A labour law expert is warning employees that if they do not promptly challenge changes to terms and conditions of their employment, they could be stuck with them.
However, according to Regional Head of Employment and Labour with Dentons, Michael Koeiman, workers do have protection from arbitrary changes to their contracts.
Speaking on Wednesday during a panel discussion that examined the Employment Rights Tribunal (ERT) decision to throw out the unfair dismissal case of former general secretary of the National Union of Public Workers (NUPW) Roslyn Smith, Koeiman said there is now a “clear and reasoned” decision that establishes that the employee has a right to protest such changes but they must do so without undue delay.
“Technically, as a matter of contract, you can’t unilaterally impose a dramatic change from what the parties agreed. But the employee must protest, first of all, otherwise, it would be presumed by continuing to be employed that they have accepted the change…and after a reasonable time, which is deliberately vague…because it will vary from situation to situation…they have a reasonable time to determine whether or not they could live with the change,” the employment specialist told those gathered at Tapas Restaurant in Hastings, Christ Church for the event which was organised by the Human Resource Management Association of Barbados (HRMAB).
In Smith’s case, then ERT chairman retired High Court Justice Christopher Blackman ruled that the senior union official was not unfairly dismissed by the NUPW. The union had argued that she was retired when her contract of employment ended on the attainment of retirement age of 65, as stated in her letter of appointment dated November 4, 2015, which she signed.
The tribunal said it had considered the observations of English judge Lord Denning who ruled in a similar case that an unhappy employee should take quick action for a perceived wrong.
“The failure of the claimant to take action for close to three years to challenge a letter which she said she had signed under duress amounted to acquiescence and acceptance of the perceived offending provision of the letter,” Justice Blackman declared.
Koeiman suggested an amendment to the Employment Rights Act to make it clear when exactly an employee has lodged a complaint with the Labour Department in a timely manner.
“I usually want to know when has enough time passed that I can know that the employee has made or has failed to make a complaint. The fact is, there is no register available to the public for me to determine whether a complaint has been made. So that is one of many suggestions that I will make for an amendment to the legislation, so that we could know reasonably, without having to rely on the word of the Labour Department, to determine whether or not a complaint was made within the time, given the serious ramifications of failing to do so,” Koeiman asserted.
The other panelist, employment law and industrial relations attorney Michelle Russell underscored the importance of ERT rules.
“This is where the ERT rules become pertinent – rules that we have been advocating for, what is it now – two years, three years? – they send down the draft to the Bar Association, the Tribunal had input, I probably did over input, trying to say, ‘let us set out the procedures so it’s clearer and we are not constantly guessing’. And depending on which labour officer you go to on any given day, you hear something different which confuses the public at large and it confuses the employer,” Russell said.
Justice Blackman, who also addressed the gathering, also expressed regret that the rules had not been introduced during his tenure despite years of advocating. (EJ)
Editor’s note: Changes were made to this story to correct inaccurate statements attributed to Michelle Russell who did not indicate that she was advocating for three years for the draft to be sent to the Bar Association.
Justice Blackman, who also addressed the gathering, also expressed regret that the rules had not been introduced during his tenure despite years of advocating.
(EJ)
