Editorial: A teachable moment

The Oxford English Dictionary defines a teachable moment as “an event or experience which presents a good opportunity for learning something about a particular aspect of life”. One such for local employers would have been the recent decision of the Court of Appeal in Trimart Inc. v Glenda Knight. 

There exists a popular, though incorrect, assumption in Barbadian employment relations that once an employee has had his or her employment terminated, he or she is automatically entitled to a severance payment. This is perhaps owed to the nomenclature of our relevant legislation that, although styled on the Redundancy Payments Act 1965 of the UK, is entitled the Severance Payments Act [emphasis added], thus leading to an assumption that once an employee is severed or dismissed, he or she becomes automatically entitled to what is known in other jurisdictions as a termination or severance allowance, a sum that represents the employee’s equity in the job and assessed according to his or her years of service. 

The belief might be further assisted by the statutory presumption that a dismissal is one for reason of redundancy [thus entitling the employee to a severance payment], subject to disproof by the employer. According to section 38 (2)(b) where relevant –

“…An employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed because of redundancy…

Given the rebuttable nature of this presumption, it should be clear that the local employer would be eager to learn of the nature of the evidence that might suffice for a cogent rebuttal.

Unfortunately, the Court of Appeal was not tasked with this precise remit in the case, although it did provide some instruction as to what evidence will not suffice.

Having accepted that the cogency of the employer’s evidence in rebuttal was exclusively a matter for the Tribunal below, the Court, quite rightly, did not see it fit to disturb a finding that neither the claim that the dismissal of the employee was in accordance with the terms of her contract of employment nor that her former job was being performed by someone else as a consequence of a restructuring exercise sufficed to displace the presumption.

What then is an employer to do?

It may be argued that since it is established that a severance payment is payable only in circumstances of a redundancy, the employer’s evidence in rebuttal should be premised on the notion that redundancy was not the reason for the dismissal of the employee. In other words, since there will be a situation of redundancy, according to section 3 of the Act where either “…the employer has ceased or intends to cease to carry on the business for the purposes of which the employee was employed by him or has ceased, or intends to cease to carry on that business in the place where the employee was so employed” or where “…the requirements of that business for employees to carry out work of a particular kind or for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish…” the rebuttal should be directed towards a repudiation of the assertion that any of these circumstances exist.

Any such evidence advanced in rebuttal should be clear, comprehensive and forthright. As Burgess JA noted in the unanimous judgement of the Court, the employer “gave no indication, for example as to the duties [of] Ms Knight’s replacement vis-à-vis Ms Knight’s duties...”

In such a scenario, the rebuttal of the statutory presumption could scarcely succeed, since there would have been no indication that the second part of the redundancy circumstance stated above did not exist.