The Caswel Franklyn Column – Barbados Courts Finally Applied Severance Law After 45 Years

Caswell Franklyn, Unity Workers Union

Caswell Franklyn, Unity Workers Union

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?

Tags:

22 Comments on “The Caswel Franklyn Column – Barbados Courts Finally Applied Severance Law After 45 Years”

  1. Well Well & Consequences January 1, 2017 at 1:25 AM #

    And of course the petty minded employers on the island who believe themselves to be slave masters took full advantage of false terminations of employees, seeing that it’s a 45 year old trend, will they continue to ignore the ruling, without consequences.

    Happy New Year Caswell, your battle has just started.

    Happy New Year to all on BU.

    Like

  2. Caswell Franklyn January 1, 2017 at 2:20 AM #

    Well Well

    A happy New Year to you also.

    They won’t continue to ignore the ruling if I have anything to do with it. As a matter of fact, there are some workers who have been dismissed within the last year who can now benefit from the ruling. They have a year to file their cases if they have missed the three-month deadline to file before the Employment Rights Tribunal.

    Like

  3. Violet C Beckles January 1, 2017 at 3:38 AM #

    Happy New Years to Caswell, Well Well, Bush Tea and Look ,where ever she may be , Mr Vincent at the labor board have been in the pockets of the masters for a long time, He got his pay before the ex workers , The Masters make fun of the workers to say we have him in our pocket and file and talk all you like , noting will come of it ,All Heads of Each government department needs to be looked at and 90% or more needs to be removed, They are to dirty to clean up,
    Trump in 19 more days,

    Like

  4. Ping Pong January 1, 2017 at 7:39 AM #

    Happy New Year to all readers.

    What is the compensation for an employee dismissed through no fault of his own?

    Does this act apply to Government workers?

    Like

  5. Artax January 1, 2017 at 7:40 AM #

    There are other situations where I believe the laws encourage employers to exploit employees.

    A friend of mine, for example, was employed as a maid at a private residence for approximately 40 years. I was appalled at the things the “mistress” wanted her to do, including working on Christmas day, preparing and cooking food for guests and cleaning up afterwards. If she went on two weeks’ vacation, on her return to work, she would be confronted with a sink full of unwashed wares that were used during the duration of her leave.

    Unfortunately, my friend’s foot developed arthritis to the extent that she was no longer able to work and was subsequently retired from medically unfit. The hurtful and disturbing things about this situation are:

    1) After working 40 years the “mistress” is not obligated to pay severance……. she has to rely on the NIS and, (as I was told by a personal mate who works in the NIS), the “mistress” conscience.

    2) NIS was extremely tardy in paying sickness benefits.

    3) In June 2016, an NIS officer visited her to compile information to facilitate the payment of invalidity pension and told her as a result, she was told that she would no longer receive survivors’ pension (her husband died).

    4) The last sickness benefit she received was in April 2016 and as at December 30, 2016 she has not received any payments nor have her queries relative to the payment of the invalidity pension have been answered. The last time she called the NIS (Tuesday, December 13, 2016) an officer told her “That gine have to wait till next year.”

    January 2017 would be 9 months this poor lady has been without any sort of income, while NIS employees continue to receive their salaries. How could it take the NIS 9 months to calculate an invalidity pension?

    Maids, gardeners, chauffeurs and baby sitters who work at private residences are often not given “pay-slips” with their wages. Some wicked employers would pay these workers less severance than they are entitled because they are unable to verify actual wages received.

    It is also unfortunate that this category of employees do not have union representation.

    Like

  6. Dompey January 1, 2017 at 9:06 AM #

    Artax

    “It is unfortunate that this category of employment doesn’t have union representation”

    Well then it is time to establish a labour department to represent the basic rights of the non-union worker.

    Like

  7. ac January 1, 2017 at 9:23 AM #

    NUPW hopes for closer Govt ties

    Hope Springs Eternal for a new and better beginning

    THE NATIONAL UNION of Public Workers will continue to protect the rights of workers, but at the same time it wants to improve its relationship with Government, says president Akanni McDowall.
    “The union looks forward to even greater cooperation between the union and Government agencies in 2017 and beyond, as we seek to foster a harmonious industrial relations environment,” the NUPW president said in his year-end statement.
    McDowall said that last year was a trying one for industrial relations in Barbados.
    “The year 2016 had its share of unresolved disputes, but nonetheless, there was much for which to be thankful, as the year came to a close,” he said.
    .nationnews

    Like

  8. David January 1, 2017 at 10:52 AM #

    The link to his Frankly Speaking column to which Caswell referred was updated to the article.

    https://shar.es/1DxK5J

    It seems Caswell was a little ahead f the learned legal fraternity.

    Like

  9. Gabriel January 1, 2017 at 11:53 AM #

    How come EWB did not clarify the misguided judgements.

    Like

  10. Wily Coyote January 1, 2017 at 11:57 AM #

    @ Caswell

    Now that the “Court”(not UK) has ruled on this issue,my question is will anything change.

    Like

  11. Pachamama January 1, 2017 at 12:35 PM #

    Caswell talks about a certain kind of victory where the costs are too high.

    But the whole chessboard seems anachronistic.

    We find it difficult to understand how this legal framework could be relevant, in 2017, given developments elsewhere.

    Not even a too-costly victory, after 50 years, makes any change, in the speed, of the social freight train headed our way.

    Like

  12. David January 1, 2017 at 12:38 PM #

    Is it reasonable to suggest that this matter should have been addressed years ago within the vaunted social partnership? What is the purpose of the tripartite entity if not to force material change for the benefit of all stakeholders. In this case the workers.

    Like

  13. Caswell Franklyn January 1, 2017 at 12:59 PM #

    David

    I keep telling you that the Social Partnership was never intended to benefit workers. It only springs into action when workers are about to take action. Can you name a time when the Social Partnership intervened and the workers benefitted?

    Like

  14. David January 1, 2017 at 1:27 PM #

    @Caswell

    To be honest can’t recall anytime the social partnership played lead in any serious IR conflict.

    Like

  15. HAMILTON A HILL January 1, 2017 at 2:01 PM #

    This is a very big part of the reason why for as much as I abhor the Principles, policies and practices of the present administration, I found fault only with the way it was implemented and not with the actual cessation of free tertiary education in Barbados. Too many of us have too easily forgotten from whence we came, and after having reaped the benefits provided by the blood and sweat of the average Barbadian labourer, we show stubborn resistance to the concept of giving back to the society that so willingly supported us. That’s why in 2017 the antiquation being fought by Caswell is still very much a part of the Barbadian landscape. The gap that divides the Haves and the Have-nots continues to expand, and as long as I get mine, to hell wid de others. The obvious wrongs can surely be righted………but for a fee of course!

    Like

  16. Well Well & Consequences January 1, 2017 at 2:07 PM #

    “If she went on two weeks’ vacation, on her return to work, she would be confronted with a sink full of unwashed wares that were used during the duration of her leave.”

    That’s how nasty the minorities on the island are, they hate to clean their own filthy yards and houses and most dont like even washing their own asses, but they think they got an island filled with black slaves whom they do not need to pay livable wages or decent benefits.

    Had one visiting because of a family connection and she downright refused to bathe, I am like, get ya musty ass in the shower or get out of my house or I will throw you out.

    Black people on the island need to up their games and stop seeing themselves and their labor as being worth nothing. ..stop letting these lazy, greedy beasts steal their labor.

    Like

  17. ac January 1, 2017 at 4:45 PM #

    Annanki Speech speaks of Hope ,,ac hoping that seeking resolution in 2017 would be met with amicable high regard for Respect beginning at the bargaining table
    2016 saw a flurry of political banter thrown down as the gauntlet by which disagreements where heard and supposed to be the anchor for resolving workers disputes
    Hopefully cooler heads would meet at the bargaining table with an interest of what is in the best interest of a country anchored sufficiently and safely to a doctrine of pularism

    Like

  18. Gabriel January 1, 2017 at 6:54 PM #

    Carl Palidino one of Trump’s henchmen is under heavy manners in Buffalo and in the US generally for his most churlish and ill conceived remarks on the Obamas.To say Paladino is ill bred is to state the obvious.To say America has returned to the dogs is stating the obvious.
    ……”there are those who,when they hear the word BLACK,they tremble”…..Lamming G,
    Carifesta 1981 Bridgetown.

    http:///www.huffingtonpost.com/entry/carl-paladino-resign_us_58644b7cc4b0eb5864881ch

    Like

  19. Well Well & Consequences January 2, 2017 at 5:35 AM #

    Dont mind lowlife Paladino, the black folks upstate will deal with the slime, kick him off the school board, let him go in the white house and ooze.

    Like

  20. Reco Anthony January 2, 2017 at 9:28 AM #

    @GABRIEL WHAT ABOUT TAYLOR, A BEVERLY WHALING DOWN IN WEST VIRGINIA, TAYLOR TWEET NASTY COMMENT ON FIRST LADY, WHALING TOLD TAYLOR, U MADE MY DAY…….THEY WERE SENT PACKING…TRUMP HENCHWOMEN

    Like

  21. Gabriel January 2, 2017 at 10:02 AM #

    Trump has what Bajans call ‘a lot ‘o lip’ or ’nuff mout’ now he is not President.Everybody waiting to see how he handles the office post Jan 19.For sure the fringe groups of rednecks are not pleased thus far with his billionaire nominees.It wasn’t what they bargained for and not what he promised on the campaign trail.

    Like

  22. David January 12, 2017 at 9:40 AM #

    Now we read about lawyers presenting to the Employment Rights Tribunal clogging up the system -as usual. The question is what the hell will the Chairman Hal Gollop do about it or is this another toothless entity.

    Like

Join in the discussion, you never know how expressing your view may make a difference.

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: