How Chefette Restaurants ended up paying $106,630.01 plus legal fees for both sides of an unfair dismissal dispute all because of a $40.00 cheque.

Hi All,

It’s been a while!  Anyway…

I was reading http://www.barbadoslawcourts.gov.bb/wp-content/uploads/2017/08/CVA-No-11-of-2016-Chefette-Restaurants-limited-v-Orlando-Harris.pdf today and thought you would be encouraged in your battle against human frailty by the fact that even our favourite fast food outlet can make a mistake.

This story is really about Mr Orlando Harris, a dedicated assistant manager of 14 years at the said fast food restaurant.

This assistant manager was a good worker by all accounts, earning every cent of his $4,200.00 per month salary.  He was commended and awarded up to the highest level – yes, including by the owner – for being punctual, polite, competent, exhibiting excellent attendance, and so on.  Basically, the sickening type of employee that would get his car keyed.

Anyhow, one day, while the assistant manager was busy assistant managing, an APB goes out for a missing envelope.  You see, it contained a cheque for forty dollars ($40.00) to another manager at Chefette.  She had called in to say she did not get her cheque.  The APB was unsuccessful.  However, upon Chefette’s investigations the cheque turned up as having been cashed at the Chefette branch at which the assistant manager was on duty, and with having “O Harris” written on the back – seemingly indicating he’d given his permission to cash the cheque at the restaurant, against company policy.  He’d also approved that day’s takings by the cashiers as having balanced.

understanding-unfair-dismissal-laws

The manager was hauled into a contentious meeting with his superiors over the $40.00 cheque.  The manager insisted he did not sign the cheque.  He demonstrated his signature and pointed out the differences.  Chefette was unimpressed.  It next suspended him with pay and then asked him to come to a disciplinary meeting.  That meeting was objected to by the assistant manager for procedural reasons.  He was invited to a second meeting, which for some reason he missed.  After that, he was dismissed.  He was given two months’ salary in lieu of notice and some vacation pay.  The assistant manager complained to the Chief Labour Officer and proceedings before the Employment Rights Tribunal (ERT) were started.

Despite Chefette’s pleas that they had lost trust and confidence in the manager and they were justified in dismissing him for “failing to follow the Company’s cash handling procedures”, the ERT found that they were not so justified.  For one, Chefette had not completed the investigation into the cashing of the cheque – like who signed the back? Who has the money? I’d like to know – and two, they did not complete the disciplinary hearing.  Once you had not done these things, it is hard to convince any arbiter of fact that your dismissal exercise was fair.  He was awarded $106,630.01, which looks to include the rest of his due vacation pay and two years’ salary.

Chefette appealed to the Court of Appeal (COA).  The judgment by Burgess JA is lengthy but essentially he agreed with the ERT, just not upon how they had arrived at the decision.

The ERT, deducing that our provisions are similar to theirs, delved into English law, wading neck deep into the turbulent waters of Halisbury’s Laws of England and other English-decided cases, as we like to do. The ERT was all about, “what would a “reasonable employer” do with these set of facts?”  The COA was like, “Huh? Why? Aren’t you supposed to look at section 29 which defines what is (un)fair and construe the facts accordingly?  Like, duh!”

Please bear with me for the following.  This is a legal article and the COA wrote it so clearly I dare not chop it up and well, if I read a 63-page judgment, you can read a few paragraphs of legalese.

Burgess JA states at paragraph 96 of the judgment, “The crucial point, though, is that, on its plain language, our section 29 (4) is not “identical” to the United Kingdom section 98 (4) as was claimed by the ERT. There may be “commonality” between the two subsections but there exists a gulf of difference between them. The most obvious difference is that our section 29 (4), unlike the United Kingdom section 98 (4), makes no provision that the reasonableness or unreasonableness of a dismissal “shall be determined in accordance with equity and the substantial merits of the case”.” It is apparent from the foregoing, then, that section 29 (4) and section 29 (5) are in form, substance and intent very different from the relevant provisions in the United Kingdom Act. All that said, we hasten to underline that the meaning and operation of section 29 (4) and section 29 (5) can only be found in the revealed intention of our Parliament in enacting those provisions and that that intention is not to be sought in English judge-made law. As Simmons CJ stated in Wood v Caribbean Label Crafts Ltd (Unreported) Magisterial Appeal No. 11 of 2001 (16 July 2003), our task in approaching English decisions is to read them with “a discerning eye and an analytical mind”. We would add that the approach advocated by Simmons CJ is especially apposite where, as is the case with the ERA [Employment Rights Act], the relevant law is contained in an Act of our Parliament. ‘’

Wha-pax!!  As a certain Bajan personality would say.

So, the COA looked at the preamble (the paragraph which explains the point of the Act) and the whole Act and forged ahead with what it had gleaned was the point of our Act from actually reading it.

At paragraph 114 Burgess JA continued, “It is our judgment that the jurisprudential urge of our Parliament in enacting the ERA was to shift employment relations in Barbados away from the traditional contract of employment model and the ever lurking spectre of the master and servant relationship to a model which views employment law as ultimately being about workplace justice. The procedure established in section 29 (5) is, in our view, an example of such a shift. It has introduced into the work place in Barbados an overriding employee right to natural justice. To be compliant with section 29 (5), an employer must strictly follow the steps set out in that sub-paragraph.”

Then at paragraph 117 “By section 29 (5), Chefette was therefore bound to follow the procedural requirements in Part B of the Standard Disciplinary Procedures. We agree with the ERT’s decision that Chefette failed to do so. The legal effect of that failure is that Chefette is disentitled from raising the defence that Mr. Harris’ dismissal was fair pursuant to section 29 (4).”

At paragraph 126 Burgess JA makes it clear that, “In a word, the English “reasonable employer” is replaced in our ERA by a set of statutory rules which must be followed by a dismissing employer.” Further, at paragraph 131, “section 29 (4) (b) does not contemplate any contracting out of compliance with the rules in Part A of the Fourth Schedule.”

You cannot make your employee agree to disciplinary procedures that exclude the ones outlined in the Act!

Therefore, employers are under a legal duty to import natural justice into their dealings with their employees by following, to the letter, the ERA provisions.  Otherwise, well, a $40.00 cheque mishap becomes a $106,630.01 (which now includes the two months he got previously) plus costs, plus legal fees, plus embarrassment, plus loss-of-a-stellar-employee (even though you done know he get his tyres slashed at least once) matter.

Also, anyone who thought “as opposed to a sexual urge” when you read “jurisprudential urge” above does not get a mint – you know who you are.

Until next time,

Karis

 

Updated: to remove all references to “summary dismissal”.  It was an error on my part and I apologise.  Summary Dismissal or “getting fired” is reserved for gross misconduct and, as is implied, is without notice or payment in lieu of notice.  Thanks to Mr Jeff Cumberbatch for the correction.

 

Advertisements

Do you qualify as a spouse? Lessons from Albert Selby v Katrina Smith

court picThe deceased, Albert Selby, died without leaving a will and thus his estate is to be dealt with according to the Succession Act and the rules of intestacy which give priority to the deceased’s spouse, children then parents then siblings then nephews and nieces. The deceased was divorced, had no children and his parents died before him. The parties in the Albert Anthony Peter Selby v Katrina Smith [unreported] C.A. B’dos Civil Appeal No 14 of 2010; 2017-02-14 case are the brother of the deceased man and an unmarried woman with whom the deceased was cohabiting up until his death.

At the center of the case is the Succession Act of Barbados, particularly Section 2 which speaks to who is considered a spouse under the Act. Section 2 (3) and (4) of the Succession Act states

(3) For the purpose of this Act, reference to a “spouse” includes

  • A single woman who was living together with a single man as his wife for a period of not less than 5 years immediately preceding the date of his death;
  • A single man who was living together with a single woman as her husband for a period of not less than 5 years immediately preceding the date of her death.

(4) For the purposes of subsection 3, a reference to a single woman or a single man includes a reference to a widow or widower or to a woman or to a man who is divorced.

One of the two issues which the High Court was asked to determine was whether Ms. Smith is capable of being regarded in law as the deceased’s “spouse” for the purposes of the Succession Act, given that the deceased was a married man during a part of the five year period immediately preceding the date of his death. The High Court decided in favour of Ms. Smith and the deceased’s brother appealed to the Court of Appeal.

The deceased having been married at the start of the cohabitation with Ms. Smith and for a part of the 5 years immediately preceding his death, the issue which the Court of Appeal had to determine was who constitutes a single person for the purposes of Section 2 of the Succession Act.

The Court of Appeal handed down its decision last month and held that Mr. Selby though separated but not divorced from his wife for the requisite period of not less than five years immediately preceding the date of his death cannot be considered as single. The consequence of the Court of Appeal’s decision is that Ms. Smith, who regarded herself as Mr. Selby’s partner for several years cannot benefit from his estate on intestacy since she does not qualify as his spouse.

                                                                                                           – Kara-Je Kellman

Click here to see the article ‘Under what circumstances is a person entitled to inherit from their deceased partner?’

On Harassment and Sexual Abuse: #LifeInLeggings

Over the last several days social media has been alight with personal accounts of sexual harassment, rape, sexual abuse and physical and verbal abuse which stemmed from the above atrocities. Persons, mostly women from the Caribbean, related to the world of social media some of their untold stories. What started as a flame has been the catalyst for many a conversation, discussion, vlog and even newspaper article. Many persons have now finally found the strength and courage to relay their experiences to their friends, associates, strangers – the world.

These posts have been a source of encouragement for some and a reminder to others that they are not alone in their experiences. It has also caused countless persons to reflect, do some retrospection and introspection and realise that they are or were a part of the problem. Many persons have apologised. Many have openly supported the victims and condemned the culprits. Society was also not left unscathed. We know that often at the heart of these issues is how we were conditioned and thus society was also thrown into the fire. In light of all of this, I have undertaken to set out below what the law offers to the victims of these inhumane, highly offensive acts.leggings

The Minor Offences Act Cap. 137 at Section 2 (1) says ‘ Any person who…

(c) wanders in the public streets or highways or in any place of public resort and behaves in a riotous or indecent manner;

(d) in any street, highway or public place accosts a passenger and offers to take him to the house or residence of a prostitute;

(e) loiters in any street highway or public place accosts a passenger and offers to take him to the house or residence of a prostitute;

(f) in any street, highway or public place, including a beach, without lawful authority or excuse (the proof whereof shall lie on the person accused), accosts, molests, threatens or harasses any person or follows him about;

commits an offence and is liable on conviction before a magistrate to a penalty of $2500 or to imprisonment for 2 years or both.’

Section 2(2) states that in this Section, ‘ “harass” means to

  • Use words, gestures and actions that annoy, alarm or abuse a person;
  • Insult, taunt or challenge a person in a manner likely to offend;
  • Use obscene and profane language to intimidate a person; or
  • Disturb or irritate especially by continued and repeated acts.’

A Sexual Harassment (Prevention) Bill is also in the works and is expected to afford greater protection to employees against sexual harassment in the workplace.

                                                                                                     – Kara-Je Kellman

“Do I Have To Go To Court?”

young man sitting thinking, contemplating - isolated on white

It depends.

If you are asking this question because you have started a matter in Court then you should definitely go to the court hearings, even if you have a lawyer. Your attendance at Court signifies that you are interested in the matter and it also shows respect for the Court and its proceedings. Further, you should attend the sessions in the event that the Court wishes to solicit any information from you which might not be within the personal knowledge of your attorney. If you are representing yourself you should not think twice about going to Court – just go!

If someone has initiated an action against you, the answer is still yes – for all of the reasons stated above.

If you are defending a criminal charge in Court then you should definitely turn up to Court on the specified date, unless you like the idea of being arrested. In this case, non-attendance is not harmless! In fact, the magistrate or judge may issue a warrant for your arrest. Your non-attendance at Court may be even more disadvantageous to you if you were on bail. The judicial officer may rescind bail and remand you into lawful custody since the main condition of bail is to appear at Court on the specified dates and times for the “calling” or hearing of your case.

If you are the virtual complainant in a criminal matter, you risk having your matter thrown out if you do not show up at Court for the trial of the matter.

You may be asking this question because you are considering your options for relief. The parties can assemble and with the aid of their attorneys begin negotiations with the aim of coming to an amicable agreement. Moreover, if you initiate a civil action at Court, at the first hearing or at some subsequent hearing, the Court may refer the matter to court-annexed mediation. The parties may also ask the Court to exercise that option. This process is intended to be less time consuming and allows for free discussion of issues with the goal of coming to an agreement with the professional assistance of a qualified mediator.

– Kara-Je Kellman

Should Persons Accused Of Murder Get Bail?

bail picIn a preceding article we spoke about Bail in Barbados generally, with particular focus on the Barbadian Bail Act. If you read that article entitled ‘Bail in Barbados- Did You Know?’ you may recall that the Court has a discretion to grant or refuse to grant a person bail and in exercising this discretion the Court may consider certain factors set out by the Bail Act. For some time, Barbadians have been reacting to the Court’s granting of bail to persons accused of certain types of offences. Of particular interest to Barbadians is the Court’s granting of Bail to persons accused of murder. We will therefore briefly discuss whether a person accused of murder should be granted bail.

We realized in the former article that while Magistrates do not have the power to grant bail to persons accused of murder, judges of the High Court have the authority to grant bail to such persons. In Barbados, we have noticed that persons who were on remand for years after being charged with murder, have been granted bail by the Court. This has led to many persons expressing their disapproval with the Court’s decisions to grant  accused persons bail.

Some persons complain that such a decision is unfair to family members of the victim. It is completely understandable that the relatives and friends of the victim would feel some emotion upon hearing that the person charged with the murder of their loved one was granted bail.

There are also persons who disagree with the granting of bail to persons accused of murder because they believe they pose a threat to members of society. There are others, who, because they may not understand what bail is and how it works argue that the accused was released with a slap on the wrist.

Before I refer to the Constitution of Barbados, I must point out that a person accused of murder has not been found guilty of the serious offence; they have only been charged with murder. It is of the greatest importance that we digest this. An accused person has not pleaded guilty neither has he or she been found guilty of the offence for which he or she is charged. Bail should therefore not be seen as a slap on the wrist since it is not a sentence. In fact, time spent on remand awaiting trial may be considered as punishment since, where there is a finding of guilt, the Court treats such time as part of the sentence.

I must also highlight that the fundamental question, among the many questions with which the Court is faced in deciding whether to grant bail, is whether the accused person will appear at Court for the trial of the matter.

Let us turn our attention to section 13 of the Constitution which provides for the right to personal liberty. Subsection 3 is of great significance to the matter at hand. I will set it out in full to avoid butchering the provision.

Any person who is arrested or detained-

(a) for the purpose of bringing him before a court in execution of the order of a court; or

(b) upon reasonable suspicion of his having committed or being about to commit a criminal offence,

and who is not released, shall be brought before a court as soon as is reasonably practicable; and if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings which may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.

Therefore, given this Constitutional provision and the provisions contained in the Bail Act, a person accused of murder is entitled to apply for bail and further, has a right to bail if he or she is not tried in a reasonable time. The Court may attach suitable conditions to the bail to ensure that the accused appears at Court for subsequent court hearings or trial.

                                                                                                                                        – Kara-Je Kellman

(You can read the article ‘Bail In Barbados – Did You Know?’ at: https://bealexattorneys.wordpress.com/2016/03/17/bail-in-barbados-did-you-know/)

Into the Looking Glass: Our Society within the Justice System


bealex boy-looking-in-mirror-f214-22-605Most of us do not ever venture into a Court unless we are a part of the Justice System in Barbados – maybe a lawyer, police officer or probation officer.

While efforts have been made to upgrade the Courts they are essentially functioning under the same physical constraints as they have been for decades.

One still approaches the Court to find people sitting on benches or standing outside the Court until they are ushered in. Some benches now have back rests but some still do not. Perhaps the Courts are intended to be an unwelcoming place because the intention is to make one uncomfortable with the visit.

Who is likely to be there

(I sometimes think however that our infrastructure reflects who we expect to use it, and thus the stark contrast between the van stand and the international airport – but that is merely a random thought. )

The Magistrate’s Court has both a civil jurisdiction of no more than $10,000.00 with some exceptions such as wrongful dismissal and a criminal jurisdiction, thereby seeking to address many of the small but not unimportant issues plaguing the society.

Individuals are often seen at their most desperate and their most vulnerable. Some manage to catch a glimpse of what it is like for those whose existence in our society are predetermined to be solitary, poor, nasty, brutish, and short.

For every charge or grievance there is a societal issue which has lead to the appearance before the Court. And arguably the appearance marks a failure of the society to deal with that set of circumstances adequately.

The underlying social issues

Assaults might stem from relationships within the community which have soured whether they be relationships between spouses or between friends.

Disputes might occur over maintenance because parents do not understand their parenting role or their understanding might be clouded by anger over the failure of the relationship.

A debt in the past which would have been forgiven between friends becomes a matter for the Court because friends consider themselves wronged somewhere along the line in the friendship – maybe a falling out over a woman.

Then there is the passing parade of those involved in minor criminal activity. Many of them young men under 25 years of age – the future of Barbados. Magistrates offer words of warning, words of reason with the certain knowledge that quite often those who appear before them will appear once again, older, with more serious crimes.

Underpinning all of this is that many of our Citizens have mental problems which just like physical problems will get worse if not treated.  

All of these matters come before the Magistrate who over time comes to recognise the human emotions layered beneath the cold bedrock of the law.

Can the Court adequately address these underlying problems?

The Magistrate’s Court is a good barometer if we wish to examine the struggles of ordinary people. It is clear that some individuals need help. Probation officers are on hand, recourse is made to investigations and reports on the family as well as reports to inform sentencing. There are some rehabilitation and counselling programmes which are available, some run by government and some which are private.

Relatively new tools have been introduced such as the Domestic Violence (Protection Orders) Act Cap. 130A and the Penal System Reform Act Cap. 139 which give the Magistrate more and better options in dealing with those who appear before him.

And yet we have not done enough.

What is to become of the individuals in now forced relationships who have the responsibility of raising children when they have not themselves come to terms with their own problems?

What is to become of the hundreds of boys and young men who appear before the Court on a monthly basis?

Should community disputes however small require the engagement of the full armament of the judicial system?

It is now normal for there to be a public outcry fuelled by social media when there is some tragic event. But the truth is we do not pay very much attention when the symptoms first appear either as individuals or as a society. 

Seeking new solutions

For those who agree that more should be done and that there should be more effective solutions, it will be a daunting task to recalibrate the thinking of the majority to the view that those who appear before the Courts could benefit from earlier interventions and evaluation, monitoring and support after trial.

Since we are no longer our brother’s keeper – let it be said too that weightier interventions and more effective programmes would make the society better for us all.

Lynette Eastmond