Consultant warns Industrial Court ruling on job abandonment could undermine worker protections

A human resources consultant is calling for a review of a recent Industrial Court ruling that found a Carlisle Bay Resort chef had abandoned his job, warning that the decision could set a troubling precedent for labour relations in Antigua and Barbuda.

In a March 19, 2026 letter to the Antigua and Barbuda Workers’ Union, Javonson Willock, managing director of ConsultHIM and a specialist in industrial and labour relations, said the Court’s decision in Akeele Thomas v Carlisle Bay Resort raises “serious concerns” and may warrant an appeal.

Willock questioned whether an employer can lawfully stop scheduling an employee after a period of certified sick leave, remain silent, and later rely on job abandonment as a defence. He suggested the ruling appears to answer that question in the affirmative, a position he argues could weaken established worker protections.

The Industrial Court, in its February 6, 2026 judgment, dismissed Thomas’ claim of unfair dismissal, finding that there was no evidence the employer had terminated his employment.

Instead, the Court concluded that Thomas had abandoned his job after failing to return to work or maintain adequate communication following an extended period of sick leave that ended in March 2020.

The case arose after Thomas, who had worked as a chef primarily on the overnight shift, was temporarily laid off in 2019 when the resort discontinued its overnight kitchen service. He later went on certified sick leave for several months.

According to the Court, Thomas did not return to work after his sick leave expired, did not submit further medical certificates beyond March 2020, and did not sufficiently engage the employer to clarify his status. The Court accepted the employer’s position that it was uncertain of Thomas’ intentions and ultimately formed the view that he had abandoned his job.

Critically, the Court found that being removed from the work roster was not, in itself, proof of dismissal. It also ruled that there was no clear resignation and declined to consider constructive dismissal, noting the issue had not been properly raised in the proceedings.

Willock, however, argued that the judgment places an unfair burden on employees while overlooking the employer’s responsibility to manage the employment relationship.

He contended that, as a matter of good industrial relations practice, employers have a duty to roster and notify employees of their return-to-work schedule following sick leave. He said he was unaware of any legal precedent that requires employees to initiate contact to determine their work schedule after being certified fit to return.

The consultant also criticised the Court’s narrow interpretation of dismissal, arguing that termination can occur through conduct, not just formal notice. He warned that leaving an employee “in limbo” without scheduling or communication could, in practice, amount to dismissal.

In addition, Willock took issue with the Court’s refusal to fully engage with the concept of constructive dismissal, describing it as a technical approach that prioritises procedural rules over fairness.

He further warned that the implications of the ruling could allow employers to avoid liability by taking no formal action — neither scheduling the employee nor issuing termination — and later asserting abandonment.

“If this approach is allowed to stand, it risks undermining fundamental protections in our labour system,” Willock wrote.

Despite these concerns, the Court maintained that the burden of proof rested on the employee to establish that he had been dismissed. Finding no such evidence, and concluding that Thomas’ conduct objectively amounted to abandonment, the Court dismissed the claim.

The decision leaves unresolved broader questions about employer obligations following extended sick leave and may prompt further scrutiny from labour advocates and legal practitioners.

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