#BTSpeakingOut – The employment law ‘specialist’ is wrong

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by Caswell Franklyn

The Daily Nation of March 22, 2022 reported that Senator Gregory Nicholls, speaking from the Senate, claimed that 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 lawyer who claims to specialise in employment law, and from the floor of the Honourable 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).