“ ‘Government agencies’ - above board. Are they?"

It wouldn’t be the first time a government “agency” falls foul of ethical practices; the plight of the unpaid Psychiatric Nurses is one example. But, that’s the implied state of affairs in the saga being faced by the BADMC at the time of suspending their CEO; Dr Brian Francis.

It is not sensible to allow the potential legal, but, internal affairs of any organisation play out in public. Since it is in the public domain, as an Employment Law Consultant & Advocate, I have some observations... https://barbadostoday.bb/2021/03/24/judge-to-review-badmc-ceos-sacking/

In this matter, what is surprising is that a Board of Directors is concerned with the termination of a “Clerical Officer”. That being said, it is for the dismissing officer (whomever that may be) to determine whether or not it is reasonable to dismiss, Ms Roberts, for the reason they contend for. That reason, seems unclear.

Be that as it may, the dismissing officer must assess the evidence which gives rise to any termination of contract. Part of that evidence might be a legal opinion. But a legal opinion sought is just that, an opinion. It provides the basis from which to make a decision. Quite why it took 2 legal opinions to advise whether Ms Roberts was due $7000 on termination of contract makes me smile. On a fair reading of the Employment Rights Act, it seems trite to say, if Ms Roberts wasn’t legally entitled to it, she’s hardly going to complain to a Tribunal (besides which, she has no legal right to a claim anyway, she’s been employed less than a year!) Furthermore, there is no statutory requirement in Barbadian law to give notice to an employee who has been employed less than a year – and potentially therefore, no payment. Not even at Tribunal. What particular “breach of contract” is alleged, presumably on the part of the Employer, is not clear. I imagine the dismissal. And even if there was one a simple correction would be reinstatement – and get something for your money.

However, what is reasonable starts as a question of fact. In my opinion, in Dr Francis’ case, it is unreasonable to suspend a staff member without giving a clear statement of the allegation (although it appears the Employment Rights Act does not require the employer to do so). Moreover, even if they did, it would seem wholly bizarre, and, quite likely a breach of the implied term of mutual trust and confidence, if Dr Brian Francis was suspended for exercising what would seem to be his fiduciary duty to tax payers, i.e. ensuring monies are appropriately spent. Especially given his budget has been slashed in consecutive years.

If, in his opinion, there was conflicting reasoning for the termination of Ms Roberts’ contract, one would think he is entitled to censor check that without fear of being penalised. If she was being terminated for “falling afoul of discipline”, the statutory 2 weeks’ notice is inapplicable and is probably not $7k anyway. If it was a redundancy dismissal (‘insufficient work to justify her continued employment) the same would apply – less than a years’ work is not, legally, worth anything let alone 5 weeks wages (say $2,500?). Quite how this wasn’t perceived by the Management before employing her for 6 months is… inexplicable.

Nonetheless, based on what I’ve read in the article, what is clear is that the Employment Rights Act stipulates the actions to be taken by any employer when considering dismissal or redundancy. The HR Management ought to know, Ms Roberts had no enforceable claims and, on a fair reading of the Act, no enforceable redundancy or other, compensation.

So why has Dr Brian Francis been suspended?

In the round, I imagine a lot more than $7k of tax payer’s money has been spent!

Just an opinion.

Steve Prescott (LLB Hons), Employment Law Consultant & Advocate

steve@lr_and_p.com