The state-run National Conservation Commission (NCC) says it can neither afford to take back any of the 186 workers who were dismissed two years ago nor pay them compensation.
As the Employment Rights Commission wrapped up hearings this evening into the matter, the NCC’s attorney Mitch Codrington made this submission in response to a demand made by counsel for the Barbados Workers Union (BWU) Edmund King on behalf of the workers.
King argued that the status of the 186 employees should be reset to the original position as at April 30, 2014, by “reinstating every single one”.
He went on to suggest that if such was not possible or practicable, then the workers ought to be substantially compensated.
He singled out Anderson Chase, a former NCC beach ranger and warden, who is named as the first claimant, saying that even though Chase was now employed with G4S Security, he was comparatively worse off in salary by about $600.
He explained that the former NCC worker had lost all of his pension rights and benefits after being dismissed two years short of qualifying for any pension entitlements.
“He should be compensated for that [loss of pension],” the attorney argued.
It was at this point that Tribunal Chairman Gollop interjected. He reminded King that his request for “substantial compensation” could only be honoured within the confines of the Employment Rights Act, which stipulates the maximum pay out a claimant could receive.
King, who seemed not to be totally convinced, went on to suggest that before the tribunal reaches its final decision in the unfair dismissal case, it should test the reasonableness of the NCC’s actions, in the likelihood that the tribunal found that the dismissals amounted to redundancy.
Countering the NCC’s submission that the employees were made redundant as a survival measure, the attorney for the displaced workers pointed out that neither the framework letter for job cuts within the public sector nor Chase’s letter of termination said anything about redundancy, but rather retrenchment.
He also argued that the Employment Rights Act, for the purposes of this case, does not mention redundancy either, pointing out that the legislation clearly directs that the category under which persons were terminated must be named and could not be left to interpretation.
King also urged the panel to consider the manner in which the NCC terminated the workers, contending that it did not follow certain procedures which itself had established.
However, Codrington disagreed with King’s argument, arguing that what happened at the statutory corporation amounted to “economic redundancy”.
He said it was a matter of the State trimming its workforce in light of a bad economic position.
Codrington also contended that the directive from the Ministry of the Civil Service to cut certain numbers of staff meant that jobs had to be abandoned, which amounted to redundancy.
Turning to the contentious matter of whether Chase was appointed to a permanent position or pensionable post, the attorney for the NCC argued that even if he was appointed, he could still have been made redundant or be terminated without malice.
Codrington told the hearing that the NCC did the best it could in the circumstances.
However, he admitted that the NCC management was not in total control of the decisions, because it had to carry out the instructions of its pay master, the Ministry of the Civil Service.
Towards the end of his submission, Gollop asked Codrington to recommend a remedy in the likelihood that reinstatement was not on the cards. The NCC attorney was able to come up with a straight answer.
However, after some level of confrontation with the chair and the intervention of the other two commissioners, Codrington finally told the tribunal his client did not have the capacity to reinstate the workers, neither could it afford to pay out any “extra” compensation as demanded by the other side.
He said the NCC would have preferred if it did not have to pay out any money, but said it did not want to hurt the workers.
Judgment was reserved in the matter.
However, Gollop promised to deliver it in the shortest possible time.