BU shares the Caswell Franklyn Nation newspaper column – he is the General Secretary of Unity Workers Union and BU Contributor.
NOT ALL BLACK AND WHITE: Employee rights still at risk
CASWELL FRANKLYN, […]Added 01 November 2015
MY DAILY INTERACTIONS with employer/employee relations have exposed me to a society where workers are routinely exploited
even in the face of laws to protect them. Unfortunately, these days there is little or no enforcement of labour laws, and coupled with these Government-imposed tough economic times many persons are required to work in conditions that are not far removed from forced labour.
In many instances, workers do not know their rights. Oftentimes I encounter workers who know their rights but accept unfair treatment in silence so that they would be able to continue to afford things like mortgage payments, university tuition for their children and food.
To be balanced, I often deal with managers who do the wrong thing out of ignorance because they have always seen it done that way. This category of manager is not restricted to the private sector. In the Government service square pegs proliferate because of political interference and most of them seem as though they never came into contact with the rules.
Recently, I was involved in two matters that allowed the employees to terminate their own employment and claim compensation for either unfair or wrongful dismissal. This is a concept called “constructive dismissal”.
The first case involved an employee being suspended without pay pending the outcome of a disciplinary meeting. Having suspended the employee in these circumstances, the employer would have dismissed the worker without realising that he had done so. The worker was then left with the option of accepting the employers’ fundamental breach of his obligation to pay wages and claim compensation having been dismissed.
Failure to pay a salary when it becomes due is not the only instance where the worker can claim to be constructively dismissed. In the Barbadian context the most popular examples where a person can claim constructive dismissal include: suspension without pay where there is no such provision in the employee’s contract; reduction in pay without the worker’s consent; sexual harassment by the employer or even by fellow workers in circumstances where the victim complained and the employer failed to protect the victim from that ongoing misconduct; and abusing or humiliating a worker, especially when it occurred in front of subordinates. This list is by no means exhaustive.
The second example is where an employer, a furniture manufacturer, deducted money from workers’ wages to compensate the company for losses that were made because furniture got damaged while it was in storage. The employer alleged that the loss resulted from bad work. This can also amount to constructive dismissal but more particularly, it is a breach of section 8 of Protection of Wages. That section only allows the employer to make this type of deduction if the damage was occasioned by the wilful misconduct or neglect of the worker. Mind you, an employer who is convicted of making illegal deductions is liable to a fine of only $48 or for a second or subsequent offence to a fine of $96.
Government only pays lip service to protecting workers rights. It passed the Employment Rights Act, which gives workers an impressive bundle of new rights, but Government made it difficult for dismissed workers to access those rights. Just consider that the three panels to hear cases must have a lawyer as chairman but it appears that each of them is a practising lawyer who must schedule tribunal hearings around their busy schedules. So much work but no one to do it on a consistent basis and Government feels that’s okay because workers only matter at election time.