A local constitutional lawyer is advising against adopting the last-in first-out principal across the board when carrying out retrenchments similar to what is being undertaken by the Government as part of its restructuring of the public service.
Queen’s Counsel Hal Gollop, a former Chairman of the first-ever Employment Rights Tribunal in Barbados this afternoon warned that to do so, would be counter-productive.
Gollop’s position comes in the face of accusations from the National Union of Public Workers’ (NUPW) leadership that the same principal – as discussed with the Government – was not being strictly followed in the laying off process.
General Secretary of the NUPW Roslyn Smith had recently questioned the selection process, claiming the Mia Mottley-led administration has been targeting women to send home, alleging gender bias.
But both the Prime Minister and her senior technical adviser Dr Kevin Greenidge, stoutly rejected the accusation, explaining that more men were in fact being laid off than women.
“There has not been any detailed, systematic procedure outlined, which would reveal that Government was following a particular regulated pattern to come up with the people whom they are retrenching,” he told Barbados TODAY, adding at the same time he was not aware of what process the administration was using to send home the targeted 1,500 employees from the public sector.
Whatever system was being applied, the former head of the Employment Rights Tribunal was not in favour of the last in first out in all instances.
“It would not, in my view, allow an employer to have optimum efficiency and productivity, if you are going to suggest any kind of principle, any kind of procedure that would make people who are inside a workplace comfortable simply because they’ve been there long and some persons who have been new appointees uncomfortable if the issue comes down to retrenchment.”
He recalled expressing this view when he handed down the landmark ruling of the tribunal on July 15, 2016, declaring that the State-owned National Conservation Commission (NCC) had unfairly dismissed more than 100 of its workers as part a cost-cutting programme by the then Democratic Labour Party (DLP) Government.
Emphasizing that he was still firmly against the last-in first-out policy being applied in every case, Gollop told Barbados TODAY there have been a lot of litigation in which this principle was discussed.
Gollop also explained that the provisions of the Employment Rights Act did not apply to Central Government with respect to retrenchments or dismissals.
He said there was a difference between a civil servant and a public servant and therefore different rules would apply when sending home the two categories of employees.
“The Employment Rights Act does not apply to the civil service. There is a confusion between civil service and public service. Every civil servant is a public servant, but there are public servants who are not civil servants . . .
like the members who are employed in the statutory corporations. These come within the ambit of the Employment Rights Act, but not civil servants,” the Queen’s Counsel said.
The constitutional lawyer said if those in the civil service [Central Government] wanted to challenge the state over their dismissals, they would have to do so through a constitutional motion in the High Court on the grounds they have been deprived of their property, while public servants [in state-owned enterprises] can go directly to the tribunal for redress.
Under Section 31 (4), (5) and (6) of the Employment Rights Act, SOEs which intend to cut their workforce by ten per cent or any other significant number first have to go through a series of steps before dismissal.
These include consultations with the employees and their trade union on the proposed method of selecting the affected worker, the proposed method of carrying out the dismissals, any method the employer might be able to take to find alternative employment and supplying the union and Chief Labour Officer with a written statement of the reasons for, and other particulars of the dismissal.
On Tuesday, Prime Minister Mia Mottley admitted that the process of layoffs had not gone as smoothly as she would have liked, but insisted that the problem was not widespread.