Sep 29, 2014

Employer Fined, Employee May Have To Sue

Campbell’s Auto Repair and Sales Ltd. was fined $2,500 last week after Magistrate Angelyn Hernandez found that the company had refused to comply with an order of the Labour Tribunal Board. 

The order was to make compensation to a former employee for severance pay and unfair dismissal no later than July 27, 2009. The sum involved was $12,000. 

As of the day of sentencing, the money had not been paid. The magistrate described as unfortunate the way the Labour Law is worded in terms of how the employee is to get the money. 

The law states that an award made by the Labour Tribunal may be enforced “in like manner to a judgment of the Grand Court for the payment of a sum of money.” 

The magistrate urged the defendant to avoid such proceedings. Crown Counsel Kenneth Ferguson, who successfully prosecuted the matter, later confirmed that if Campbell’s does not pay the award, the employee will have to sue to get his money. 

Attorney Clyde Allen, who represented Campbell’s Auto and company owner Robert Campbell, told the court before sentence was passed that his client “will strive to get a hearing on the matter.” Mr. Campbell’s position was that the employee had walked off the job, but the tribunal had accepted that there was “constructive dismissal.” 

Before trial began in May, Mr. Allen told the court that his client intended to file an appeal of Labour Tribunal’s decision because the defendant had not received notice of the hearing date and therefore was not able to make any representation. 

During the trial, Mr. Campbell said the complainant walked off the job in June, 2008. The next month, he received a call from the Department of Employment Relations saying a complaint had been filed for unfair dismissal. Mr. Campbell said he was told he should write a statement of what occurred, which he did on July 23, 2008, and took it into the DER office. He said he received a summons in September 2009, but knew nothing about the tribunal decision. He also said he did not check his mailbox regularly. 

In setting out her reasons for the guilty verdict, the magistrate noted that Mr. Campbell was an experienced businessman; he had responded to the complaint in July 2008 but took no further action until September 2009. 

She referred to evidence she had heard as to how tribunal hearing notices are sent to interested parties and how registered mail is handled by the post office. 

The magistrate put the issue before her in the form of a question – Was there a refusal to comply? Breaking that into smaller points, she asked: Was there a decision? Was it sent to the defendant? What has the defendant done in relation to it? 

She found that the defendant knew of the tribunal’s decision and had been sent notice of the decision. She found that he refused to take any steps by way of compliance or appeal and he had waited almost five years to lodge an appeal since being aware of the charge. 

In passing sentence, she imposed the maximum fine for a first offense. However, she did not impose any further penalty; the law does provide that the defendant may have to pay $100 per day for each day the offense continues. Based on the date of notification and the date on which the defendant was charged, this could have been another $3,700. 

The penalty section also makes a defendant liable to imprisonment for up to six months

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