BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate
By Jeff Cumberbatch
We are living in interesting times.
Plagued, or so it would seem, by an interminable economic downturn, despite frequently reported official sightings of lights at the end of the tunnel, it has also now become apparently de rigueur to blame unforeseen closures of public schools, offices and other institutions on the vague term ‘environmental challenges’. ‘No school today at because of environmental challenges; the offices of *** will close early this week because of environmental challenges’. These announcements always conjure up for me visions of individuals in those sterile head-to-toe white suits worn when there is some spillage of hazardous material. I suppose, though, that this is simply my fertile imagination at work since these so-called environmental issues do not seem to persist.
Worthy of mention in this context too, is the apparent eventuation at the end of last week of the gravest likely consequence of hitherto contemptible though bloodless praedial larceny, unfortunately on this occasion for an innocent party to the proceedings. If this is indeed so, then this form of criminal offence has taken on a new and dangerous form; being no longer restricted to night hours and now carried out by force of arms.
Most interesting for me, however, is the current local fashion of some laypersons to seek to expound authoritatively on what the law is without the benefit of full discussion on why any opposing view might be invalid. As most of those trained in the law should know, such a statement is at best an informed opinion only, and that is provided it satisfies the criterion of being supported by persuasive or binding precedent or similar jurisprudence.
Of course, I do not seek here to deny the usefulness of popular discussion on legal matters, as important as this may be to the ordinary citizen, and I am often pleasantly surprised and beguiled by the lucid and well researched legal views of one bi-monthly columnist in another section of the press who, while not formally credentialed, displays a penchant for statutory interpretation especially on matters relating to the law of public employment that is of an undeniably high quality.
My immediate concern on this mater is driven in part by some recent statements reportedly emanating from the Ministry of Labour concerning the mandate for employers to issue written statements of particulars to all employees and, of course, the need for there to be a soonest amendment to the Employment Rights Act, a matter on which I already commented unfavourably in this space some weeks ago.
It seems however that there was apparently some disconnect between the formulation of the policy behind the statute and the drafting instructions given, since the Minister insists that every employee is entitled to such a statement in spite of the clear words of the section that stipulates the furnishing of such a statement only to ‘where a contract of employment is contemplated’, a circumstance patently not applicable to persons who are already employed and may have been so situated for a number of years prior.
Indeed, I do not know the extent to which other regional legislations was consulted, but the expressed desire of the Ministry might have been easily achieved had there been close regard paid to the similar provision in the Protection of Employment Act 2003 of St. Vincent & the Grenadines that states: ‘An employer shall provide conditions of service referred to in subsection (1) within seven working days from the date of employment or four calendar weeks where the employee is in employment at the commencement of this Act’ [Emphasis added].
Arguably, a clause along the lines of that emphasised above would have served admirably to achieve the required purpose. As it is now, perhaps this falls to be categorised as one of the proposed amendments to the Act, since on present construction it does not achieve the result officially contended for.
Also of interest in this connection is the provision relating to the right of the employee to a period of notice of termination of employment. The failure to give the required notice will, perforce, result in a wrongful dismissal, but the larger question remains whether this would be a matter for the ordinary courts or, as I am inclined to suggest, a matter for the Employment Rights Tribunal established under the Act, since the right to a specified period of notice is properly classified as a right granted under the Act and thus falls squarely within the provisions of section 8 that confers exclusive jurisdiction on the Tribunal to remedy the claimed infringement of a right conferred on an employee under the Act.
While the notion of wrongful dismissal did indeed exist at common law prior to the commencement of the Act, it did not do so locally by virtue of any specific statutory provision as to the employee’s entitlement to a minimum notice period of termination of his or her employment.
Oddly enough, where the allegedly wrongful dismissal takes the form of a constructive dismissal, the employee may be restricted to an action in the ordinary courts since this arguably would not be a right conferred by the Act.
The clarification of these matters as well as the need to satisfy the minimum period of notice of termination even if a dismissal is considered to be not unfair present appropriate subjects for any proposed reform.
Reparations and the Law
The topic of reparations to the regional descendants of the enslaved Africans or the countries they now inhabit reared again last week with the visit of the British Prime Minister, Mr David Cameron, to Jamaica and the consequent publication of an open letter to him by Sir Hilary Beckles, current Vice-Chancellor of the University of the West Indies. Sir Hilary counselled Mr Cameron that he owed it to us ‘’’to communicate a commitment to reparatory justice that will enable [his] nation to play its part in cleaning up this monumental mess of the empire¡±. Sir Hilary asked not ¡°for hand outs or any such acts of indecent submission¡± but merely that [Cameron] acknowledge responsibility for his (sic) share of this situation and move to contribute in a joint programme of rehabilitation and renewal’.
Unsurprisingly, it does not appear from press reports that Mr Cameron was much moved by the elegance of the language employed in this public missive and he referred to the period time that has elapsed since this inhumanity and urged that it was time for the region to move on.
If, as I believe, Mr Cameron is voicing the collective view of the current leaders of those jurisdictions, then it will compel the regional reparation movement to pursue the matter in the context public international law, an arena in which, it may be argued, the case for reparations appears notoriously weak.
In that forum, matters such as the specific identification of the potential claimants, of the operative cause of the harm averred to have been suffered and of the precise identity of the true defendants will assume prominence in contradistinction to the immediate allure of the broadly framed moral argument.
If the regional movement for reparations is to be effective, it seems preferable for it to have its existence in the context of the moral obligation.
Law might not be a ready accomplice.