Industrial Court dismisses unfair dismissal case brought by AUA’s former HR manager

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The Industrial Court has dismissed an unfair dismissal case raised by the former Human Resources Manager of the American University of Antigua (AUA), stating that Fitzmore Burns’ misconduct was “inconsistent with the fulfilment of the express and implied conditions of service”.

The case stemmed from AUA’s dismissal of Burns in June 2015, on a number of grounds including gross misconduct, failing to complete urgent and critical assignments before taking vacation leave, and failing to make proper arrangements for an adequate handover of duties prior to going on vacation.

Burns was hired by the AUA in 2012 under the direct supervision of the Vice President of Administrative Services, Vernon Solomon, and the Director of Administrative Services, Martin La Barrie, with duties relating to human resource management.

These duties included preparing an employee handbook/disciplinary action manual in accordance with the Antigua and Barbuda Labour Code and labour standards.

Additionally, Burns was entitled to an annual vacation of 12 working days, subject to mutual agreement between the parties.

Three years on from his appointment, in May 2015, AUA officials reportedly met with Burns to discuss his performance and the performance of his department.

However, on that same day, the then HR manager applied for vacation between June 10 and June 19 which was signed off by the Director of Administrative Services but not by the Vice President.

Between May 11 and May 16, a series of conversations were held over Burns’ “inability to meet set deadlines” as his supervisors noted that he was tasked with completing an “employee handbook, health and safety policy, disaster policy, training agenda, HRM software and an employee appraisal policy”.

During this period, the university lamented that “the perception is that you are not to be trusted, even as stated by the union representatives, and that you are inefficient”.

“The issues stated above can no longer be tolerated nor accepted. It is envisaged that you will make sufficient changes with immediate effect. If you need assistance, please do not hesitate to ask. Please be reminded that this is not the first time I have stated this to you,” Solomon wrote to the claimant.

However, the university noted that it pledged support for Burns and his department as it hoped for immediate results.

However, on June 5, frustration with Burns seemingly reached boiling point as he firstly cancelled his previously approved vacation application and later applied to leave two days early on June 8; this did not receive any approval from either Solomon or La Barrie.

On June 5, the university issued an extremely detailed warning letter to Burns where they listed all the assignments with specific deadlines yet to be completed by him, complaints by two employees about his “unprofessional communication”, and a number of issues which the university said had placed them in a compromising position.

The then HR manager was repeatedly reminded by both his personal assistant, the HR Assistant Manager Seymone Smith, and Vice President Solomon via email, that he was scheduled to meet with Solomon in the morning.

Regardless, Burns reportedly sent an email to all employees, copying Solomon in on the correspondence, that he would be taking vacation from June 8 until June 22—for which he was told he had no permission to proceed.

He was dismissed on June 13 by the university.

In his application to the Industrial Court, Burns sought to argue that whenever he applied for annual vacation that it was not part of the procedure for him to present it to the Vice President—except in cases where he requested pay in lieu of vacation—but he simply would submit the form to the Deputy Director.

He also argued that he was not inefficient but was experiencing several challenges which caused delays in completing tasks in a timely manner.

Based on the litany of facts laid before the panel of judges, the Industrial Court found that the employee had engaged in gross misconduct to “such a magnitude that the employment relationship could not reasonably be expected to continue”.

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