New Employment Rights Rribunal gets down to business
The reconstituted Employment Rights Tribunal started hearing its first case this afternoon in the auditorium of the Warrens Office Complex of the Labour Department. However, the much-publicized and controversial retrenchment of more than 200 National Conservation Commission (NCC) workers was not heard.
While not being able to say exactly when this politically-charged NCC matter would begin after more than a year of waiting, tribunal chairman Hal Gollop, QC, gave the assurance it is high on the agenda and is being treated with urgency. Before getting down to business, Gollop addressed the hearing, which is open to the public.
“This session will mark the beginning of a new jurisprudential era by which the old doctrine of wrongful dismissal has given way to that of unfair dismissal pursuant to the introduction of the Employment Rights Act,” he stated.
He noted that this would be the first time in which the Employment Rights Tribunal would be called upon to exercise a jurisdiction in relation to the same era. Gollop said that even though the sittings are open to the public, he cautioned people to exercise the same level of decorum associated with the courts of Barbados.
“The tribunal is looking forward to making its mark in the development of our country, more particularly the development of good labour relations. I can assure you that the quality of persons on this tribunal which I have the distinct honour to chair, makes it equal to that task and we look forward with enthusiasm to the journey ahead,” added the Queen’s Counsel.
The first case called involved the September 20, 2013 dismissal of one Joel Leacock, who was hired by the accounting firm, KPMG, as Business Advisor in Transactions and Restructuring. In her submission, Leacock’s attorney at law Jewel Garner urged the three commissioners hearing this matter to reinstate her client, arguing that he was unfairly dismissed.
Garner told the sitting which was also attended by the remaining four commissioners and Chief Labour Officer Vincent Burnett, that while Leacock’s complaint reached the tribunal outside of the three months required by the Employment Rights Act, formal notification was given to the Chief Labour Officer within the specified time.
This sparked a lengthy exchange of technical and legal arguments between Garner, attorney for KPMG Sherica Mohammed-Cumberbatch and chairman Gollop as to the interpretation of what constituted the time limit under the Act.
Gollop pointed out that it was the Chief Labour Officer who was required to “trigger” the complaint to the tribunal. He drew reference to the fact that while the Chief Labour Officer only lodged the complaint in July of the following year , Leacock’s lawyer had notified Burnett in writing in November 2013, of his desire for the case to be heard by the tribunal.
However, the respondent’s attorney Mohammed-Cumberbatch insisted that the Act says [the] Tribunal shall not consider a matter unless filed within three months from the effective date of termination. And she noted that termination was September 20, 2013. At this point, chairman Gollop ruled that there was enough reason for the case to continue.
Leacock’s attorney then advised that he be cross examined by Mohammed Cumberbatch, who was assisted by Niketh Smithen – both from the legal firm of Carrington and Sealy. Mohammed-Cumberbatch drilled the complainant – the only person to occupy the witness stand today – for more than an hour during which time she argued that his dismissal was justified. She told the three commissioners – Ed Bushell, Beverly Beckles and Gollop – that her client’s grounds for firing Leacock were essentially his poor performance, the fact that he spent too much time to complete critical tasks which sometimes cost his former employer money, his inability to multi-task and his attitude to ongoing reviews of his performance where he felt he knew everything and failed to correct those areas his managers told him needed improving.
Under further cross examination, Leacock admitted that he refused to sign an appraisal document because he did not agree with the comments recorded by his performance manager Christopher Broome. He rejected a suggestion by the KPMG attorney that he did not complete all of the tasks set by the deadlines. He also rejected a suggestion by Mohammed-Cumberbatch that he did not meet the standards and formatting required by the company’s “Golden Rules.”
Before adjourning the hearing until Friday May 29 at 2 p.m., chairman Gollop found it necessary to rule on a matter in which the KPMG attorney did not want the names contained in a “confidential” document revealed publicly.
Gollop said while the tribunal had a discretion to determine what was fit for public consumption, all documents presented to any tribunal or law court must be submitted in their original form so the panel can have a better understanding as to their importance, especially if they are used as evidence on which to rely.
He said the document must either be submitted in its entirety with nothing omitted, or not at all. It was therefore agreed that Mohammed-Cumberbatch would seek guidance from her client. The company is expected to call about four witnesses to testify on its behalf.
Leacock will be subjected to further cross examination during the next sitting.