Employment tribunal decisions published – but names of employers remain anonymous
A raft of decisions made by Bermuda’s employment tribunal have finally been made public — more than a year after a change in the law required their disclosure.
But the parties involved in the disputes have been anonymised, meaning employers found to have mistreated staff have had their identities protected.
Employment lawyer Juliana Snelling told The Royal Gazette she welcomed the publication of the decisions as a “very positive step forward for justice on the employment law front” — even though it was “a year behind schedule”.
But she questioned why the parties were not named and said a client of hers, who won a judgment for unfair dismissal against her employer in June this year, had not agreed that the public decision could be anonymous.
“It follows that our public judgment cannot be anonymous in terms of the parties’ names and we have informed the tribunal of that in advance,” Ms Snelling said.
She said Catherine Araujo, who was awarded compensation of $53,015 from the dental clinic where she worked for more than six years, was still waiting for her decision to be published, though it should have been already.
The Employment Act 2000 was amended last year, making it a statutory requirement for the labour and economy minister to publish awards made by the Employment and Labour Relations Tribunal within 90 days of the conclusion of a hearing.
The amendment came into effect on June 1, 2021, but decisions have only very recently been published on the Government’s website.
The Royal Gazette discovered that they had been released after submitting a public access to information request, which was denied on the basis that the decisions were already available online.
Ms Snelling, who has practised employment law for almost three decades, said: “Being able to review past decisions and analyses by the Employment Tribunal is a win-win for employees, employers, the members of the tribunals and attorneys who conduct cases before the tribunal.
“As lawyers, we no longer have to engage in guesswork as to how the tribunal interprets certain sections of the Employment Act 2000, but rather can learn from past precedents and inform our clients as to how a similar issue to theirs was decided in the past and advise them accordingly.”
The lawyer said last year’s amendments requiring decisions to be published and for hearings to take place in public if a party demanded it "both pay heed to the inveterate principle of open justice — that judicial proceedings should be conducted in an open, public and transparent manner.
“This helps the general public to monitor whether the justice system is functioning properly and treating litigants fairly.”
But she added that no parties’ names were included in the 24 judgments so far disclosed.
“Thus even employers who have deliberately breached their clients’ rights stand protected by anonymity,” Ms Snelling said.
“The Act as amended in June 2021 is such that anonymity is not mandated nor can it be presumed.”
She said the Act stated that if a party “reasonably wishes to conceal any matter, including that he was a party” then the tribunal must give directions on what action would be taken regarding anonymity when the decision was made public.
Ms Snelling said that for the parties’ to be anonymised, a party had to have requested it and the tribunal had to have considered whether that was reasonable, before giving directions.
She said: “I question and seriously doubt whether this statutory process happened in the 24 cases whose decisions have now been published on an anonymous basis.”
The lawyer said the Employment Act contrasted sharply with the Human Rights Act, which expressly prohibited the publication of the names of parties in decisions by the Human Rights Tribunal.
The members of the Employment Tribunal panel vary for each case and Ms Snelling suggested they could not give directions now as they no longer had official authority to do so.
Ms Snelling said litigants involved in the 24 published cases might want to contest the redacted parts of their judgments, in circumstances where no applications were made or directions given by the Employment Tribunal on concealing matters.
The decisions include a number of cases where employers were found to be in breach of employment law, such as one boss who failed to give a work permit holder — a hair stylist and nail technician — base pay, paid vacation or paid public holidays. The panel ordered that employer to pay the former employee more than $50,000.
Ms Snelling noted that the Act gave unions and employers some protection from the publication of information obtained by the tribunal which was not disclosed through evidence at a hearing.
“Thus any published decision must exclude or redact any information revealed in the hearing about a union or business that was not otherwise available — eg, that was not of public record — unless both parties consent.”
There was no response to questions put to Jason Hayward, the Minister of Economy and Labour, by press time.