BEC: ERA still lacking

Employers in Barbados are urging Government to review the Employment Rights Act (ERA) to provide for a process that balances natural justice with swift resolution for minor infractions.

Executive Director of the Barbados Employers’ Confederation (BEC) Sheena Mayers-Granville contends that despite there being “few” disputes regarding the outcome of unfair dismissal cases adjudicated by the Employment Rights Tribunal, several areas of concern regarding the act remain.

“The Fourth Schedule of the ERA lacks provisions for minor infractions that may result in less severe forms of discipline, such as verbal warnings. This has heightened anxiety for workers and increased administrative burdens for employers. A process that balances natural justice with swift resolution for minor infractions is necessary,”  Mayers-Granville told Barbados TODAY on Wednesday.

She also called for changes to Section 31, which requires consultation periods of six weeks before redundancy takes effect when 10 per cent or a significant number of workers is impacted.

“This legislation may place undue stress and strain on small organisations without the capacity for consultations. Clarification is needed for businesses with 10 employees or less who may need to make a single position or person redundant. Notably, in the United Kingdom, there is no statutory requirement for collective consultation where the redundancies involve less than 20 employees. We should consider a similar threshold in local legislation,” she declared.

The BEC head also said that resources need to be allocated to the Labour Department to handle cases referred to the Employment Rights Tribunal in an efficient and timely manner.

She pointed out that although nine people have been appointed to the Tribunal, it is necessary to strengthen the supporting infrastructure for prompt case handling.

Meanwhile, Mayers-Granville said the delivery of judgements by the Tribunal has greatly assisted employers in interpreting the Act.

On Tuesday retired Court of Appeal Justice Christopher Blackman, who resigned as chairman of the ERT at the end of March also called for amendments to the legislation, enactment of rules for the tribunal and the provision of a dedicated space for the work of the body.

“Regrettably, the several issues which I have canvassed for, or worked upon over that time, including the provision of a dedicated space for the work of the tribunal, the enactment of Rules for the tribunal and amendments to the Employment Rights Act, continue to be ‘works in progress’,” Justice Blackman told Labour Minister Colin Jordan in his one-page letter of resignation, a copy of which was obtained by Barbados TODAY.

“It is my sincere wish that the speedy resolution of these matters occurs as soon as possible,” he added.

He said the most common cases which he adjudicated during his tenure as chair, related to employers who ar e not following the process when dismissing workers.

“Plus, there is increasingly an abuse of the right to consult or giving meaningful recognition to the issue of consultation. Consultation must be meaningful,” the retired High Court Judge contended.

“The issues are essentially resolved at termination. It is a question as to whether you are complying with the Act or not complying with the Act; and when somebody examines the decisions of the tribunal, you would find the tribunal has not been one-sided. They have held for the employer and have held for the employee.

So nobody can say we were only for one side,” the retired judge asserted. Justice Blackman also referred to an “unwritten” story concerning the value of the decisions of the ERT.

“The value of the decisions enabled the employers to make settlements that therefore they did not go to judgment. There is one where a settlement was reached for over $100 000 because of the principles laid out in the decisions we have had. There is another one involving an offshore system where the settlement was in excess of $300 000 because the employer, when the principles were brought to their attention, just took up the calculator and agreed on the numbers.

“A case was settled in November 2019 where the parties went away and decided that there was no point fighting. So there are probably as many settlements as there are judgments because once you have established there are certain principles and they are published, people say ‘there is no fighting this one because…’” the ex-tribunal chair reported. (EJ)