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.
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.