ground saturation, as a result of heavy rains as well; the height at which the work was being carried out; and her pregnancy, which prevented her from climbing to high heights. 

“She claimed she had to seek the assistance of another site supervisor to oversee the pouring of the concrete, but that other site supervisor left the site without communicating with her, and she had to carry out an investigation to determine what caused the incident.” 

The tribunal chair said the ex-employee also testified that she had asked an L. J. Still for assistance with the pouring because she was pregnant and that this request was made via a telephone call.

“She was aware that Mr Still was very ill at the time and that Jonathan Still and Fabian Gooding had assumed responsibility for the project. She, however, did not recall that Mr Still was out of the island receiving medical treatment at the time of her telephone request. The Tribunal finds it difficult to accept this evidence.

“It is noteworthy that the claimant was unable to produce to the tribunal any medical evidence of her pregnancy at the time of termination or during the Little Kent project. She did not produce a medical certificate from a medical practitioner. She also did not produce to the tribunal any evidence of having communicated the fact of her pregnancy to any representative of the respondent, either in writing or verbally. 

“She stated that she had delivered a sick certificate to Antoinette Massiah, who was the receptionist/accountant, and that she had informed Mr Winston Walker, Senior Supervisor, at the relevant time of her pregnancy. The sick certificate was not produced to the tribunal, and both Ms Massiah and Mr Walker subsequently left the respondent company, and there was no contact information for either of them.”

The panel recalled that Gooding, the company’s quantity surveying technician, gave evidence refuting Hazell’s allegation that her work came under scrutiny only after she disclosed her pregnancy.

Gooding had testified to mounting concerns regarding Hazell’s work for some time before her termination, particularly on the Little Kent project.

But a bundle of unsigned and undated documents he submitted to the tribunal to support his contention was rejected by the commissioners, who described at least some of them as suspect and unreliable and therefore unable to assist the tribunal in determining whether there was progressive discipline, as required by Part A of the First Schedule of the ERA.

The tribunal ruled: “There was no employee personal file produced to show what steps, if any, were taken by the respondent with regard to any disciplinary action taken by the respondent. Indeed, the respondent conceded that the process set out in the ERA was not followed. 

“Mr Gooding stated in evidence that the employee was paid ‘severance’ because ‘we (the respondent) recognised the company’s procedural shortcomings’. Mr Gooding further stated that the ‘ERA was not followed as far as (he) understood’ and the respondent did not make any further payments because the payment that was determined was paid to the claimant”. 

(EJ)