The Caribbean Court of Justice (CCJ) on Thursday dismissed the appeal in the Barbadian case of Sandy Lane Hotel Co Ltd v Juliana Cato, Wayne Johnson and Charmaine Poyer.
The Port of Spain-based court held that the hotel wrongfully terminated the employment of Cato, Johnson and Poyer and that the three are entitled to the damages they claimed. The hotel will also have to foot the legal bill for the three.
Sandy Lane Hotel had employed the three for periods between six and 11 years, when they were dismissed in January 2012 with one week’s payment in lieu of notice, according to a release from the CCJ.
The reason for each dismissal was alleged to be poor performance in relation to their treatment respectively of a particular hotel guest.
The employees brought wrongful dismissal actions claiming damages under the Severance Payments Act. The company’s defence was that the employees had been lawfully dismissed.
The magistrate and the Court of Appeal of Barbados (CoA) both held that the employees had been wrongfully dismissed and were entitled to damages under the Act.
The magistrate’s decision was based on the finding that the collective agreement executed by the Barbados Workers Union and the Barbados Employers Confederation for the Barbados Hotel and Tourism Association was incorporated into the employees’ contracts, and the dismissals were in breach of that collective agreement.
The CoA, on the other hand, concluded that the company was required to follow the disciplinary process set out in the employees’ terms and conditions of service. Those terms were contained in a separate document but incorporated into the respective contracts of each employee. The CoA decided that the hotel’s failure to follow those processes in dismissing the employees rendered the dismissals unlawful. That ruling resulted in the hotel appealing to the CCJ.
The CCJ found that the provision in the employees’ contracts for dismissal with one week’s payment in lieu of notice conflicted with other contractual provisions requiring a specified disciplinary process to be followed in cases of alleged poor performance.
Dismissal with a week’s payment in lieu of notice also conflicted with the further contractual provisions for employees to “be given every opportunity through counselling, training and re-training before being terminated for poor performance”, the court noted.
“The CCJ held that these conflicts must be resolved against the company as it was the company that had drawn up the employees’ contracts and the company was in the dominant position,” according to the CCJ.
The CCJ noted that these employees were unable to bring an action for unfair dismissal, as is now provided in Barbados by the Employment Rights Act of 2012 that was passed months after they were dismissed.
The CCJ held that since the real reason for the employees’ dismissal was alleged poor performance, the company could not simply dismiss the employees without following those provisions in their terms and conditions that specifically addressed how poor performance should be treated.
The court noted: “By acting in the manner that it did, the company not only breached those provisions of the employees’ terms and conditions of service that stipulate how alleged poor performance should be treated but also the company was in breach of the implied term of mutual trust and confidence.
“This term, the CCJ noted, is implied by the common law into every contract of employment to ensure that employees are treated fairly and that employers do not conduct themselves in a manner that destroys or seriously damages the relationship of confidence and trust between employer and employee.
The court, therefore, held that the employees should be awarded damages of at least the amount they would have been entitled to receive as severance pay under the Act.
The judgment was delivered jointly by the Honourable Mr Justice Adrian Saunders, President, and the Honourable Mme Justice Maureen Rajnauth-Lee, with the other judges on the bench being the Honourable Justices Jacob Wit, Winston Anderson and Denys Barrow.
Mr Satcha Kissoon and Ms Joia Reece appeared for the hotel. Edmund King, QC, and Nailah Robinson appeared for the respondents.