High Court, not ERT, better choice in some employment matters

Employees of statutory boards who are appointed in established posts under the Statutory Boards Pensions Orders should avoid starting actions before the Employment Rights Tribunal (ERT).

This advice is coming from noted attorney-at-law, Senator Gregory Nicholls, who explained that these matters are best brought before the country’s High Court for redress. That court, he said, extends the period of reasonable notice in wrongful dismissal cases and takes into account the Bardal factors which include the character of employment, length of service, age, availability of similar employment, having regard to the experience, training and qualifications of the employee.

“The reason for this my suggested preference for the court instead of the ERT is that the measure of damages is not prescribed and the court has to take all of the special factors of the officer’s appointment into account. 

“The court will be required to consider the circumstances of employment of an officer of a scheduled statutory board and assess the compensation based for loss of office rather than what would have been reasonable notice to terminate the contract,” Senator Nicholls said in his featured address to the National Union of Public Workers (NUPW) Founder’s Day Luncheon on Friday, at the NUPW’s Dalkeith Road, St Michael, headquarters.

The attorney-at-law further explained that appointment to a pensionable office implies in the contract of employment that the officer in the post will work until the mandatory retirement age stipulated by the Statutory Board Pensions Act. 

He added that the measure of compensation for loss of office must therefore take retrospective and prospective consideration of the nature and character of the employment. 

Speaking on the topic: Labour Pains and Labour Gains, Senator Nicholls said the public sector employment dichotomy of “pains and gains” remains apt and relevant in today’s world. 

He stressed that the law brings certainty when required to answer challenges, and adapts, transforms and enlivens that process of labour pains and gains. 

“It is likely to remain the most important tool in labour’s corner, Nicholls said. “We are unlikely to escape the continuation of rapid changes being brought about by the emergence of the post-capital society and our transformation into a knowledge society where knowledge, not information, is the central resource. 

“The public sector must respond and adapt. The architecture of the public sector labour-employment relationship must transform as well. The knowledge society is global, it affects money, economics, careers, technology, social issues, the environment and information,” he said.

Senator Nicholls also indicated that people will practice knowledge in varying forms, as individuals, or as part of institutions like the public sector which must allow people to work and shift and adapt within these two distinct areas at the same time. 

He suggested that workers have to upsize their skills in management and in honing their knowledge skills in their individual spheres at the same time and early in their careers. 

“Not at the end, for the change that is upon us, is the change in knowledge, in its meaning, content, responsibility and form,” he suggested. (AH)