Barbados Employment Rights Tribunal NO. ERT/2016/185 BETWEEN: CAROLYN HAYNES CLAIMANT AND BARRBADOS BEACH CLUB RESPONDENT

Introduction

This case, labeled ERT/2016/185, involves an incident between the Claimant, Carolyn Haynes, and Rico Harte that took place on April 6, 2016, within the premises of the Barbados Beach Club. This altercation ultimately resulted in the termination of Carolyn Haynes' employment on April 8, 2016.

Carolyn Haynes had served as a porter/kitchen steward for the Respondent, Barbados Beach Club, for 14 years. Prior to this incident, there was no documented history of misconduct on her part, nor had any disciplinary action been taken against her. Carolyn Haynes argued that her dismissal was unfair, primarily because the Respondent did not adhere to the procedural requirements stipulated in the Employment Rights Act, 2012-9 ("the Act"). The Respondent, on the other hand, contended that despite certain procedural irregularities, they were justified in terminating Carolyn Haynes' employment due to her involvement in a physical altercation on the company's premises, which was a breach of company policy.

The Claim Form was filed on August 15, 2016, while the Respondent's Form 2 was submitted six and a half years later, on February 10, 2023. Carolyn Haynes supported her claim with witness statements filed on August 17, 2016, and January 27, 2023. The Respondent presented witness statements from Michael Moore, Costella Cave, Antoinette Barnes, Michael Coppin, and Felix Broome, all dated prior to the Claim Form submission. The hearing concluded with both parties providing written submissions for the Tribunal's consideration.

The Issues

The primary issues to be determined by the Tribunal are:

• Whether Carolyn Haynes' dismissal was related to her conduct.
• If it was, whether the Respondent acted reasonably in considering her conduct as a sufficient reason for dismissal.
• Whether the employer complied with the procedural requirements outlined in Parts A, B, and C of the Fourth Schedule to the Act.

The Law

The Tribunal must consider whether the principal reason for the dismissal falls within section 29(2) of the Act or was some other substantial reason justifying the dismissal according to section 29(1)(b). The Act provides that the employer must establish the reason for dismissal and demonstrate that it falls under section 29(2), which includes reasons related to capability or conduct. Once the employer has fulfilled these requirements, the fairness or unfairness of the dismissal depends on whether the employer acted reasonably in treating the reason as sufficient for dismissal and whether the employer complied with the procedural rules set out in Part A of the Fourth Schedule.

Discussion

The incident in question involved a physical altercation on the premises of the Barbados Beach Club between Carolyn Haynes and Rico Harte. While Carolyn Haynes initially portrayed herself as a victim, referring to the incident as an "altercation," she later acknowledged it as a "fight" during her oral testimony. This characterization is relevant in evaluating whether the dismissal was reasonable.

The Tribunal assessed the reasonableness of the dismissal by considering whether the Respondent had reasonable grounds to believe that Carolyn Haynes was guilty of misconduct. Michael Moore, her supervisor, testified that she had been involved in a physical fight with Rico Harte, even after they were separated by other employees. He described her as continuing to confront Harte and even threatening him, indicating that she did not appear to be afraid of him.

The Tribunal found that a reasonable employer would have believed that Carolyn Haynes was guilty of misconduct based on the evidence. Additionally, the Respondent's rules and regulations provided for termination in cases of "fighting or repeated quarreling with other employees." These rules were in effect at the time of her dismissal, and Carolyn Haynes was aware of them.

The Respondent claimed to have conducted an investigation into the incident, which is a requirement in determining the reasonableness of dismissal. The investigation included interviewing several witnesses. The Tribunal considered this investigation reasonable in the circumstances.

When evaluating whether a reasonable employer would have dismissed Carolyn Haynes, the Tribunal weighed both mitigating and aggravating factors. Carolyn Haynes had a 14-year employment history with the Respondent, and her performance record was commendable. However, her active participation in the brawl, including raising her voice and making threats, constituted aggravating factors. The Tribunal found that these aggravating factors outweighed the mitigating ones, particularly given the hospitality industry's high standards for customer service and the potential impact of the incident on the Respondent's business.

Procedural Fairness

The Claimant's account of the disciplinary process indicated several procedural shortcomings. She received a suspension letter but was not given a warning letter, dismissal letter, or the required six weeks' notice period. While she attended a meeting, she was not accompanied by a friend or representative. The Respondent's representative, Mr. Broome, lacked firsthand knowledge of the incident and the subsequent disciplinary hearing, making his statements less reliable. The Respondent failed to produce evidence that it had given notice to the Claimant of her right to bring a representative to the disciplinary meeting. They also could not confirm whether notice was provided in writing.

These procedural irregularities raised concerns about the fairness of the disciplinary process, as the Act requires employers to inform employees of the accusations against them and give them an opportunity to state their case, following the Standard Disciplinary Procedures outlined in Part B of the Fourth Schedule. Moreover, the Act mandates progressive disciplinary action, and employees should not be dismissed for their first breach of discipline, except in cases of gross misconduct.

Conclusion & Summary

In conclusion, this case raises significant questions about the fairness of Carolyn Haynes' dismissal, considering both the reason for dismissal and the procedural irregularities involved in the disciplinary process. The Tribunal must weigh the evidence carefully before reaching a final decision in this matter.

The Tribunal's judgment seems to revolve around a case of unfair dismissal and violation of proper disciplinary procedures in the workplace. Here's a summary of the key points in the judgment:

Gross Misconduct Allegations: The claimant, Carolyn, was involved in an altercation at the hotel where she worked. The employer, referred to as the Respondent, considered her actions as gross misconduct, which led to her suspension and eventual dismissal.

Legal Standards and Disciplinary Procedures: The Tribunal evaluated whether the Respondent adhered to the legal standards and disciplinary procedures set forth in the law. These procedures require employers to provide a written statement of grounds for considering disciplinary action, convene a disciplinary meeting, allow the employee to bring a representative, and provide a detailed written decision with the right to appeal.

Procedural Irregularities: The Tribunal found multiple issues with the Respondent's handling of the disciplinary process. The suspension letter was defective, and the grounds for misconduct were not adequately specified. Furthermore, the Claimant did not receive proper notice of the disciplinary meeting, which is a fundamental aspect of a fair disciplinary process.

Failure to Inform of Right to Representation: The Respondent did not inform Carolyn of her right to bring a friend or representative to the disciplinary hearing, which is required by law.

Dismissal and Compensation: Despite procedural irregularities, the Respondent argued that the dismissal was fair. However, the Tribunal disagreed, emphasizing that a fair process is crucial, and the dismissal was, therefore, unfair. The Tribunal ordered the Respondent to pay the Claimant compensation.

Compensation Calculation: The compensation to be paid to the Claimant was calculated based on three main components:

• Wages for the Claimant's 14 completed years of service.
• Notice pay.
• Holiday pay.
• Total Compensation: The Respondent was ordered to pay the Claimant a total of $18,341.19.
• Costs: The Tribunal clarified that it had no statutory power to award costs against the Respondent, despite the Respondent's defense. Each party was directed to bear its own costs.

In summary, the Tribunal found that the Respondent's handling of the disciplinary process and dismissal was procedurally flawed and unfair, and it ordered compensation to be paid to the Claimant.