The Employment Act 2000 (The Act) before the Employment and Labour Relations Tribunal (The Tribunal) between

Jamal Symonds — The Applicant And — The Respondent

Hearing Date - 17" August 2023 Written Summation Deadline - 24'" August 2023

Tribunal Members: e Mr. Derrick V. Burgess — Chairman ¢ McKeisha S. Smith — Deputy Chairman e Paget Wharton — Tribunal Member

IN THE MATTER OF . And Jamal Symonds Background and Terms of Reference

The Tribunal is being asked to consider the claim by Mr. Jamal Symonds [“JS”}, former employee of .[ *] that the Employer has refused to

compensate JS for performing supervisory duties whilst employed at The dispute is filed under Section 37 (4) of the Act and reads as follows:

“Inquiry by inspector (4) Where the inspector a) has reasonable grounds to believe that an employer failed to comply with any provision of this Act; but b) is unable to effect a settlement under subsection (3), he shall refer the complaint to the Tribunal”.

The Tribunal therefore places the burden upon the Employer to set out why, statutorily, or legally, he was not entitled to a Supervisors pay at an additional $2.00 per hour.

Remedy Sought The complainant — Applicant is seeking the following:

e Compensation while performing Supervisory duties; which is an extra $2.00 per hour that would equate to $1.50 per hour on top of the $0.50 raised received in January 2023.

The Employment Act 2000 (The Act) before the Employment and Labour Relations

Tribunal (The Tribunal) between Jamal Symonds — The Applicant Aud - The Respondent

The Case of the Employee

1. JS presented his case as follows:

b.

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He was employed by from August 6, 2020, and was stationed at the (" **) School as a Full-Time Cleaner. At the commencement of his employment at ', he was trained by the then Supervisor for the first two months of employment and was told after one-year of employment, he would receive additional pay. did not replace the Supervisor who left the organization and the location. JS contends, once the Supervisor left that he was responsible for guiding and training the two other full-time cleaners at the" _ . location. Often times he had to assist with English translation for his colleagues with English not being their first language. This was to ensure safety of the products being used onsite. JS indicated that the General Manager, » had continuous conversations with JS and that he was doing “his” job (former Supervisor) telling the other cleaners what to do. During the course of JS’s employment at no supervisor came onsite at . to check on the employees. JS was the point person at and liaised with Mr. . Head of Facilities at JS received a reference letter from the at confirming his quality of work and overall work ethic. The letter was presented as evidence by JS. The also stated that JS was a phenomenal leader of our custodial team at and goes above and beyond his duties, it’s a pleasure to work with him. The contents of the letter from the were not disputed by Management. JS reiterated his need to assist his colleagues and provide them supervision, especially as they didn’t understand English. He was the point person for this location and liaised with He also expressed his desire for a pay increase and presented evidence from a text message exchange where he raised the issue with Mr., Supervisor at Mr. response to JS was “...1 will discuss this at our next management meeting and be in touch in regard to discussion as I do understand your concerns and to value your efforts”. JS closed his case. Ms. [“EV”] representing ‘had no questions nor a rebuttal on JS’ testimony.

The Employment Act 2000 (The Act) before the Employment and Labour Relations Tribunal (The Tribunal) between

Jamal Symonds — The Applicant And — The Respondent

The Case of the Employer

2. EV attended the hearing representing . She presented the following case to the panel:

a. JS applied for the position and did not have any cleaning qualifications or experience. They hired him to be stationed at . and that the prior person at

, that JS was hired to replace, was a Senior Cleaner, not a supervisor.

b. She further indicated that ' , General Manager and Mr. : , Cleaning Supervisor at , would go to the school after hours to assess the job by popping in from time to time.

c. EV indicated she did not understand JS’ comment in reference to “English” (and the staff not speaking good English).

d. She also indicated JS signed an employment agreement with the position title as “Cleaner”; (not Supervisor).

e. She did confirm JS was the “Contact Point” for the school and also that he was a good worker.

f. He asked for a pay increase and got $0.50 increase. He was also paid a rate of $18/hour when he started, which was $2 more than an experienced cleaner, as they had high hopes for JS.

g. She further indicated that JS never approached her or for a pay increase of $1.00; never mentioned “/ need a raise”. EV indicated they did give JS a raise of $0.50 and then this happened. (JS took the matter to the Labour Department and ultimately it was referred to the Tribunal).

h. EV confirmed that ~ is the liaison between the workers and the school. There was never a Supervisor on location. They don’t have Supervisors at locations and is the Supervisor at

i. EV indicated that it was odd for )S to receive a reference from the

at because he doesn’t deal with him. She did however agree with the comment in the letter that stated he is a “phenomenal leader of the custodial team”.

j. JS was employed at for 2 years and did not receive an annual raise.

The Employment Act 2000 (The Act) before the Employment and Labour Relations

Tribunal (The Tribunal) between Jamal Symonds — The Applicant And

— The Respondent

The Re-address by JS

3. JS dismissed EV’s claims that he did not have any cleaning experience because when he was employed at Southampton Princess, he was a washman and a cleaner which was on his resume. He also has expertise in polishing floors.

4. He also confirmed he carried a hand held radio at the location and was the contact person for

5. JS closed his re-address.

Decision

1. It is the Determination of this Tribunal that:

a.

Based on the evidence and testimony presented, the Panel agreed that JS was operating in the capacity of a Supervisor at the location, and he should be compensated accordingly for it. He was also ensuring the health and safety of the workers giving instructions on cleaning products. It was agreed by all at and that he was a good worker. The Tribunal Awards JS a pay increase at a rate of $2.00 ($0.50 having already been given from January 2023) from the end of this probation period to his termination date; at the end of his probation period, it states he knew to have a review of his salary and duties. JS terminated his services in which we do not judged as constructive dismissal. Hence according to Section 40 (1)(a) the tribunal calculates the award as follows: i. Commencement date of employment — 6" August 2020 ii. Probation period end date — 6" November 2020

1. 6 November 2020 - 6"* January 2023 — rate of $2.00 for 26 months - $7,280.00

2. 6 January 2023 — 6" June 2023. rate of $1.50 for 5 months - $1,050.00

3. 6 June — 19 June 2023 (termination date) — rate of $1.50 for 2 weeks (70 hours) - $105.00

4. Total Remedy to the Applicant - $8,435.00

The Tribunal also imposes a civil penalty as the Employer has contravened Section 6 “Statement of Employment” of the Act. Section 6 (1) states an Employer who contravenes this section shall be liable to a civil penalty as may be imposed by the Manager of the Tribunal.

4

The Employment Act 2000 (The Act) before the Employment and Labour Relations Tribunal (The Tribunal) between

Jamal Symonds — The Applicant And — The Respondent

h. Contravened — Section 6 (1) — Statement of Employment (“SOE”) was not signed within a week one week after the employee begins employment with an employer. In addition, there were missing components of the SOE such as 6 (k) no evidence of any disciplinary and grievance procedure; (q) no evidence of Employer’s written policy against bullying and sexual harassment in the workplace and how the policy can be assessed.

i. Section 9 “Overtime” (2) of the Act, there is no payment of overtime or time in lieu stated in the SOE.

j. The Tribunal has imposed a penalty of $1,250.00 for the contravention of the Act as stated above. The maximum fine per Section 44 “Offences” of the Act is $10,000.00.

As per the Act, Section 44M (3c), the Employer has the right to make representation to the Tribunal within 7 days of the date of such notice.

Section 44M (4d) a person has the right to appeal in accordance with Section 440 of this Act.

Section 44M (5 a, b) A person upon whom a penalty is imposed under subsection (3) who does not appeal shall within 21 days either: a) Pay the penalty, or b) Pay a portion of the penalty and apply to the manager for a payment schedule for the remainder.

2. The parties have been advised that the Determination and Order of this Tribunal are final and binding and that a party aggrieved may appeal to the Supreme Court on a point of law only in accordance with Sections 44 of the Act.

The Respondent has 30 days from the date of receiving this Order to pay the Complainant.

Dereck Burgess

Deputy Chairman__ McKeisha Smith

Tribunal Member pe: tb EmbS

Paget Wharton

DATE: 20" day of September 2023

FACTS -3.SYMONDSvs =

35 hours per week @ a rate of $18.00/hour January 2023 - rate increase $0.50 to $18.50/hour €E asked for $2.00 additional pay from year 2020 Start date - August 6 2020

Probation period - 3 months

Probation ended - November 6 2020

$720/week (per payslip) times 52 weeks 35 hours/week * weeks/month

$ 37,440.00 140

Nov 6, 2020 to Jan 6, 2023 - rate increase request of $2.00 (calculate weeks @ rat $ 7,280.00

Feb 6 2023 (SOcent rate increase in Jan) - June 6, 2023 - rate should be $1.50 Jun 6, 2023 to termination date of Jun 19, 2023 (2 weeks) - rate $1.50

TOTAL REMEDY

**Need to determine calculation less any statutory deductions**

lov 6, 2020 to Jan 6, 2023 - rate increase request of $2.00 (26 months) ‘eb 6 2023 (50 cent rate increase in Jan 2023) - Jun 6, 2023 - rate should be $1.50 (5 months) jun 6, 2023 to termination date of Jun 19, 2023 (2 weeks) - rate $1.50

TOTAL REMEDY

Date: Mr. Derrick Burgess - Chairman

McKeisha S. Smith - Deputy Chairman

Paget Wharton -Tribunal Member

$ 1,050.00 $ 105.00 $ 8,435.00

7,280.00 $ 1,050.00 $ 105.00 8,435.00