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Chefette challenges Tribunal ruling

A decision by the Employment Rights Tribunal is being challenged in court for the first time since the reconstituted panel handed down its inaugural ruling in July 2015.

Chefette Restaurants Limited has filed a legal challenge in the High Court, appealing a ruling made by the Tribunal on April 13, 2016, awarding former Assistant Manager Orlando Harris $106, 630.01 in damages, including 27 months retroactive wages and holiday pay.

In a unanimous judgment, the Tribunal, chaired by Kathy-Ann Hamblin, had found that Chefette had unfairly dismissed Harris on January 27, 2014.

The popular fast foods chain lodged its challenge in the Supreme Court nine days after judgment, but that lawsuit is only now being made public following investigations by Barbados TODAY.

The restaurant is relying on 13 grounds of appeal to prove its case and is asking the court to set aside the judgment and to order the Tribunal to cover its costs for the appeal process.

“The Tribunal erred in that it applied too high a standard in its determination of whether the appellant had carried out as much investigation into the matter [allegations against the former employee] as was required,” Chefette argued.

The company had contended that the claimant was terminated in accordance with Clause 11 of its conditions and terms of employment 2010 to 2013, for failing to follow the cash-handling procedures for the day-to-day running of the restaurant.

The fast food chain is also contending that the panel erred in its interpretation of the appellant’s code of discipline, especially in not viewing the evidence found in the restaurant’s cash handling policies as corroborating or clarifying or informing its interpretation of the same code.

“The Tribunal erred in its failure to adduce evidence of the benefits received by the respondent upon termination and thus failing to reduce its award by benefits received by the respondent upon termination,” Chefette argued.

The food outlet charged that Hamblin wrongly assumed the role of advocate for the respondent, thereby abdicating her role as an arbiter.

“The Tribunal erred in that it substituted its own judgment for that of the appellant in the determination of whether the sanction of dismissal was within the band of reasonable responses. There was no finding that the conduct of the employer was unreasonable or outside the band of reasonable responses in that no employer would have acted similarly,” it continued as it lay its case for a reversal of the Tribunal’s decision.

During the hearing, Chefette had claimed that on September 14, 2013, a cheque made payable to Donnalyn Ward, another employee, was received, endorsed with Harris’ signature, cashed and deposited during the shift managed by the claimant, who could lend no clarity to the matter when asked to do so by the company.

However, the Tribunal said the real issue before it was whether the fast food restaurant’s decision to fire Harris was fair in all the circumstances.

“The unanimous decision of the tribunal is that on January 27, 2014 when the respondent dismissed the claimant, retroactive to January 13, 2014, it did
so unfairly.

“We hold that the claimant was unfairly dismissed; the claim is well founded, the claim succeeds. We do not think that the respondent followed the procedures in the [Employment Rights] Act. There were so many procedural defects, and those defects were so fundamental, we could not come to any other decision,” Hamblin said in her 15-page decision.

Meanwhile, investigations by Barbados TODAY also revealed that former employee with AVG Investments Inc Anne Marie Holder was recently awarded $24, 411 in compensation after the company “threw in the towel” in respect of her unfair dismissal over missing cooking gas bottles.

The Tribunal is currently hearing the unfair dismissal case of Valerie Jasmine Payne, who was fired by the state-owned Barbados Vocational Training Board as its fixed-term Public Relations and Marketing Officer.

Tribunal officials told Barbados TODAY the only thing stopping two other cases from being heard was the unavailability of the attorneys-at-law.

One official said the case of Wendell Shorey versus Paynes Bay Hotel was heard in part, while Constance Batson Reid against the then Barbados Tourism Authority, now the Barbados Tourism Marketing Inc, has yet to begin.

An additional 20 unfair dismissal claims are also ready, the official said, adding that so far, more than 100 unfair dismissal claims had been filed with the Tribunal and more continued to come in daily.

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