Caswell Franklyn Speaks – Check Again Senator Nicholls

Submitted by Former Senator and Head of Unity Workers Union Caswell Franklyn

The Daily Nation of March 22, 2022 reported that Senator Gregory Nicholls, speaking from the Senate, claimed that the the legislation (Employment Rights Act) has no ability to compel the award made by the tribunal (Employment Rights Tribunal). I am certain that even though not intended, that statement coming from a renown lawyer, who claims to specialise in employment law, and from the floor of the Honourable the Senate would only serve to give aid and comfort to recalcitrant employers. Even if he were correct, and he is not, what was he thinking? Whose interest was he seeking to serve? Surely not workers that were unfairly dismissed.

Quite frankly, I am surprised by his ill-advised call, in light of the fact that section 47.(1) of the Employment Rights Act makes provision for the exact thing that he complains is lacking. It states:

47.(1). Where

(a) the tribunal makes an order or award in respect of the payment of a sum; and

(b) The Chairman or Deputy Chairman of the Tribunal certifies that the order or award has been so made, and specifies the terms of the order or award in the certificate,

the order or award is enforceable as if it were an order made by a magistrate’s court in civil proceedings.

I am not making this up. The legislation is there for Senator Nicholls and all other employment law specialist to see. I am aware that there have been attempts to enforce judgements of the employment rights tribunal in the magistrates’ court but those attempts have failed to get off the ground because there is no set procedure to guide the process.

It would have been more appropriate for Senator Nicholls to call on the Chief Justice to issue a practice direction to enable the magistrates’ court to deal with that section of the Employment Rights Act that the good senator claims to be non-existent. (Practice directions are merely procedures issued by the court setting out how matters would be dealt with).

See Nation Newspaper Article referenced:

Nicholls: Put bite in ERT law 

NEW GOVERNMENT SENATOR Gregory Nicholls is calling for legislation governing the Employment Rights Tribunal (ERT) to be strengthened as it cannot compel employers to pay monetary awards.

Delivering his maiden speech in the Senate yesterday a few hours after being sworn in, Nicholls, a lawyer who specialises in employment law, said the COVID-19 pandemic had brought to the fore the weaknesses in the ERT.

“The tribunal to my mind needs to have some institutional teeth to enforce its judgement and awards, because we have employers, particularly those employers in the construction sector, that do not honour the awards of the Employment Rights Tribunal and there is no enforcement mechanism to enforce the awards made by the tribunal,” he said.

He said in a recent case the employer did not even show up.

“What Government should do, in my respectful submission, is discuss a framework where Government redresses that issue because employers feel that they don’t have to appear before the tribunal at all. They don’t have to file no documents, send no witnesses, make no submissions and when judgement is given, they

laugh and the legislation has no ability to compel the award made by the tribunal.”

He also charged that employers had taken advantage of the pandemic.

“Businesses have shed workers at an alarming rate and as economic activity has returned to the country, the employment is not coming back with the same rate in which it went. I believe the pandemic has shown that the resources that we allocate to the Employment Rights Tribunal are not as adequate as they should be.”

He added: “Within the context of what we have seen in the pandemic, certainly the tribunal does not have the capacity in a timely fashion to deal with all of the matters that are brought before it. I would like to see the Employment Rights Tribunal strengthen its capacity,” he said, adding the ERT should have its own “home”.

“We need to move to a stage where that tribunal is a full-time tribunal not necessarily functioning like a court but we must respect that in all respects it is a court,” he said.

Pointing out he was available to assist the Ministry of Labour and Government on how to rectify these anomalies, Nicholls suggested Government penalise the recalcitrant employers. (MB)

The Jeff Cumberbatch Column – A Missed Opportunity for Reform

It is at least ironic that in debate last week on an amendment to the Employment Rights Act 2012 [ERA], the Honourable Minister of Labour, Mr Colin Jordan, should have excoriated some employers for treating their workers as self-employed in order to avoid responsibility for paying national security [NIS] contributions on their behalf and others for failing to recognize the trade union as the bargaining agent for their employees.

I write “ironic” because unlike many of our regional neighbours, Barbados has elected up to now not to place these matters effectively in the realm of legislation, where they would acquire some degree of notoriety and thus serve as cautionary tales or teaching lessons to local employers generally. Yet, there were our legislators in the process of debating an employment rights amendment bill, the most appropriate locus for these matters and enacting other provisions.

This is, of course, not to deny that the matter under immediate debate then was not of some importance itself. If the Employment Rights Tribunal, the body charged with the vindication of the rights of employees created under that Act and now having assumed subsequently added responsibilities in the areas of sexual harassment at work and holidays with pay, is to be fully competent to adjudicate the provisions of the Act; to award the possible substantial sums that may be ordered in some cases; and to enforce adherence to these awards, then the members must assume their roles with some degree of gravity.

The debated amendment will now require them to swear before the Governor General as follows-

I, …, do solemnly, sincerely and truly declare and affirm that I will faithfully and impartially fulfil the duties as a member of the Employment Rights Tribunal to the best of my ability in accordance with the provisions of the Employment Rights Act, 2012 (Act 2012-9). [Original emphasis]

The two issues raised by the Minister are, however, equally important to the rights of local employees themselves and arguably might have formed part of a comprehensive amendment of the ERA itself. After all, ever since its enactment, employer, employee and scholarly interests alike have identified matters concerning its provisions, apart from those mentioned in Parliament, which could aptly be the subject of amendment or reform.

Some of these are better suited to discussion in a technical study of the Act, but they bear mention, if not full analysis, here. For instance, the previous Minister had appeared to suffer some measure of understandable confusion as to the distinction between the ERA’s requirement in section 13 of the provision by employers to employees of a written statement of particulars and the desideratum of furnishing each employee with a written contract containing the terms and conditions of his or her employment. While case law has confirmed the difference between the two, the Caribbean Court of Justice, in a recent appeal from Dominica, favourably compared the latter requirement that is clearly more beneficial to the employee. It contrasted the legislation in Dominica that requires the provision of a contract of employment-

The Labour Contracts Act would have been hailed at the time of its passing, in 1983, as a progressive piece of legislation and, as will shortly be seen, it took a radical step in protecting employees’ rights. Its short title identifies it as an Act to make provisions whereby every employer is required to provide each employee within its application (operation?)with a written contract specifying certain particulars of his employment. Its purpose also included providing the contents of a basic labour contract. The basic approach of the Act is to provide that within 14 days of employing an employee, an employer must provide to the employee a written contract containing the basic terms on which s/he was employed; that if the employer failed to do this he committed an offence; and that to correct that failure the Act imposed upon the parties a basic labour contract, in the terms set out in the schedule to the Labour Contracts Act.”

with that of the English provision that we seemed to have copied-

In England, the employer was required to provide within two months of the commencement of employment, a written statement of specified terms but not a contract. As the updated legislation provides, if the employer failed to give this statement or it omitted the specified terms, the remedy the law provided was for the employee to complain to an employment tribunal to determine what particulars ought to be included in such a statement…”

According to Barrow JCCJ-

This very brief comparison is enough to bring home the realization that the Labour Contracts Act dared to do what the English legislation refrained from doing, which was to interfere with the hallowed English law concept of freedom of contract …”

Moreover, the local ERA has caused a theoretical confusion by its attempt to create a new form of wrongful dismissal upon the already existing common law concept; and the role of the Labour Office might also be reconsidered as a form of enhanced conciliation whereby parties may be advised if their claims have any chance of success at the tribunal hearing. This would not prohibit them from at all pursuing the matter, but it would be at their own risk of being liable for the costs of any unsuccessful hearing before the ERT.

So far as the two points specifically referred to are concerned, the first as to the nature of the employment has been legislated on to some extent; although the ultimate determination of whether the employee works under a contract of service [in which case NIS contributions would be payable on his or her behalf] or a contract for services [in which case they would be payable by the employee himself or herself ] has been expressly left to the courts. On this basis, in order for the treatment of the employee as employed under a contract for services to be legally impugned, the matter would have to be litigated under our law. The First Schedule to the ERA provides, after a catalogue of those indicia that might indicate employment under a contract of service-

Note: This list is not exhaustive, and the factors outlined are all elements in a balancing exercise to determine the nature of the contract. No one factor, therefore, is by itself conclusive, and the weight to be attached to any one of the factors is a matter for adjudication. [Emphasis mine]

With respect, simply asking employers “to cease and desist from that bad anti-worker practice” is not the way to arrest it; nothing short of a class action suit or condign legislation may suffice.

With regard to the second, Barbados has, for some unstated reason, elected not to enact legislation providing for the compulsory recognition of workers’ organizations as have many of the other jurisdictions of the region, preferring instead to rely on what is called custom and practice as if we existed in some pre-literate society rather than one that boasts of a sophisticated human resource that “punches above its weight”. In this regard, the reported words of the Minister are intriguing-“Once you operate in Barbados then you conform to the laws that are made (sic) here.”

In fact, on this particular issue, we have made none.

LIFO in 2018?

The following statement was issued by Toni Moore, General Secretary of the Barbados Workers Union (BWU). The blogmaster confesses the statement raised many questions regarding the retrenchment exercise government is committed to executing as part of BERT.

  1. Why in 2018 the LIFO is the method used to identify workers to sever from the public service? Toni Moore hinted in her statement that the PRDS (a performance system) does not command the confidence of the BWU. We have to ask why?
  2. How does government expect to change the culture of the civil service using LIFO as the basis to send home workers?
  3. Prime Minister Mia Mottley has repeatedly stated that the government has held several meetings with the social partnership to ensure all are on the same page. Did we hear Toni Moore suggest that there is some confusion with the execution of the retrenchment.
  4. What is the objective of government’s retrenchment exercise? Is it a cost cutting measure or is the government sincere in the suggestion that obsolete functions have been retired

The Caswell Franklyn Column – Government Refuses to Own its Failures

Caswell Franklyn, Head of Unity Workers Union

I’ve often said that statements made by ministers of government, at party meetings, should come with a warning that those statements are intended only to rally the party faithful, and should not be taken seriously.

The Daily Nation of March 13, 2018 reported that the Minister of Labour, Dr. Esther Byer-Suckoo, while addressing a joint branch meeting two days earlier, charged that some employers were deliberately ignoring notices to appear before the Employment Rights Tribunal (ERT) to deal with cases against them. She went on to say that some believed if they employed stalling tactics, it would stop the cases from moving forward, and claimed that this has led to a backlog of cases.

I hope that in real life (outside of branch meetings) the minister knows that her claim is fanciful. I make bold to say that the backlog of cases results more from government’s failure to provide resources that would enable the work of the ERT to proceed in a timely manner.

The ERT consists of nine members: the chairman and two deputy chairmen, who must be attorneys-at-law; three members nominated by the most representative organisation of employers; and three members nominated by the most representative organisation of employees.

A panel of three persons, one from each category, shall constitute a tribunal to hear a complaint. Simple arithmetic would suggest that three panels would be able to hear cases simultaneously. Unfortunately, Government has only provided enough staff to allow one panel to function at a time. Also, as presently constituted the lawyers, who chair each panel, are employed full time in private practice. As a result, they can only attend to the business of the ERT when they get breaks in their busy schedules. All of this more than anything else contributes to the ERT cases being chronically delayed. I know of cases that were filed in 2014 that have not been assigned to a panel to be heard, even though all the necessary paperwork has been completed.

The minister should not attempt to make scapegoats out of employers for government’s failures, in this regard. A backlog caused by the failure of employers to appear could only indicate that the tribunal would be inadequately discharging its functions. The ERT has remedies available to it to prevent the type of abuse that the was suggested by her. Firstly, the prescribed summons, for persons to appear before the ERT, comes with a warning that says:

“If you fail to obey this summons in any respect without reasonable excuse, you are liable to punishment in the same manner as for contempt of the High Court”.

Secondly, notwithstanding that warning, the ERT always had the power to hear and determine a matter if a party fails to appear.

Government’s failure, to put resources in place to have timely hearings of complaints, have resulted in unscrupulous employers saying to unfairly dismissed workers; take a fraction of the compensation due and sign a release or wait three years for a hearing. Sadly, some claimants have accepted the pittance rather than endure a penniless wait for justice.

Workers in this country do not need finger pointing and excuses from the Government; they need protection.

It would be remiss of me if I did not comment on government’s rejection of proposals to increase public sector wages. This administration is behaving as though it has already lost the upcoming elections and does not care what happens.

As I understand it, there were three proposals on the table: one union was asking for an increase of 23%; another was asking for 15%; and the Government proposed a one-off coping subsidy. Even though I can understand but do not agree that Government could totally reject the unions’ proposals; I find it hard to fathom how it can reject its own proposal.

The only thing that makes sense to me is if the administration is trying to lose the elections. Some time ago the Prime Minister promised that heads would roll if he discovered that there was an internal plot to remove him from office. Could it be that he has finally found out?

The Caswell Franklyn Column – Termination of Employment Claim Procedures Made Simple

Caswell Franklyn, Head of Unity Workers Union

Caswell Franklyn, Head of Unity Workers Union

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.

The Jeff Cumberbatch Column – Strange Interpretations

Jeff Cumberbatch - New Chairman of the FTC

Jeff Cumberbatch – New Chairman of the FTC

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate

Musings:Strange interpretations
By Jeff Cumberbatch

We are living in interesting times.

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Stillborn Employee Rights Tribunal: When the Rights of Workers and the Interest of Trade Unions Differ

In explaining reinstatement, the employee returns to the workplace after careful consideration by the Tribunal and it would be as if the dismissal had not taken place” …In respect of reengagement,” she continued, “the employee returns and if there is suitable employment for the employee, they return to employment that is comparable [to their previous job

The Employment Rights Act – A New Era For Barbados 17 May 2013

Almost seven months ago Prime Minister Fruendel Stuart intervened in the dispute between the Barbados Workers Union (BWU), National Union of Public Workers (NUPW) and the National Conservation Commission (NCC) how 200 workers were selected to be retrenched. Stuart admitted publicly that mistakes were made in the process and the matter had to be resolved by the Employee Rights Tribunal (ERT). It was reported in the media that both the NUPW and the BWU welcomed the Prime Minister’s intervention and dutifully briefed their respective membership to expect a speedy resolution.

Subsequent events have shown that the ERT has not been able to function – a new ERT Board has to be appointed after nearly 18 months  – and consequently the NCC matter has been in abeyance along with 70+ other cases. Of interest at the time, and highlighted by head of Unity Workers Union Caswell Franklyn, was the suggestion the NCC matter would have been catapulted to the top of the case load for hearing by the ERT. Because the first attempt to operationalize the ERT failed, the attempt to influence the scheduling of cases by the political directorate is relegated to moot status.

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Employment Rights Tribunal Betrayal by Minister Esther Byer-Suckoo

Submitted by Anthony Davis

GOVERNMENT has been hit by a bombshell, the shock waves from which will impact the scores of retrenched workers hoping for compensation soon. In a dramatic show of disgust, eight of the nine members of the Employment Rights Tribunal (ERT), including its chairperson Traece Codrington, have resigned with ‘immediate effectNation Newspaper 17 December 2014

Well, well, well!

Pray tell me, Mr, union man, where were the unions when the minister responsible for the NCC workers was making his decisions about whom to fire? You were nowhere to be found because you were in bed with Government. How come you waited until the people were sent home to play that you are interested in their affairs? If there is anyone to be sued it is the Minister of Labour for failing to provide the necessary accommodation, secretariat, and equipment. We are no longer slaves where we must sit on the ground, whereas Massa sits in his fine chair.

Former PM, Owen Arthur, said:”Massa day done!”

If you had done your duty from the beginning it would not have come to this, unless you expect the members of the tribunal to bring their own equipment and find accommodation for themselves. If one starts wrong one ends wrong. You are now trying to save your own hides – nothing else. Every time a minister is wanted to face the press, he/she absconds. I wonder where she has gone?

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