A physical education teacher who challenged his employer’s decision to make his post redundant at the height of the COVID-19 pandemic was adjudged by the Industrial Disputes Tribunal (IDT) to have been unjustly terminated and is to receive $2 million as relief.
The IDT delivered its decision in the dispute between American International School of Kingston (AISK) and Allan Roper on October 24, 2023 after hearing submissions over five sittings between July 12, 2023 and August 30, 2023.
Roper was employed to the school on a fixed-term contract on September 16, 2013 and through a series of promotions ended up as athletic director, the position he held at the time his position was made redundant on August 1, 2020.
On March 8, 2021 his attorney wrote to the school contesting the redundancy, arguing that it was not genuine. The school replied, outlining the reasons for the redundancy, but that was not accepted, so the matter was referred to the Ministry of Labour and Social Security for conciliation. However, those efforts were unsuccessful; therefore, the ministry referred the dispute to the IDT on November 25, 2022.
The IDT heard that Roper was invited, via a June 1, 2020 e-mail, to a meeting scheduled for June 2, 2020 at 10:30 am. The subject line of the e-mail referenced ‘Invitation: Allan Scheduling and Contract’. Roper enquired as to the context for the meeting and if there was anything he needed to prepare. However, he was advised that he need not prepare.
The meeting was chaired by Susan Canobie, head of school, and included Ingrid Fitt, operations director, representing the Human Resource Department.
The IDT heard that Roper was told that due to the impact of the pandemic on the school’s operations, his position would be made redundant with effect from August 1, 2020.
The school’s attorney, Emile Leiba, explained that AISK was forced to close indefinitely in March 2020 based on the Government’s directives regarding the pandemic, and its operations and students’ enrolment for the September 2020 academic year were severely impacted. He also noted that athletic activities at the school were halted, with no clear signs of a return to normality, and as a consequence the school had to make a number of positions redundant, including the position of athletic director.
Fitt, who was AISK’s sole witness, confirmed that the school was mandated by the Ministry of Education to close all face-to-face classes in March 2020, and as a consequence it began conducting classes online.
She said that some of the international students and their families left Jamaica as a result of the closure, and the board decided to take on the task of restructuring the budget as student enrolment, which stood at 270 at the end of June in the 2019-2020 academic year, had fallen to 230 in the 2020-2021 registration, resulting in a loss of US$588,000.
The school, she said, took several steps to manage its operations, including cuts in salaries of between five per cent and 20 per cent, freezing salaries, changing the full-time status of some employees to part-time, and completing redundancy exercises for six posts, including the one held by Roper.
Fitt also told the IDT that, in the case of the athletic director, the school was uncertain as to what time frame existed for a return to normality, and since there could be no physical or otherwise sporting activities, “the school took the decision that it would be logical to make that position redundant”.
However, under cross-examination, Fitt admitted that in February 2021 the school had placed a newspaper advertisement for the post of athletic director, but said that the position would not have been filled before August 2021. She said that although the school was still uncertain as to when face-to-face activities would resume, they nevertheless wanted the person at hand in anticipation of a resumption of physical and sporting activities.
She also acknowledged that in May 2021 an advertisement for the post of student life director was published in the newspaper and that it was similar to that of athletic director. She emphasised, however, that the May 2021 advertisement with the change in nomenclature had nothing to do with the communications between Roper’s lawyer and the school, but arose because of the additional responsibilities to the position, to include an emphasis on field trips, both local and international. The post was eventually filled by an employee of the school in August 2022.
After hearing submissions from both sides, the IDT said that while the “abnormal and frighteningly unusual circumstances brought on by the COVID-19 pandemic, and the uncertainty as to how long the restrictions and lockdown would have lasted provided adequate and reasonable grounds for any employer to contemplate redundancy”, it could not ignore the fact that two advertisements appeared in the newspaper months later.
The IDT said the job description for first one — athletic director/activities coordinator — mirrored the core functions outlined in Roper’s job description at the time of his dismissal. Additionally, it said that it found “disingenuous at best” Fitt’s explanation that the second job — student life director — would have differed from the previous advertisement with the inclusion of “international field trips”.
“We firmly are of the view that the inclusion of ‘international field trips’ to the May job advertisement was directly influenced by communications received from Mr Roper’s attorney contesting the validity of the redundancy,” the IDT said.
“These two advertisements, we submit, cast a shadow on the genuineness of the redundancy at the time and raise questions as to the real motive behind the decision,” the IDT said.
The tribunal also said AISK ignored the Labour Relations Code and accused the school of deception in relation to the purpose of the June 2 meeting with Roper.