The Caswel Franklyn Column – Barbados Courts Finally Applied Severance Law After 45 Years
The headline on page 3A of the Christmas Day edition of the Sunday Sun stated: Court clarifies severance issue. To my mind, a more appropriate headline would have been: Court finally applied the severance law after forty-five years”.
Over those years, employers who wanted to rid themselves of employees, who did not commit any offence, would simply resort to giving the employee notice or pay in lieu of notice and send the worker packing without compensation. The employer would claim that he was terminating the contract in accordance with the terms of the employee’s contract. Apparently that action resulted from the best advice available from lawyers and industrial relations consultants, who relied on the English common law position, and who were supported by decisions coming out of our courts.
Common law is the law developed by court decisions rather than by statutes passed in parliament. As a colony of England, Barbados received the judge-made law that applied in the mother country.
At common law, an employer is only required to give reasonable notice to terminate the employment of an employee. Failing that the employee would have a claim for damages in wrongful dismissal. Lord Reid in the case Malloch v Aberdeen Corporation 1971 stated the principle succinctly:
“At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant’s only remedy is damages for breach of contract”.
That is still the common law position in Barbados but in 1971 parliament intervened in the employer/employee relationship by giving a worker, who had been dismissed through no fault of his own, the right to compensation for past services provided he had been employed for a minimum of 104 weeks. This right can be found at section 16. (1) of the Severance Payments Act.
That act, at section 3 part II, deals primarily with dismissals caused by redundancy. However, section 16. (1) deems other dismissals to fall within the ambit section 3 where certain conditions are met. Section 16. (1) in essence deems a person to be dismissed for the purposes of the Severance Payments Act if he had been dismissed with or without notice; or where a fixed term contract came to an end; or where a person terminates his own services by reason of the employer’s conduct. Mind you, the person would have to have been working for no less than 104 weeks and lost the job through no fault of his own.
I have been waging a campaign against this misinterpretation of the law since the early 1990s when I lost my first case and, so far, the only case that I have lost before a severance payments tribunal. This Court of Appeal’s decision has only given me a pyrrhic victory in terms of my record but what continues to trouble me to this day is that the man who I represented did not get a single cent after working for over twenty-five years.
On December 30, 2012 the Sunday Sun published one of my Frankly Speaking columns which addressed this issue and I recall some of the adverse comments. I am not gloating but I am delighted to see that the Court of Appeal has finally come around to the only sensible and purposive interpretation of the relevant section of the Severance Payments Act. Even so, my delight is tempered by the injustice that so many persons suffered when there was legislation on the books to prevent such. Why did it take forty-five years for the severance payment tribunals and courts to do the right thing?