The duke cannot deny the course of law, for the commodity that strangers have With us in Venice, if it be denied, Will much impeach the justice of his state,Since that the trade and profit of the city consisteth of all nations. –The Merchant of Venice
A couple of years ago, in a piece entitled “Things fall Apart”, I described in this space the sadness evident on the face of Ms Judy Archer who had just been informed that she would be among those who were being made redundant by the National Conservation Commission [NCC]. If readers will permit me to reproduce the relevant paragraphs:
“Her tear-filled eyes and sorrowful expression said it all. Hand covering her mouth in that traditional Barbadian, perhaps originally African, expression of horror and disbelief, one that is usually accompanied by a gasped “Haw…haw”, her world had suddenly come crashing down about her. After eleven years of service at the National Conservation Commission [NCC], a forlorn Ms Judy Archer would now be going home to an uncertain future in a job market that has little time for those of her years.
I refer, of course, to that impactful front-page composite photograph in the Daily Nation newspaper for Thursday, May 1, May Day or International Workers’ Day, a day that has historically been regarded as one of celebration of labourers and the working classes. The irony in that photograph on that day was therefore near palpable. And the bold headline under the photo was most apposite. “Not Right”, it screamed in yellow capitals against a blood-red background. No, it can’t right (sic) that poor Ms Archer should be made to cry so, I thought. Never before had an image in a newspaper so moved me.”
This photograph is to be sharply contrasted with that on page 3 in yesterday’s edition of the Barbados Advocate where there is an alleged headshot of Ms Cutie Lynch, the representative NUPW claimant in the action for unfair dismissal against the NCC brought by those workers similarly situated as Ms Archer and herself. The matter, as with all those claiming unfair dismissal by an employer, fell within the exclusive jurisdiction of the Employment Rights Tribunal (ERT) since it concerned a right originally created by the Employment Rights Act 2016.
The photo of Ms Lynch reveals none of the angst displayed by Ms Archer. Rather, with her short-cropped hair dyed blonde, her regal facial bone structure and full sensuous lips, she wears an expression of bemused interest as she listens to the delivery of the Tribunal’s decision.
In that judgment, the Tribunal determined, as appears to have been popularly accepted all along, that the dismissals were unfair since they did not comport with the mandatory requirements under section 31 of the legislation for the NCC to consult with the representative organization of the workers or the workers themselves nor did the employer fairly apply (what I suppose was) the proposed method of selecting the employees who were to be dismissed. Ordinarily, this method would have been agreed between the parties, but in the absence of the consultative process at all, this would have been implied under accepted principles of good industrial relations practice. Hence the dismissals were found to be unfair since even though they were for a potentially fair reason, namely redundancy, the validity of this as a fair reason for termination of employment is expressly made subject to the above cited provisions of section 31 of the Act, among others.
There are, however, at least two aspects of the decision that to my mind should sustain further analysis. First, the relatively unsophisticated local reliance on the use of customary practice as opposed to a statute to enforce the compulsory recognition of workers’ organizations as certified bargaining agents for employees and, second, the nature of the remedy reported to have been awarded to the unfairly dismissed workers, that of 52 weeks’ wages.
It should be notorious by now that Barbados, unlike most of the regional jurisdictions, does not statutorily provide for the compulsory recognition of workers’ organizations as certified bargaining agents by employers, preferring rather for the parties to resolve the matter by custom or trial by industrial strength.
Oddly enough, a draft statute on the matter put out for comment nearly two decades ago was met with lukewarm response from the unions themselves although, to my best recollection, its provisions varied little from what currently obtains in practice. In yesterday’s decision, the Tribunal rejected the NCC’s plea that it had not expressly recognized the NUPW as bargaining agent for the workers since, by treating with the union over wages and other terms of employment; it had at least done so impliedly.
There may be an allied argument that since the right to join a trade union for the protection of one’s interests is a constitutionally guaranteed right of the individual and that since the state owes a democratic obligation not only not to infringe these rights but also to ensure their enjoyment; that since the failure to provide for the compulsory recognition of these organizations by the employer not merely deprives the right of any real substance but also reduces the ability of the worker to avail him- or herself of the true intendment of the fundamental right, the state is remiss in its obligation.
According to the reports in today’s press, the Tribunal also awarded the applicants a sum equivalent to 52 weeks’ wages as compensation for the infringement of their statutory right not to be unfairly dismissed. This award is provided for under paragraph 1 (c) of the Fifth Schedule although, as a plain reading of the provision below should demonstrate, this award is not available for all unfair dismissals but for those only that are automatically unfair as being grounded on one of the prohibited grounds under section 30 (1) (c) of the Act.
According to that paragraph, the aggregate of the award may include “an amount not exceeding 52 weeks’ wages where the dismissal was for a reason specified in section 30 (1) (c) or, where there was more than one reason for the dismissal, one of those reasons was a reason so specified”.
I should mention as a postscript that I am yet to obtain a transcript of the decision and I can therefore make no considered assessment of the applicability of this paragraph in the absence of having read the reasons for the dismissal as found by the tribunal.