Hospital ordered to pay ex-employee $24K for unfair dismissal

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By Robert A Emmanuel

[email protected]

The Industrial Court has ordered the Sir Lester Bird Medical Centre (SLBMC) to pay EC$24,235.58 to a former worker by December 24 as compensation for her unfair dismissal.

The Guyanese-born woman was employed at the hospital for over nine years before she was dismissed in April 2019.

According to court documents, the woman had temporary resident status for years until April 2018 when the Immigration Department rejected her application for renewal and gave her a one-year work extension to process her resident’s permit.

She continued to work as a purchasing clerk without completing the process and in April 25 she was given three months to stay in the country lawfully with the condition that she did not work.

On the same day, the SLBMC received an anonymous tip informing them that the woman was an illegal immigrant whose status was being reviewed by the Chief Immigration Officer. Four days later, the Human Resources (HR) Manager informed the clerk that she would be sent home pending an investigation.

The employee was also told to return to a meeting the next day (April 30) during which the HR Manager informed her that she should not have been on the payroll and should have gotten a work permit, and therefore would not be allowed to return to work until she got one.

The woman then asked to be allowed to go on vacation, which was rejected. Instead, the hospital sent a letter to the Labour Commissioner with a completed work permit form attached, requesting that the woman be granted a work permit.

The same day, the clerk was fired on the grounds that she did not have the required work permit as mandated by the Antigua and Barbuda Labour Code.

Additionally, the court found that the hospital later offered to employ the woman, which would take effect from May 15 2019, considering the Immigration Department’s permission for her to remain in the country until July 24 of that year.

However, the SLBMC was suggested to have said that the woman would forgo any benefits which she had accrued during her nine-year employment.

The woman was granted citizenship sometime in 2021 or 2022, after receiving a three-year resident stamp around September 2019.

The judgement, handed down by a three-member panel of judges last week, said that the hospital had acted unreasonably.

“The fact that [the woman] was not summarily dismissed until April 30 2019, means that she remained an employee in a state of limbo for eight days, five of which were after the [SLBMC] received its tip-off and the Immigration Department had prohibited the continuation of her employment,” the judgement wrote.

It added that the failure of the hospital to act in a timelier manner was “unreasonable” in the face of the end of her work permit on April 22 2019.

The court went on to state that had the hospital paid sufficient attention, exercised due diligence, and taken the necessary pre-emptive steps, the dismissal could have been avoided.

“In that regard, we accept the employee’s evidence that, acting on the advice she received from Immigration Officer Mr Crump and confirmation of the same by the employers’ [CEO], Gary Thomas, she had a legitimate expectation that, as at April 22 2019, pending her successful application for citizenship or the acquisition of a ‘resident permit’, a job letter would have facilitated a further one-year work extension stamp,” the judges wrote.

Additionally, the court found that the hospital could have granted special leave without pay or temporarily ended her contract with a date for recall and timely review of her progress towards regularisation of her status.

In relation to the employment offer, the court said that the unreasonableness of this action was clear as not only would it “conflict directly with the prohibition issued by the Immigration Department but also because it would have required the employee to obtain her work permit, resident permit or citizenship within a mere two weeks after her dismissal”.

They added that it would have been proper for SLBMC to offer a reasonable severance package, or credit her with her years of service, assuring that they would be considered in the proposed future employment.

They also found that the hospital could have been more compassionate in aiding her to regularise her immigration status.

The court ordered the hospital to pay one month’s pay ($2,170.35) in lieu of notice, one month’s pay for the loss suffered in between the dismissal and the trial and one month’s pay for each year of service for loss of protection from unfair dismissal.

The SLBMC has until Christmas Eve to fulfil the order.

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