A decision by the Hill Milling and Lionel C. Hill Supermarket group of companies to mandate that its employees be vaccinated by September 30 or be terminated, has now turned into a standoff between the management and local labour authorities.
Chief Executive Officer (CEO) of the group, Richard Ashby, on Friday defied the “strong” advice from Chief Labour Officer (CLO) Claudette Hope-Greenidge to immediately withdraw the memorandum he had sent to the 98 staff members reminding them of the September 30 deadline and instructing that no one would be allowed to enter Hill Milling Co. Ltd or Lionel C. Hill Supermarket after that date without a vaccination certificate.
Ashby had also told Barbados TODAY on Thursday, that only two of his staff had not complied with his instructions and that if they do not present a vaccination certificate by payday this weekend, they could come for any monies due to them, along with their termination papers.
But in a letter dated September 30, and signed by Hope-Greenidge, the CEO was told “The Labour Department of the Ministry of Labour and Social Partnership Relations advises that your correspondence be withdrawn immediately.
“It is expected that you will comply with the statute and also honour the stance of the Social Partnership,” the Chief Labour Officer wrote.
The CLO also warned Ashby that he could face legal action from employees under the Employment Rights Act as a result of the contents of his memo which suggests discrimination in employment.
However, Ashby declared “The labour officer made a request. I don’t have to answer the request. She can say what she wants to say.
There is no way that you employ somebody and you can’t fire them? You joke man,” the business leader told Barbados TODAY on Friday.
“Pass all the laws you want, do whatever you want to do. Once you take away my rights…you joking man. You can’t take away my rights,” the chief executive officer contended.
Pressed to state whether he would withdraw the memo, he replied: “Withdrawing what? I sent out a memo; it out there. Amen.”
The Labour Department letter also “strongly advised” the supermarket and manufacturing executive to take careful note of a ministry directive regarding employees’ rights, employment legislation and the Social Partnership position on mandatory vaccines.
“Firstly, the Ministry of Labour and Social Partnership Relations directs that an employee determines whether he or she wants to be vaccinated and is not to be treated unfairly nor discriminated against by the employer if he or she chooses not to take a COVID-19 vaccine,” the letter stated.
“Under the provisions of the Employment (Prevention of Discrimination) Act 2020, an employee, as he or she chooses, may bring a claim for discrimination in employment arising from the content of your correspondence,” the Chief Labour Officer warned.
“You are further strongly advised that in any instance of the termination of employment, the provisions of the Employment Rights Act, 2012 (ERA), must be strictly followed. In this particular instance, your careful attention is drawn to the Fourth Schedule of the ERA regarding Dismissal and Disciplinary Procedures,” Hope- Greenidge told the Hill Milling Co Ltd and Lionel C. Hill Supermarket boss.
And in a statement issued on Friday in response to employers who mandate workers to take the vaccine as a condition of employment, Minister of Labour Colin Jordan warned that employees are protected by the Employment (Prevention of Discrimination) Act which, among other things, prohibits discrimination on the grounds of a person’s medical condition.
“Additionally, employers are prohibited from requiring a person to be tested for a medical condition either as a precondition for entering into a contract of employment or as a condition for continuing employment. This prohibition is subject to if the test or knowledge of a medical condition is required by reason of a genuine occupational qualification,” Jordan pointed out.
At the same time, the minister explained that a genuine occupational qualification is when a requirement is inherent or absolutely necessary for a particular position or function.
‘There could also be a legal requirement – as in the case of persons working with food preparation and serving who are required to have a medical certificate (known as a food handling certificate). Another example would be if a person is being hired for a position that requires travel to a country that mandates having a Yellow Fever vaccine for entry into the country. The worker will need to have the vaccine if he or she is going to be employed in that role,” observed the minister.
He said it would be for an employer to prove that the vaccination or test is absolutely necessary in order for the worker to function in a particular capacity, or in order to allow the employer to maintain a safe and healthy environment.
“It cannot just be an employer’s preference,” Jordan cautioned.
The labour minister also noted that discrimination includes the imposition of penalties and the reduction of benefits and any other treatment that disadvantages a worker.
“Barring a worker from working, and therefore earning is placing that worker at a disadvantage,” Jordan added.
He said workers in Barbados are also protected by the Constitution on the basis of their religious beliefs.
“While we are strongly urging and encouraging persons to be vaccinated so Barbados can be successful in the fight against this deadly coronavirus, there is currently no legislation that requires a worker to be vaccinated,” minister Jordan declared.
“If it is determined that a test or other requirement (like vaccination) is absolutely necessary, the employer may be required to make reasonable accommodation for an existing worker who does not meet the requirement.
This will obviously depend on many factors including size of business, nature of operations, and available options for reassignment or relocation,” the minister advised.
He said the social dialogue has been a hallmark of both the country’s governance and industrial relations.
“We call on employers to have a dialogue with their workers and workers’ representatives when changes in the employment relationship are being contemplated. Workers are human beings. Talk with your people.
“We also remind employers that at the level of the Social Partnership, Government has asked that employers and workers’ organisations work with us in the fight against the pandemic and not take extreme measures that appear to be bullying and intimidation,” Jordan continued.
“This is Barbados, not the Wild West. We will only be successful in fighting the pandemic and building a strong and sustainable country if we do it together and in an orderly way that respects all people,” he urged.
The minister advised that people who are unsure of their rights or responsibilities should contact the Labour Department and speak with a Labour Officer.
(emmanueljoseph@barbadostoday.bb)
