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Might in rights

by Nekaelia Hutchinson

Employees must be punctual. Must work well with others. Should be able to complete duties in a timely manner — these are familiar phrases, often seen listed as conditions for employment. But shouldn’t there also be requirements which stipulate what is acceptable work for employees? The Ministry of Labour has answered ‘yes’ to that question in the form of this island’s first Employment Rights Act, which is set to be proclaimed on Monday, April 15.

While other pieces of legislation, such as the Shops Act, Holiday with Pay Act and the Employment (Miscellaneous Provisions) Act, address employment in Barbados, the Employment Rights Act 2012 signals a new era for employment rights.

Senior Labour Officer with the Labour Department, Linda Bowen, explained: “There was a need to regularise the employment relationship. We have had queries from concerned employees in the past, especially domestics or those persons working in private households, where they felt that they were being mistreated [and] they were not being covered by the appropriate legislation…”

The act, which will fill this void, will speak definitively to specific workers’ rights, including having a written statement of particulars of payment; the right to a written statement of employment particulars; the right to be consulted before being placed on short time or laid off; the right to priority re-hiring in certain cases, if dismissed for redundancy; the right, where employment has ended, to a certificate giving the particulars of the employment; the right not to be unfairly dismissed and the appointment of a Tribunal.

Expanding on the document’s contents, Bowen stated: “The employment particulars should contain the place of work; the length of notice to be given or received with respect to any termination of contract of employment; the date at which a fixed term contract will end; and any disciplinary procedures to be followed during the working relationship.”

“The statement of employment particulars should contain the name of the employee, the name and address of the employer, the date of the commencement of the employment and the period of continuous employment [and] pay dates…,” she said, adding that it should also clearly state the time of month and frequency of payment, working hours, length of notice to be given prior to termination; whether there will be inclusion of Collective Agreements and any periods of probation and NIS or PAYE deductions.

The issue of dismissal, a contentious topic for both employees and employers, is also addressed in the new legislation. Clarifying the difference between a just and an unfair dismissal, Bowen stated that the latter was dismissal for any reason “not related to an employee’s conduct, [and] the capacity to perform his or her duties”.

“If there has been any accusation of wrongdoing, not allowing the individual the chance to defend him or herself with appropriate representation.

“If for instance an employee acting as a union representative … refused to carry out a duty that he determined would have been unlawful or … could bring about injury or impact his health … and he or she is dismissed, that would be deemed an unfair dismissal,” she said.

Speaking about the process of termination, the senior labour officer noted: “If the employer determines that he [or she] has to part company with an employee, he has to give notice as provided in the Employment Rights Act and the employee has to give notice as well .”

However, termination should not be seen as a first resort, Bowen said, as the act sets out levels of progressive disciplinary procedures, “starting with oral or written warnings and these have to be issued before stronger forms of disciplinary action are undertaken”, thereby allowing the employee time to improve on any shortcomings.

If this desired improvement came about, Bowen added, previous wrongdoing could not be held against the employee indefinitely or used as a reason to terminate employment, as the act “allows for a written warning to be deleted from the employee’s records after one year”.

“I have found that employers tend to use cumulative warnings to inform their terminations,” she added. “Things that might have happened years before they would [use as justification].”

Employers’ rights are also addressed in the act, with the official noting that if managers recognised that warnings were not bringing about the desired change, then the employer would be within his right to terminate.

Should the parting of ways be less than cordial, an employee may seek recourse with the Employment Rights Tribunal. Comprising nine members representing government, employees and employers, Bowen explained that its functions “would be to award compensation as it sees fit, to order reinstatement or re-engagement”.

“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 re-engagement, the employee returns and if there is suitable employment for the employee, they return to employment that is comparable [to their previous job],” she advised.

While employers had expressed reservations about the tribunal’s authority to determine employee reinstatement, the labour official revealed that the entity would offer careful determinations and, if a relationship was so fractured that it was in no one’s interest for the employee to return, the tribunal would determine appropriate compensation.

The introduction of the Employment Rights Act will also affect the work of the chief labour officer. Although his role in establishing the merit of claims had previously been established in Chapter 23 of the Laws of Barbados, the act not only acknowledges this duty but increases his capacity.

“The CLO now has the authority to enter into private households and perform inspections by day or night; interview the employers therein and make determinations based on the representations (complaints) that would have been made to the department,” she noted.

After a complaint has been made, Bowen said, the CLO has 42 days to resolve the conflict or refer it to the tribunal; while labour officers will also be required to conciliate more and serve as mediator between employer and employee where necessary.

Penalties will also change with the introduction of the act, as Bowen explained that “whereas in the Labour Department Act, a fee for contravention of any of the provisions as set out under the duties of the chief labour officer would have been $240, or imprisonment for six months or both, the Employment Rights Act now speaks to a fine on conviction of $20,000 or imprisonment for six months or both”.

Following the act’s proclamation, employers will be given six months to comply and Bowen encouraged employers to seek assistance with formulating the statement of particulars or other documentation required under the act. She offered her assurance that the department stands “ready and willing to offer that kind of assistance and make the provisions of the act more accessible.”

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