About two years ago, the National Conservation Commission (NCC), as part of Government’s retrenchment exercise, terminated the employment of a number of workers.
There was much industrial relations tension. The whole brouhaha culminated with the filing of unfair dismissal claims with an Employment Rights Tribunal which at the time did not exist in actuality.
Fast forward to 2016 and the Tribunal, as subsequently constituted, has now delivered its decision in Cutie Lynch v NCC, ERT/2014/064 and Anderson Chase v NCC, ERT/2014/063.
Essentially, both of these actions are founded on the same facts and circumstances, save and except that Ms. Lynch was represented by the National Union of Public Workers and Mr. Chase was represented by the Barbados Workers Union.
The matters were heard as representative actions, meaning, that the decision in Ms. Lynch’s case binds the other 94 claimants represented by the NUPW and the decision in Mr. Chase’s case binds the other 25 claimants represented by the BWU.
Today, we look at the overall principles discussed in the decision of the Tribunal.
The Cabinet of Barbados issued instructions to the NCC in respect of the conduct of the retrenchment exercise, more particularly that a number of employees should be made redundant with the Last-In-First-Out (LIFO) principle being the general policy.
The Tribunal correctly found that the NCC had no discretion to disobey the instructions of the Cabinet and a significant number of workers had to be retrenched by means of redundancy. The Tribunal, however, was still required to examine the fairness or otherwise surrounding the retrenchment exercise.
In brief, the Claimants contended that their dismissals had been unfair because the NCC failed to carry out consultations with the trade unions as required by Section 31 of the Employment Rights Act (ERA). Where no consultation takes place, the burden is on the employer, in this case the NCC, to show that there are “special circumstances” or that it was not “reasonably practicable” for the same to take place.
A whole discourse on the methods of recognizing trade unions took place and it boiled down to the fact that either an express collective bargaining agreement or a course of dealings between the employer and the union could lead to recognition. The NCC had argued that it did not have to consult with the NUPW because it was not the recognized bargaining agent for the workers.
When all was said and done, the Tribunal quite rightly found that the failure to consult with the union and/or the individual employees was in breach of the ERA and the dismissals were therefore unfair.
LIFO is complete nonsense. It helps the unions to retain their membership and prevents an employer from watering it down by hiring new workers and hampers them in getting rid of “old problems.” Thankfully, the Tribunal has recognized the strangeness of this concept and clarified the law in relation to the application of this principle. Essentially, LIFO must be applied after consideration of other criteria such as “attendance at work, discipline, knowledge, skills, ability, aptitude and performance.” Translation: where there are two employees with roughly the same number of years’ employment, during a redundancy exercise, the edge should be given to the top performing employee.
Commencement date of employment cannot be the sole criteria. Shamefully, the NCC was in possession of employee assessment information and chose not to use it. LIFO by itself is unfair.
The unions are still singing the reengagement/reinstatement song and saying the Tribunal should have given these people back their jobs. That position is unreasonable and untenable. The Government has no money to pay them and the other 3,000 plus persons sent home. As far as we are aware, that position has not been altered and, frankly, appears to be getting worse.
Having been told by the Cabinet to reduce its workforce, the NCC is not in a position to rehire them. The Tribunal concluded that “it was clearly demonstrated from the evidence taken in this matter that the practicability of reinstatement or reengagement of the complaints (sic) at this time is too remote given the reason for the implementation of the redundancy measures in the first place.” The Government would have to alter its instructions.
Now we come to the murky part of this decision. I cannot find the rationale or what lawyers refer to as the ratio decidendi for ordering 52 weeks’ compensation. The Fifth Schedule to the ERA specifies the number of weeks’ compensation that can be awarded to an unfairly dismissed employee. The Tribunal can also order additional compensation of up to 52 weeks. The attorney for the Claimants says the award should be “substantial damages”.
Ms. Lynch, without further evidence, says she was trying without success to find a job and just like that the Tribunal orders 52 weeks’ compensation “in the circumstances”. What circumstances? Therein lies the fly in the ointment.
(Alicia Archer is a practising attorney-at-law)