Caswell Franklyn, Unity Workers Union

The Caswell Franklyn Column – Unfair Dismissal by NCC, Unfair Decision by Employment Rights Tribunal

Hal Gollop, Chairman f the ERT

Hal Gollop, Chairman of the ERT

The long-awaited decision in the case of the National Conservation Commission (NCC) workers, who were unceremoniously dismissed on April 30, 2014, was handed down by the Employment Rights Tribunal (ERT) on July 15, 2016. That is a day that will go down in infamy in the local labour movement, even if some of the major players don’t realise it as yet.

The fact that this matter has taken over two years to complete does not speak well for the reputation of the ERT. The displaced workers experienced untold and unnecessary hardship while the matter languished as though no one cared if they suffered or not.

The Prime Minister was quoted in the press as saying that he regretted the amount of time it has taken but given the quality of the decision, he thought that it was well worth the wait – spoken by someone who has been able to pay his bills and had not missed any meals. I was able to obtain a copy of the decision, and after reading it twice, I am of the distinct impression that the PM and I read two different documents.

See ERT DecisionEmployment Rights Tribunal 2014 064 Cutie Lynch and NCC Decision, with document

Around the middle of 2013 Government embarked on a major retrenchment exercise in order to bring its expenditure to a manageable level. By the time that exercise was over the following year, the Government’s workforce was reduced by approximately 6,000 persons. To this day, however, the Government is only prepared to admit that 3,000 persons were released from its service. Mind you, this was after solemnly promising, during their election campaign a few months earlier, that there would be no job losses in the Government service.

Thereafter, Cabinet approved a policy that set out the criteria for the release of staff. Most importantly, Government directed that the retrenchment exercise should generally be done on the basis of “last-in-first-out” (LIFO). Despite that clearly articulated policy, several statutory corporations, including NCC, carried out the exercise in defiance of the Cabinet’s instructions.

Workers at NCC, through their unions, challenged their dismissals as being unfair, before the ERT, on the grounds that the statutory corporation did not follow Cabinet’s policy of LIFO; and that they breached the Employment Rights Act by not consulting with the workers or their accredited representatives, prior to making the workers redundant.

To my mind, after considering the evidence, in its extremely prolix decision the ERT came to the only logical conclusion that the workers were unfairly dismissed. Remarkably, after setting out the reasons why the workers should not have been terminated, the ERT refused to order their reinstatement or re-engagement. Instead, the tribunal strayed from its mandate and invaded the realm of Government policy. It said at page 35 of the decision:

“It was clearly demonstrated from the evidence taken in this matter that the practicability of reinstatement or re-engagement of the complainants at this time is too remote given the reason for the implementation of the redundancy measures in the first place; it is our view that there would have to be an adjustment to the policy articulated by the Government through the Circular No. 1/2014, M.P. 6205 vol. 1T3 for re-instatement (sic) or re-engagement to be practicable”.

That is not the tribunal’s business and to my mind, it is an irrelevant consideration. The ERT went on to state that an order for reinstatement or re-engagement would be nugatory (useless). Useless for whom? Certainly not the workers! An order for reinstatement would mean that the employer would have to pay the wages of the workers from the date of their dismissal until the reinstatement took effect, in accordance with section 34 of the Employment Rights Act. In this case, it would mean that the NCC would have to pay the workers their wages for two years.

No wonder the Prime Minister is singing the ERT’s praises; if reinstatement were ordered government would have to look for double the amount that it is now required to pay under this flawed award.

Tags: , , ,

99 Comments on “The Caswell Franklyn Column – Unfair Dismissal by NCC, Unfair Decision by Employment Rights Tribunal”

  1. Gabriel July 27, 2016 at 7:50 AM #

    McDowell says the union has been advised that the reinstatement is an option to take to the law courts however the length of time to get a hearing,placed at 3 years,( justice delayed is justice denied)when added to the existing 2 years it took for this JA government to give a “prioritized”decision,it might be foolhardy to pursue the route of the courts,notoriously now deficient and no better than what passes for courts in Zimbabwe.How the mighty have fallen,even the Roman Catholic bishop is passing judgement and sentence on the Freundel fools for a cabinet.
    Btw,notice how Bishop John Walter Dunlop Holder is saying to the likes of Durant the fraud,that the Anglican Church is not for sale to this or any government and further,it is not about grabbing headlines like Durant and all the other frauds walking bout Barbados fooling only ignorant people.All wunna going straight to that place known as hell.

    Liked by 1 person

  2. Well Well & Consequences July 27, 2016 at 8:08 AM #

    Dont worry Piece…they cant pay a dime to anyone when the strokes, heart attacks, diabetes, high blood pressure, brain tumors, aneurysms etc, rage out of control, they will die and leave every penny stole from the taxpayers, bribes they took from the minorities and scams they have in the works…no escape for “social demons”.

    Like

  3. Frustrated Businessman aka 'Nation of Laws' my ass. July 27, 2016 at 8:14 AM #

    David July 27, 2016 at 6:47 AM #
    It would be an interesting exercise to list all the projects promised by government since 2008 and filter those completed.

    The purpose of gov’t is to create the legal, human, institutional and physical environment necessary to stimulate an economy through business activity, financed by taxes raised from said activity which also pay for social services. Contrary to what some Bajans might postulate, social services DO NOT come first, business activity to pay for social services must come first.

    But not in Bim. We passed that obviosity like a full bus. Except the reason the busses are over-crowded is that, once again, gov’t proved that the Transport Board doesn’t run as efficiently as private busses which don’t get the benefit of tax-free inputs.

    So gov’t sets itself up in open markets to compete against tax payers who it relies on for tax income needed to pay for social services, but then unfairly competes against said tax-payers due to its own tax-breaks and the lack of requirement to actually operate at a profit. Technically, every statutory corporation in Bim is insolvent except BNOC and that is being sold to Kyfin to pay back the money the other useless statutory corporations owe him because they are insolvent.

    Eddy Murphy or Monty Python couldn’t make this shit up.

    So the NCC, which shouldn’t exist at all to begin with, ironically, will now be instrumental in bringing down the idiots that shouldn’t have supported it at all. All because the gov’t of Barbados is the employer of last resort and pays employees just enough to exist in an environment in which they can hardly advance, better themselves or otherwise contribute to our nation in any tangible way.

    Welcome to the Barbados zoo. Please don’t pet the animals!

    There will be no economic recovery under Fumble’s useless zoo-keepers.

    Liked by 1 person

  4. Watchman July 27, 2016 at 11:06 AM #

    @ Piece

    Most of the DLP past MP were brain dead before they die, and the present MPs are in a state of extreme confusion, poor Walter PPK, his senses of wanting to make a difference in the DLP got wacked

    Like

  5. Bush Tea July 27, 2016 at 2:00 PM #

    @ Well Well
    Dont worry Piece…they cant pay a dime to anyone when the strokes, heart attacks, diabetes, high blood pressure, brain tumors, aneurysms etc, rage out of control,….
    ++++++++++++++++++++++++++++++++++++++++
    Not exactly true WW&C…. They will spend it ….BUT in vain…

    One would have thought that after living through the karma meted out to their former leader just 7 years ago, these morons would have been taught a valuable lesson about ill-gotten gains…

    But apparently they did not!!!
    Typical.
    A fool usually has to feel it personally …to know it….

    Liked by 1 person

  6. Well Well & Consequences July 27, 2016 at 2:48 PM #

    Karma Bushman….Karma, they never see her until she is right there.

    http://www.nationnews.com/nationnews/news/83679/19-royal-westmoreland.

    All their lies are immediately revealed…here is Brexit NOT affecting the island, as Sealy said.

    Like

  7. Colonel Buggy July 27, 2016 at 10:47 PM #

    Gabriel July 27, 2016 at 7:50 AM #

    Allwunna going straight to that place known as hell.
    ………………………………………………………………………………………
    Man wake up! We there already.

    Liked by 1 person

  8. Colonel Buggy July 27, 2016 at 11:08 PM #

    Three years to fight an appeal by the sacked NCC workers for reinstatement, but ever so often we can see less significant cases being fast tracked through the court system.
    The Dipper ,as always was right. “If you want justice keep away from the law courts.”

    @ac. The NCC workers is opting for their money , are choosing the better of two evils. They have been shafted by this Government. They,and others in the same boat , will get their own back in s 2018.

    Like

  9. Gabriel July 28, 2016 at 9:26 AM #

    Colonel
    Read the tea leaves…..Sam Lords photo op turning the sod.Hyatt photo op,signing the paper work,out of court settlement a la Maloney and the Rock Hard fiasco,Solar plant start up after NCC meeting(read Denis Lowe and Cahill like caper)employing 300..Four Seasons re start after paper work signing …….we can listen for more crap and Worrell placing unemployment at 4% next.

    Liked by 1 person

  10. Colonel Buggy July 28, 2016 at 2:42 PM #

    Donville Inniss is pushing for the newly ,or yet to be, established Caribbean Court for Arbitration and Mediation (CCAM) to be home ported in Barbados.
    We are really suckers for punishment. We cannot get Caricom to work. We cannot sell the CCJ to the majority of Caricom member countries. We cannot get member countries who are benefiting from LIAT to buy into it. We have a massive back log of cases in our own court system, with the on-demand population of Dodds outnumbering the convicted population. It took an haphazardly appointed Kangaroo court , two years to reach a decision on the NCC unfair dismissal case. And now we want to throw another elephant into the mix.

    Like

  11. Gabriel July 28, 2016 at 6:34 PM #

    Trinidad set up an Industrial Court to cater to the high repeat infringements in employee/ employer relations.Antigua set up a similar Court some years ago.I would think any experience in dealing in matters of Arbitration might more appropriately be domiciled in either TnT or in AnB.Just saying because Barbados is not benefitting from the useless UWI graduates to be found in the Parliament of Barbados.The colonial government taught us something that the homegrown breed don’t understand upwards of practicing in the 50 years of ‘dependence’.

    Like

  12. David July 31, 2016 at 1:10 PM #

    The fact that the President and General Secretary of the NUPW are not reading from the same script should be of concern to workers. Further, that workers at the NUPW Office have been affected by having their wages delayed is embarrassing.why in this day an age workers are being paid by cheque anyway.

    Liked by 1 person

  13. Caswell Franklyn July 31, 2016 at 3:22 PM #

    David

    The President is showing the staff that he has the power.

    Sent from my iPad

    Like

  14. David July 31, 2016 at 3:34 PM #

    @Caswell

    What would be the motive to alienate NUPW staff?

    Like

  15. Caswell Franklyn July 31, 2016 at 3:39 PM #

    David

    It is just a fool showing that he has the power. He does not need them now. If there is another attempt to remove him, he is assured that MAM would summon the party faithful to defend him.

    Sent from my iPad

    Like

  16. pieceuhderockyeahright July 31, 2016 at 4:51 PM #

    @ Caswell

    There is something that you mentioned in your 3:39 post that is interesting for the specific Union(s) and is frightening

    Recently during the City of Bridgetown Credit Union elections, a place where the BLP operatives now abound in the body of one Holder, a few bus loads of members were off loaded on the AGM, with predictable results.

    What you are alluding to, very strongly, is that the so called institutions that are there to represent workers concerns, have been so infiltrated by political parties that they are really just extensions of the party in power

    Would you care to comment on if this worrisome configuration is of concern to you and whether you see that this will change anytime soon?

    And more importantly if something can be done about it

    Like

  17. David July 31, 2016 at 4:53 PM #

    @PUDRYR

    James Paul is a part of the CoB outfit as well.

    Like

  18. pieceuhderockyeahright July 31, 2016 at 5:27 PM #

    @ the Honourable Blogmaster

    Remembrance will make me recall James Paul upstairs that shanty building just East of the Jewish Cemetery and in the same complex with the sports shop. I remember James well so I shall say no more that an apple cannot fall far from a tree unless it is up a hill.

    @ Caswell Franklyn

    De grandson started a poster about you.

    It is titled “only three lawyers in Barbados ”

    David Come Sing a Song, Jeff Cumberbatch and you, yes an though many will say you doan have no LRC or whatever Mugabe Mottley is supposed to have, you are on the list.

    Barbados has 1100 lawyers yet the only three who put their necks on the line for the underdog are the three of you.

    It is truly a shame that we have come to repeat how Horatio kept the Bridge, in living colour here at these shore of Bim

    Like

  19. Caswell Franklyn July 31, 2016 at 6:11 PM #

    Piece

    The major trade unions have long been taken over by political parties. The NUPW was an organisation of mostly DEMS and now Akanni, Asokore and Fabian are charting a course to Roebuck Street. That fight is ongoing. BWU became DLP country from the time Grantley Adams refused to put Frank Walcott in his cabinet. It is alleged that Toni is only one BEE in the midst of DEMS so she can’t change the course of BWU just yet.

    After the credit unions started to become influential the politicians began to take interest. You are right about that particular COB election. As soon as the elections were approaching the numbers in the hall started to grow. Apparently a bus load of people accompanied by Mia Mottley joined the meeting and as a result Lynette Holder emerged victorious. Thereafter, COB took a decidedly BLP stance in hirings and sponsorships. As a matter of fact, one of the BLP operatives landed a job there and almost immediately started to steal credit union funds. When she was discovered, the board tried its best to cover it up. Unfortunately for them, I was elected to the Supervisory Committee and I insisted on police involvement.

    The DEMS have fought back and now COB is firmly in control of DLP operatives.

    In the case of Public Workers’ Credit Union, the DEMS managed to infiltrate that organisation to the extent that that it was used in the CLICO corruption debacle. Thompson wanted money to help bail out CLICO and he turned to that credit union. He manoeuvred a loan from NIS for them to purchase Clico Mortgage Finance Company, now Capita. NIS money was laundered through Public Workers Credit Union to try to save CLICO. In exchange, Thompson was able to get the police to stop the investigation into embezzlement of Credit Union funds.

    Piece, I am afraid that it is going to be extremely difficult to stop the rot. The Financial Services Commission that now regulates credit unions is completely useless and political. The Co-operative Principles no longer guide credit unions in Barbados. The rules have been changed to allow politicians to take over credit unions.

    Imagine, the Government levied an illegal tax on credit unions and not one credit union decided to fight against it.

    Like

  20. pieceuhderockyeahright July 31, 2016 at 6:51 PM #

    @ Caswell,

    Men like you and Bush Tea does frighten me.

    After wunna does bring the facts bout Carol to the fore I become so dismayed about whether this whole struggle to do the right thing and to fight for change, I wonder if it is futile and why bother.

    I mean just look at them!! Brazen thieves up front and lording it over the rest of the world, it make you ask, what is the point?

    Like

  21. David July 31, 2016 at 6:53 PM #

    @Caswell

    Is that what Donville is saying?

    Our takeaway is that he has challenged the BA to take ownership given their key role as officers of the Court. It is a call BU has been making from Tales of the Courts.

    Like

  22. Caswell Franklyn July 31, 2016 at 7:06 PM #

    Piece

    The crooks want us to give up. Nothing would please them more.

    Like

  23. David July 31, 2016 at 7:11 PM #

    @Caswell

    Do not understand what you are saying. If this lady did a wrong why are we listening to her being a leading light on the airwaves in the early morn?

    Like

  24. Caswell Franklyn July 31, 2016 at 7:19 PM #

    David

    This is Barbados the Sicily of the Caribbean.

    Sent from my iPad

    Like

Join in the discussion, you never know how expressing your view may make a difference.

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: