Today’s Barbados Advocate editorial attacks the issue of the rights of the employee AND employer during a national shutdown – Barbados Underground
One of the more contentious issues raised during Wednesday’s national shutdown, owed mostly to the weather system traversing the region, was the legality of the actions of some employers who nevertheless decided to open their places of business and consequently to require the attendance at the workplace of employees. The procedures for business operation during a national shutdown are supposedly captured in the policy enunciated by the local Department of Emergency Management- but the circumstance of a national shutdown also raises a number of intriguing legal issues for employees that are not all answered by enacted legislation and that, as many of the rights and duties of the parties to the employment relationship, depend for their resolution on a combination of the provisions of the employment contract, of any applicable collective agreement and general principles of the common law.
Among the numerous questions that are likely to arise in such a scenario are whether an employee is entitled to leave from work to care for a young child who is at home because schools are closed; whether the employee is entitled to prioritize national service in assisting with emergency services over his or her employment duties; whether the employee is entitled to be paid wages even though he or she finds it impossible to attend work because of blocked roads or unavailable transportation or to work at all because the workplace is not in a fit state; and whether the employer is obligated to pay wages to its workers because there is no business owing to the effects of the weather conditions and the consequent national shutdown.
Leave entitlements will of course depend on the terms of the arrangements between the parties as to when and how and for what purposes such leave may be taken, whether expressed in the contract or incorporated therein by means of a provision in a collective agreement between the employer and the worker’s representative. It should be noted in this connection that the Employment Rights Act 2012 classifies as unfair the dismissal of an employee for the reason “that the employee was absent from work as a result of the performance of a “national duty”. According to section 30 (2)(d) of the Act, this includes “participation by the employee in a voluntary emergency management activity in certain stipulated circumstances.
The entitlement to wages is essentially premised on the readiness and willingness of the employee to work, so that once this condition is satisfied the employer cannot escape liability to pay wages merely on the basis that there is little business because of the shutdown, although there may be a sufficient justification for non-payment in the event that the workplace has been severely damaged by the natural disaster and is thus unfit for work or, strictly speaking, should the employee simply not attend at the workplace, although this may be a matter for further negotiation between the parties.
There is little doubt that the rights and obligations of employees and employers are impacted in times of natural disaster and, more so, when a national shutdown has been declared. Perhaps most desirable here would be a statute or a set of regulations that clearly sets out the rights of the respective parties in such a circumstance. In the absence of this however, resort must be had to traditional legal principles where there is any dispute.