The Labour Tribunal sided with disgruntled employees in the majority of unfair dismissal claims brought during a 12-month period reviewed by the Cayman Compass.
The 24 tribunal decisions released to the Compass through a Freedom of Information request show that the tribunal ordered payouts to 13 employees who complained they had been unfairly dismissed. On eight occasions, the tribunal decided the employer had made a fair decision. In three cases the tribunal found the workers were not unfairly dismissed but were owed additional severance pay.
Payouts ranged from a few hundred dollars to, in one case, more than $40,000.
Compensation is based on length of service with a week’s pay awarded for every year with the company. Under the new law, payouts could quadruple to four weeks’ pay per year of service.
The case files represent a year’s worth of decisions up to the date of an open records request filed by this newspaper in March of this year.
The cases investigated by the tribunal span a range of industries and disputes.
Among the employees who lost their cases was a woman accused of sending defamatory messages on her work Blackberry about her boss; an accountant who indicated she would take a five-week unauthorized vacation to attend a beauty contest; and a hotel housekeeper who refused to clean up cat urine.
Those winning compensation for unfair dismissal included a midwife fired for refusing to come into work on her day off; a chef who was, in the tribunal’s eyes, wrongly accused of waving a knife at a supervisor during an argument; and a cleaner who was dismissed for giving evidence against her employer in another labor tribunal hearing.
A recurring theme in the records is of firms laying off workers on a temporary basis due to financial concerns and then not rehiring them. In most cases, the tribunal ruled these employees were entitled to severance pay and, in a few cases, to unfair dismissal compensation.
The biggest single payout in the records was an award of $43,389.44 to an employee of RBC bank deemed to have been unfairly dismissed. That decision, like all those covered by the review period, is potentially subject to appeal.
The records include one case where criminal conduct outside of work was alleged. In this circumstance, the tribunal is clear, that the employer was not entitled to summarily fire the worker without allowing him a chance to prove his innocence. The charges were subsequently dropped and he won a claim for unfair dismissal.
Department of Labour and Pensions staff have indicated that hearings, currently held behind closed doors, will soon be held in public and the decisions posted online.
The following files summarize 12 of the cases they encountered in the period covered by the FOI request.
Employee v Airserv Cayman
Hearing date: Nov. 20, 2014
Decision date: Dec. 18, 2014
Details: The complainant was charged with assault causing actual bodily harm following a domestic situation outside of work hours. He was dismissed in March 2013, by letter, with the legal situation cited as the reason. The charges were dismissed by the court in Jan. 2014.
Decision: The tribunal ruled the dismissal was unfair. Terminating the employee before determination of guilt or innocence was “premature, unfair and unreasonable,” the panel ruled,
Award: One week of wages as severance pay, one week of wages as award for unfair dismissal and interest. Total: $2,342.99
Employee v Stuarts Walker Hersant
Hearing dates: June 3 and 20, Sept. 29, 2014
Decision date: Nov. 14, 2014
Details: The complainant, a receptionist with the law firm, was dismissed for “broadcasting a defamatory message” about her employers via Blackberry Messenger, claiming they did not want to hire Caymanians. After an internal investigation traced the phone and internal video surveillance showed the woman typing on the phone at the time the message was sent, she was dismissed for gross misconduct.
Decision: The tribunal decided the dismissal was fair and noted the employee had been issued three written warnings previously.
Employee v Serenity Day Spa
Hearing date: Jan. 7, 2015
Decision date: Feb. 4, 2015
Details: A salon manager was laid off during slow season by the spa and not recalled to work after the agreed time period for the layoff came to an end. The employer claimed the woman had found another job during the time she was laid off and convinced other staff to join her in working for a competitor’s business. The spa closed shortly afterward because of continued economic troubles.
Decision: The tribunal decided there was no unfair dismissal, but the complainant was entitled to severance pay, having been made redundant
Award: Severance pay with interest, $336.96
Employee v Morritt’s Properties
Hearing date: Oct. 14, 2014
Decision date: Nov. 25, 2014
Details: A chef was fired after a shouting match in the kitchen with the general manager, during which it was claimed he approached the man in an aggressive, confrontational manner with a knife in his hand. The chef said he had not been holding a knife during the exchange, which he characterized as a “heated moment” in the kitchen that escalated. A witness statement was given to back up his testimony and the chef requested the release of video footage from the kitchen. The employer did not provide the video footage to the tribunal.
Decision: The tribunal accepted the chef’s version of events and ruled that he had been unfairly dismissed.
Award: Eight weeks of wages as severance pay, eight weeks of wages as award for unfair dismissal and interest. Total: $15,781.82
Employee v Ernst & Young
Hearing dates: Aug. 15, 2011, July 4, 2013
Decision date: Sept. 15, 2014
Details: A female accountant requested five weeks’ vacation to enter an international beauty contest in Vietnam, which was denied by her employer who agreed to a maximum of three weeks.
The employer claims she indicated that she would attend the contest anyway and was prepared to leave the firm to do so. He accepted the word “resignation” was not used, but said her intention was clear. The accountant argued that she had not resigned and had therefore been unfairly dismissed.
Decision: The tribunal ruled that the complainant had effectively resigned from her post when she had signaled her intent to take the five-week vacation whether it was authorized or not. Even if she had not resigned, the tribunal said the employer would have been entitled to dismiss her.
Employee v Harney Westwood & Riegels
Hearing date: June 11, 2014
Details: A legal secretary was dismissed for allowing a lawyer from a rival firm unsupervised access to her computer. The complainant argued that the lawyer, a friend and former colleague, had simply used the computer briefly to print off a lease for a new apartment. She was dismissed, with notice pay, by the firm.
Decision: The tribunal ruled the dismissal was fair but the employee was entitled to severance pay.
Award: One week of wages as severance pay. Total: $1,250
Employee v Country & Western Bar
Hearing date: March 17, 2014
Decision date: April 2014
Details: A cleaner was fired from her job for giving evidence in a labor tribunal hearing on another staff member, who claimed to have been unfairly dismissed. The employer claimed the evidence was false and misleading.
Decision: The tribunal “had
difficulty accepting” that the woman’s evidence in the prior hearing was misleading and ruled she had been unfairly dismissed.
Award: Nine weeks of wages as severance pay, nine weeks of wages as award for unfair dismissal and interest. Total: $3,600
Employee v Logic
Hearing date: July 15, 2014
Decision date: Aug. 2014
Details: A senior radio frequency engineer with TeleCayman claimed he was effectively dismissed when the company sold shares to Logic. He acknowledged he had been offered a new contract, but said the terms of the contract were not acceptable to him. The company argued this amounted to a resignation.
Decision: The tribunal ruled that the complainant was entitled to notice under his contract with TeleCayman and had therefore been unfairly dismissed.
Award: Five weeks of wages as severance pay, five weeks of wages as award for unfair dismissal and interest. Total: US$15,265.48 plus interest
Employee v Turtle Nest Inn
Hearing date: Nov. 28, 2013
Decision date: July 10, 2014
Details: A housekeeper at a hotel was fired on the spot for failing to clean up cat urine. According to the tribunal’s report, the employer indicated she would be allowed to return to work if she was willing to clean up after the cat. She was later given a new contract, which she refused to sign, saying she did not work with animals.
Decision: The tribunal found no case of unfair dismissal.
Employee v Hurlstone General Contractors
Hearing date: Jan. 15, 2014
Details: The complainant, who worked for the firm on a job-to-job basis for years in a variety of roles, including mason, stone worker, painter and truck driver, claimed he was unfairly dismissed after being sent home from a job site in Little Cayman. After the incident, the man acknowledged he left Little Cayman assuming he had been dismissed. The employer acknowledged the man had been sent home that day for returning late from lunch, but said he had not intended to fire the man and he could have returned to work.
Decision: The tribunal ruled there was no evidence that the man had been dismissed.
Employee v Chrissie Tomlinson Memorial Hospital
Hearing date: June 25, 2014
Decision date: July 21, 2014
Details: A midwife was fired after refusing to come in to work on a scheduled day off to relieve another member of staff in assisting with a mother going into labor. According to the tribunal, the manager who dismissed her wrongly believed that nurses were on call at all times. In fact, off-duty nurses could be called in only for emergency situations. The birth was handled without issue by the doctor and another nurse.
Decision: The tribunal decided that the woman had been unfairly dismissed.
Award: Ten weeks of wages as severance pay, 10 weeks of wages as award for unfair dismissal and interest. Total: $22,000 plus interest
Employee v RBC
Hearing date: Dec. 5, 2013
Decision date: Feb., 2014
Details: A senior bank employee was dismissed after providing backdated reference letters to a client with whom the bank had chosen to end its relationship. The employee, the tribunal heard, had contested the decision to “demarket” the client, with whom he had a personal relationship. The tribunal found that he had not acted improperly in contesting the decision to demarket the client and had declared his personal relationship from the outset.
Decision: Referencing some mitigating circumstances, the tribunal said the decision to issue reference letters did not amount to a firing offense.
Award: Seven weeks of wages as severance pay, seven weeks of wages as award for unfair dismissal and interest. Total: US$43,389.44