Tribunal gets new lease while industrial court takes shape

The life of the Employment Rights Tribunal (ERT) has been extended as ministers are set to approve a new quasi-industrial disputes court to replace the tribunal, Barbados TODAY has learned.

The tribunal of part-time commissioners representing labour, employers, and the legal profession, typically operates on a three-year cycle. During its most recent term, the ERT delivered 19 rulings, concluding with a landmark decision on August 12, when deputy chair Kathy-Ann Hamblin SC dismissed an unfair dismissal claim brought by transgender woman Alexa Hoffman, a former clerical officer at Court Caribbean Law Practice.

As the government prepares to establish a full-time court, Minister of Labour Colin Jordan explained that it made more sense to extend the terms of the current part-time commissioners rather than appoint a new team, given the impending reforms.

“The term is being extended, and sometime within the next few months, I will have something more definite,” Jordan told Barbados TODAY. “We will continue to have . . .but I am not replacing part-time people with new part-time people who would only be there for a month or two. That doesn’t make any sense.”

He hinted that by the end of September, he expects to provide more specific details about the industrial relations court. 

“We are much closer. . .we have to do the internal stuff. We are about to go to Cabinet, actually. But I am not saying anything before going to Cabinet, because Cabinet is the one who makes the final decision,” the minister added.

Jordan further noted that a Cabinet paper on the restructured tribunal could be submitted within the next week. 

“I know what’s in my head. I know what we have down on paper. We should have that paper sorted . . .I would say, sometime next week we should have that paper finished, and it should be in Cabinet right after that,” he revealed.

This development raises the question of whether the proposed changes will include suggestions from stakeholders. Retired Justice Christopher Blackman, former chairman of the ERT, revealed that new draft rules were completed just before Christmas 2022, which could enhance the tribunal’s effectiveness.

“They are there. So, there is no reason why they shouldn’t be enforced,” Blackman said. “The rules that have been prepared, or the amendments to the [ERT] Act, are for the purposes of empowering the tribunal to give default judgments, where there has been non-compliance by a recalcitrant respondent.”

He further noted: “If somebody brings a case to them, pursues it, it can be struck out for want of prosecution . . .there is a lot of dead paper around the place with people who brought cases and then don’t follow them up.”

The ERT’s final ruling of the last term, involving Alexa Hoffman, highlighted the need for legislative reform. In her decision, deputy chair Hamblin stated that Hoffman had no legal standing to claim unfair dismissal based on gender discrimination, as Barbados does not recognise ‘transgender’ status under its laws.

“As a transgender person, claimant Hoffman has no standing to bring a complaint for unfair dismissal based on gender discrimination, since ‘transgender’ is not a status which is recognised under the laws of Barbados,” Hamblin ruled.

She urged Parliament to amend the law to reflect a changing Barbadian society and global views, while also fulfilling the country’s international obligations. Hamblin noted that transgender individuals, despite lacking legal recognition, are entitled to “freedom of choice in their private life, and to basic human dignity.”

Last year, the Barbados Workers’ Union (BWU) echoed the need for reforms to the ERT. Legal officer Kamisha Benjamin acknowledged the tribunal’s importance in protecting workers from unfair employment practices but called for an overhaul of its supporting framework.

With the proposed changes expected to go before ministers soon, it remains to be seen how the new industrial court will address those calls for reform. 

emmanueljoseph@barbadostoday.bb