The Caswell Franklyn Column – Termination of Employment Claim Procedures Made Simple
My last column, on severance pay that was published on New Year’s Day, generated a whole slew of phone and email queries from persons who had lost their jobs over the years. The most frequently asked question came from persons who wanted to know if they can now make a claim for severance payment, in light of the recent court decision.
It really hurts my heart to have had to say to them that their claims would be out of time. In some cases, they had sought legal advice that has now proven to have been incorrect. Others claimed that they enquired at the National Insurance Office, only to be told that their dismissals were not as a result of redundancy and that they would have to go to court. That advice was also incorrect but to be fair to the NIS staff, they were only following previous severance payments tribunals rulings.
In today’s column, I have decided to offer some guidance to workers who have lost their jobs. Mind you, it is not intended to be a definitive work on the subject and it is always advisable to seek professional assistance.
Workers in Barbados’ private sector have three avenues to pursue a claim for compensation, in the event that their services were terminated. Firstly, a dismissed worker can go to court and claim damages in wrongful dismissal if the termination was such that the employer breached the terms of the employment contract. A claim for wrongful dismissal must be filed within six years of the dismissal.
A claim for severance payment can be made to a severance payments tribunal where the employee lost his job because of redundancy or has recently been clarified by the Court of Appeal, if the worker lost the job through no fault of his own. Also, an employee can claim a severance payment from his employer where he was laid off or kept on short-time for thirteen or more consecutive weeks or for sixteen weeks within a period of twenty-six weeks. In addition, a worker can claim severance pay if he terminates his own services (resigns), by reason of the employer’s conduct. Some examples include but are not limited to: sexual harassment; using abusive language to the worker; failure to pay wages when they become due; or changing the employee’s terms and conditions of employment, without the employee’s consent.
I can’t stress enough that it is always best to get professional help before taking any of these steps. It is also important to note that a claim for severance payment can only be made to the Severance Payments Tribunal. And that it must be done within one year of the dismissal.
The third avenue through which a dismissed worker can seek compensation is the Employment Rights Tribunal. A worker, who believes that his dismissal is unfair, must first make a complaint to the Chief Labour Officer (CLO), within three months of the dismissal. He then has forty-two days to effect a settlement of the complaint. Failing that the CLO shall report the matter to the Employment Rights Tribunal, who, according to the legislation, shall “proceed forthwith to consider the complaint”. I am not trying to be funny but based on experience, it would appear that the tribunal has somehow interpreted “forthwith” in some cases to be as long as three years.
If someone, who is unfamiliar with how things work in this country, were to look at the laws that regulate the employer/employee relationship, he would be impressed and would probably come to the conclusion that Barbados is a workers’ paradise. Unfortunately, nothing works as expected from the lofty words of the legislation. Cases languish in all three systems and workers are left to suffer because, in my view, Government does not see workers’ rights as a priority.
The backlog in the courts is legendary but it is as bad or worse when matters go before the severance payments or the employment rights tribunals. The main reason for the chronic delays before both tribunals is that Government continues to appoint chairmen of the various panels that already have busy full time careers and only the workers suffer.