The Trinidad-based Caribbean Court of Justice (CCJ) has dismissed an appeal by Massy Stores (Barbados) Limited regarding the dismissal of a long standing employee. Merton Forde.
Massy Stores had dismissed Forde, who admitted to an unauthorised taking of the company’s property, condemned rice. The company had argued that an employee who is summarily dismissed is given no notice or salary in lieu of notice, but such dismissal is reserved for only very serious misconduct.
The matter was first heard at the Magistrate’s Court where it found that the summary dismissal was “disproportionate and wrongful”.
The Court of Appeal agreed with the Magistrate Court ruling and found that it had correctly adopted the contextual approach, that is to say, examining Forde’s reactions, utilising a broad assessment of his conduct over the years.
Some of the matters considered were the nature and minimal value of the property taken, the length of the employee’s service, the employee’s record at the company, and the seriousness of the conduct.
In its majority ruling, the five member panel of judges of the CCJ, which is Barbados’ highest and final court, agreed with the Magistrate and Court of Appeal that Forde been wrongfully dismissed.
In the written ruling, Madam Justice Justice Rajnauth-Lee wrote that the approach of the Magistrate and the Court of Appeal, that is, the contextual approach that takes into account all relevant considerations, was in line with several Barbadian cases through the years.
The CCJ said that while the law relating to summary dismissal must not stand still, it must be responsive to the evolving social values of the Barbadian people, and aligned with the constitutional principles of equality, proportionality, and fairness embraced by both the legislature and people of Barbados.
The CCJ observed that these principles place a high value on the importance of the dignity of work and the protection of workers’ rights.
In addition, the CCJ found that the company’s Employee Handbook had been incorporated into the contractual relationship between the parties. However, the disciplinary procedure contained in that Handbook had not been followed.
The CCJ ruled that Forde was entitled to a fair hearing and set out certain minimum standards of fairness that ought to be implied into the Handbook.
In a separate opinion, Justice Eboe-Osuji underscoring his full concurrence with the lead judgment, said that the common law has always been in a state of evolution.
He said it is, therefore, entirely appropriate that Barbadian common law, as developed by Barbadian appellate judges, should give value to the considerations of reasonableness and fairness.
In his dissenting opinion, Justice Barrow, however, found that none of the factors considered by the Magistrate and Court of Appeal existed according to the evidence and did not mitigate the gravity of the Respondent’s dishonest conduct and, therefore, the dismissal was not wrongful. (CMC)
