The Caswell Franklyn Column – Employment Rights Gone Wrong
While addressing the recent National Insurance awards ceremony, the Minister of Labour, Senator Byer-Suckhoo, complained that employers have been observing the letter of the law but not the spirit of the law, as they relate to the Employment Rights Act (ERA). From my vantage point, it appears that the statement has some validity but it is an admission from the Minister, who piloted the legislation through the House of Assembly, that the provisions of the act were not crafted with enough precision to enact Government’s intent and policy.
Prior to the coming into force of the ERA, it was generally accepted that employers had been using their dominant position to disadvantage workers, even in the face of what people thought to be a vibrant trade union movement. The provisions of the ERA was therefore meant to bring some equity to the employer/employee relationship. Unfortunately, that act has for the most part given workers the illusion of protection for two main reasons: (1) until February this year there were no criminal sanctions that could have been applied to an errant employer; and (2) the Employment Rights Tribunal has been completely ineffective in carrying out its mandate.
At face value, if you were to read the ERA, it would appear that the act has decisively skewed the employer/employee relationship in favour of the employee. That is merely the perception that employers and their representatives are peddling. From the perspective of someone who practices industrial relations on behalf of workers, the stark reality is that workers have been given new rights but accessing them have proven to be, to put it mildly, problematic.
The minister glibly referred to the problem as employers not living up to the spirit of the law. Maybe, that is her way of saying that the ERA has given new rights to workers but at the same time, it has provided too many obvious loopholes for employers to ignore those rights. Even when workers are given a mechanism to enforce their rights, in the form of the Employment Rights Tribunal, they have been suffering in a kind of purgatory waiting for salvation from the tribunal.
It is my understanding that in the four years of the tribunal’s existence, approximately 300 cases have been filed but so far less than 10 matters have been completed. As a result of this situation, employers have been allowed to take unfair advantage of workers because of the length of time it takes to get a matter heard. Please forgive me for using a personal experience to bear out my point.
A worker sought my assistance alleging that he was unfairly dismissed. After listening to his story, I called the employer and pointed out that in dismissing this worker, they had breached the mandatory provisions of the ERA. And in so doing, they were liable to pay compensation for unfair dismissal. The employer agreed and sent the worker a text message to say that he was entitled to compensation of $213,000.
The employer told me that I should contact their lawyer, a prominent queen’s counsel, who was instructed to prepare a release for the worker to sign when he received his cheque. When I called the QC, he told me in no uncertain terms that I would win the case if it ever get to a tribunal but that would take three years and he was sure that the worker could not survive without income for that period.
This unscrupulous queen’s counsel then advised an equally unscrupulous employer to rescind the offer and propose a settlement of $90,000 on a take it or leave it basis. Unfortunately, the lawyer had read the situation correctly. The worker had only recently refinanced his mortgage and was reluctantly forced to accept the revised offer.
Section 27 of the ERA also provides an avenue where employers abuse workers. Subsection (1) provides that an employee has the right not to be unfairly dismissed by his employer. But then at subsection (3) that right does not apply if the worker had not been continuously employed for a period of not less than one year. As a result, employers have been hiring workers and terminating their services after eleven months.
My suggestion to the Minister of Labour is to stop all of this long talk and get cracking on amendments to fix these two areas urgently.