Jeff_Cumberbatch

The Jeff Cumberbatch Column – Current Issues in Local Employment Relations I

Jeff Cumberbatch - Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

The Barbadian employee and, in some cases, his or her representative union, might agree with the second part of the opening couplet of Charles Dickens’ A Tale of Two Cities” that these are indeed “the worst of times” or, if they are not, they do come pretty close. Last week, we heard from no less a personality than the Honourable Labour Minister that some local employers are ignoring the applicable labour laws, especially those pertaining to the rights of the employee under the relatively recently enacted Employment Rights Act and, perhaps more chilling, some of the provisions under the Safety And Health at Work Act.

And that is not all. ON the collective front, the Barbados Union of Teachers is clearly in a quandary as to the appropriate strategy to be employed (!) in order to establish its claim for some of its members to be reimbursed those wages that were abated by the employer, the Ministry of Education earlier this year in response to the absence of those teachers from their duties while engaging in union activity.

Having persuaded itself that it had the law on its side since it was not at the time engaging in industrial action, the BUT has, seemingly, now been disabused of that idea and has chosen rather to resort to the tried and tested method, enabled by its freedom of association, of industrial action so as to press its suit. I suppose that this initiative is consonant with the famous advice once given to lawyers by Carl Sandburg, a US poet and prize-winning editor, to the following effect – “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell”. The union’s chosen recourse in this instance is clear.

The Barbados Workers Union, on the other hand, has publicly avowed its displeasure with the use by some local employers of fixed term contracts so as to avoid their statutory obligations to those employees who might otherwise acquire certain rights by a period of continuous service. Of course, there is nothing inherently wrong with the concept of the fixed term contract and its use may be legitimately required in those cases where the worker is merely replacing an employee who is temporarily absent from work or where there is a temporary surge in work volume, though not expected to last beyond a foreseeable period, thus engendering a need for the non-permanent engagement of workers.

The rub comes, however, where the employee is consistently rehired on a fixed-term contract, seemingly in perpetuity, thus enabling the employer to avoid, or even evade in some cases, its statutory obligations while the employee suffers the consequent insecurity of tenure and is unable to claim the continuity of employment necessary to become entitled to basic statutory entitlements.

It bears reminder that the International Labour Organization frowns on this practice and, in its Recommendation 166. it stipulates that “adequate safeguards should be provided against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from the Termination of Employment Convention, 1982, and this Recommendation”.

One of the safeguards recommended is limiting recourse to the circumstances in which employers may utilize fixed term contracts; and that of deeming contracts for a specified period to be contracts of indefinite duration especially when renewed on more occasions than one for other than prescribed reasons.

As I note in a piece I have prepared for future publication, Montserrat only of the regional jurisdictions has legislated in accordance with this provision. The point to be made here is that since the use of the fixed term contract may be legitimate and even obligatory in some scenarios, common sense may warrant a concentration on the prevention of abuse of these contracts rather than their complete prohibition.

Again, the popularity of social media, wherein participants are not at all reluctant to share the details of their meals, their views as to the intellectual capacity or, more frequently, incapacity of public figures and even their fidelity to religious doctrine was destined eventually to intersect with the workplace. It did so recently in the notorious dismissal of an employee miffed at the requirement to participate in a safety drill and who, we suspect, would scarcely be consoled by the fact that her post quickly went viral, thereby transforming her into a poster girl for all those workers who might be afraid of sharing publicly their disaffection with the conditions at their workplaces.

This matter cries out for the mandatory drafting of a workplace social media policy by the employer -reasonable notice of which should be provided to each employee. This would serve to clarify what does or does not constitute acceptable conduct in this context and should provide for progressive discipline in the event of an infraction. It would also include matters such as Internet and social media access on work computers and at work in general; restrictions as to the content of any posts by the employee and prohibitions on the identification of the organization with the personal views of the worker on socially sensitive issues such as partisan politics and religion.

Enough for one day. I propose to continue this discourse next week with an examination of the response of the local workers organizations to the official outsourcing of work traditionally performed by public employees to private contractors and of the international labour law perspective on the reversion to his substantive post in the public service of the current president of the National Union of Public Workers.

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31 Comments on “The Jeff Cumberbatch Column – Current Issues in Local Employment Relations I”

  1. lemuel October 30, 2016 at 8:03 AM #

    Jeff:

    While I agree with your position on the stupidity of most , on the social media scene, to exhibit to one and all their less then flattering “goods”, I am mystifies as why no one has challenged the abuse by employers of this medium and attempt to protect the rights of those who take to the social media to advertise what they think the public needs to know. Is the concept of freedom of expression dead in the Caribbean?

    Like

  2. Jeff Cumberbatch October 30, 2016 at 9:34 AM #

    @Lemuel. an action for infringement of a constitutional right such as freedom of expression is not available against a private entity, but against the state or government only. This is known as the “state action doctrine” and was applied some years ago to deny a remedy to employees of Budg-Buy Supermarket when they claimed that the employer had infringed their constitutional right to freedom of association by refusing to allow them to join a workers’ union of their choice.

    Like

  3. Dompey October 30, 2016 at 10:05 AM #

    “Just to touch on your point regarding the Workplace Social Media Policy”

    I know for a fact that a lot of employers here in the US have implemented what is called a Policy on Cellphone and other Electronic Equipment during working hours, however, employees can still use their cellphones during lunch or break -time, especially when the lunch and breaks aren’t paid for by the employers.

    Nonetheless, employers have also established policies for employees who job description involves the use computers, and these policies often governs the access to social media sites, as well a pornography sites etc.

    Now with that being said, it is in fact time for employers in Barbados to follow this line of think, in an effort to avoid any misunderstanding by the employees as to the use of Cellphone and other Electronic Equipment during working hours. And any violation of the Policy on Cellphone and Electronic Equipment use during working hours should lead to progressive discipline.

    Like

  4. Dompey October 30, 2016 at 10:38 AM #

    Lemuel

    I have often read about cases here where people took to social media on their personal time, and posted defamatory statements about the employer or a specific employer, and were terminated upon their returned to work.

    Like

  5. chad99999 October 30, 2016 at 11:10 AM #

    In Toronto, it used to be a routine practice for major banks to hire for certain entry-level positions, then lay off the employees as soon as they satisfied the minimum requirements for employment insurance benefits.Most of the same employees would be re-hired not long after their benefits expired, and the cycle of short-term employment would begin again and be repeated every year.

    The bank would eventually give permanent jobs to some employees, but only after they had demonstrated their loyalty by putting up with the uncertainty of on-off employment for many years.

    I am not sure if the government has cracked down on these abusive practices, but they illustrate the degree of “flexibility” many employers in First World countries demand.

    Like

  6. Dompey October 30, 2016 at 11:21 AM #

    Chad9999

    Isn’t that called Durational Employment? And it has been common practiced here in the US for many years, and as a matter of fact, state and federal government here have engaged in this practice as well, so don’t hold out any hope for legislation to address this practice.

    Like

  7. Dompey October 30, 2016 at 11:32 AM #

    Chad9999

    What is common practice here as well is a concept called Per Diem Employment , and this where the employee is paid at a daily rate with no employment benefits, such as sick-time, vacation-time and personal time as well as the right to join the union if there is one etc.

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  8. Tony Trotman October 30, 2016 at 1:56 PM #

    Preventing the Abusive Use of Successive Fixed-term Contracts

    There is such legislation in Member States of the European Union, e.g. The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations in England. And a gap between contracts may count towards an employee’s continuity of employment: section 212 of the Employment Rights Act 1996.

    Social Media Policy

    A disciplinary policy should clearly warn the workers that their conduct outside of the workplace or working hours may result in disciplinary action being taken against them.

    Like

  9. Dompey October 30, 2016 at 2:50 PM #

    I have noticed during the years that the way in which employers circumvented the fixed union contract, is to instituted Policies and Procedures which makes the working environment a living hell for employees. Almost every week you can guarantee that there is another policy or precedure, and is has become so ridiculous that not even the union representatives can keep past with them.

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  10. Sargeant October 30, 2016 at 8:48 PM #

    @Chad
    In Toronto, it used to be a routine practice for major banks to hire for certain entry-level positions, then lay off the employees as soon as they satisfied the minimum requirements for employment insurance benefits.Most of the same employees would be re-hired not long after their benefits expired, and the cycle of short-term employment would begin again and be repeated every year.
    +++++++++++
    I live in Toronto and consider myself fairly up to date and cognizant of most things in the Banking Industry and have never heard of such a practice, the fact that I haven’t heard doesn’t mean it didn’t exist but I believe I would have heard of this, in the interest of transparency could you name any of these “major banks”?

    Like

  11. Dompey October 30, 2016 at 9:04 PM #

    Sergeant

    Canada is bigger than the United States last I checked and though you might not have heard of the practice in the banking industry in Canada, it is a common practice here in America in both the private and governmental sector.

    Like

  12. chad99999 October 31, 2016 at 1:24 AM #

    Sargeant

    I have lived in Toronto on and off since 1967, but I have also spent time in other Canadian cities and have lived in the United States for extended periods of time.How long have you lived in Canada?

    I know that the practice I described was going on as recently as 2009. When I say it was going on, I mean that I have friends and friends-of-friends who were personally put through this experience at TD and Scotiabank.
    I have heard the practice also goes on at CIBC.

    What do you know about the Canadian banks?

    Like

  13. Sargeant October 31, 2016 at 9:38 AM #

    Chad
    I have spent more than half of my life living in the two largest cities in Canada and have friends who have been employed by the same organisations you referenced. My better half was employed by two of the Big Five and is a pensioner of one. We follow events in the Financial Services industry because we have skin in the game relating to investments. You wrote with confidence of institutional hiring practices which I have never heard of and I asked for confirmation. Knowing what I know about journalism in this part of the world this would be a red meat story that would be splashed all over the media.

    What do I know about Banks in Canada? A little more than you think but there is no merit to rehashing details here but Banks were in the process of downsizing since the start of the millennium, some of those downsized may have been hired back under contract as ‘consultants’, but your scenario is flawed because Banks are subject to the Federal Labour Code, any full time employee laid off after that employment stint would have to be paid a minimum of three months salary or more so why would they lay off someone and pay them severance only to rehire them and pay another severance when the cycle continued?

    Like

  14. chad99999 October 31, 2016 at 10:02 AM #

    Sargeant

    You do not know what you are talking about.

    I gave you specifics. The practice I am describing is well known in Toronto among immigrants, especially South Asians, so I suppose the Star knows about it. I do not know if they have done stories on it. Apparently neither do you

    Re-read my original post.The entry level positions I am talking about are contract positions that do not entitle the employees to severance. Even if they were given severance it would be a pittance.

    I am not going to argue with you. I am going to tell you flat out that you are wrong. Try to learn something about Toronto that you obviously don’t know.

    Like

  15. Sargeant October 31, 2016 at 10:49 AM #

    Chad
    You don’t know what you don’t know, the turnover that you are speaking of would be related to employees supplied by Employment Agencies. Banks (like other companies) hire them for specific periods, short of the time mandated for them to be considered FTE’s. When that period is up the assignment is over but the position is still not filled. The Bank contacts the Agency and lo and behold they have someone who can fill the job (the same person that just finished the assignment) and the cycle continues anew.

    BTW those folks seldom land permanent positions because the Banks would have to pay the Agency a ”finders fee” and Banks avoid that kind of expenditure.

    Talk to your buddies again, you are missing the full story.

    Like

  16. chad99999 October 31, 2016 at 11:12 AM #

    The points you have made do not contradict anything that I have said. So don’t try to be condescending with your remarks.

    Whether or not the banks hide behind a legal veil — in which an “employment agency” is an intermediary — the substance of the transaction is that people are hired on short term contracts and work at the bank until they are laid off.

    Go over each point of my original statement. You have not shown a single assertion to be incorrect.

    Time to go back to school.

    Like

  17. David October 31, 2016 at 11:19 AM #

    @chad99999

    A person employed on a short term contract cannot be laid off to use your words.

    Like

  18. Dompey October 31, 2016 at 11:33 AM #

    Sergeant

    Across the border here in the States it is called Durational Employment.

    Like

  19. chad99999 October 31, 2016 at 11:41 AM #

    David

    If a person is on a three-month, indefinitely renewable contract, and midway through one of the three month terms, their employment is interrupted/terminated with a telephone call, justified by the statement there is not enough work for them to be retained until the end of the current three-month term, they have been laid off.

    Want to argue?

    Liked by 1 person

  20. chad99999 October 31, 2016 at 12:03 PM #

    In Ontario, lay offs can last for extended period of time — more than six months — without even being considered full-fledged terminations.

    The term ‘lay-ff’ is used here to describe an interruption of employment ordered by an employer that is unrelated to work performance and typically justified by a temporary downturn in the volume of business.

    Like

  21. David October 31, 2016 at 1:24 PM #

    @chad99999

    This is a hypothetical discussion because we would have to be aware of the terms and conditions of the contract. Usually if a person has signed onto a 3 month contract and the employer cancels the contract before the contracted period the employee would be paid for the full term. We have to view the contract!

    Like

  22. Peltdownman October 31, 2016 at 2:07 PM #

    “and, perhaps more chilling, some of the provisions under the Safety And Health at Work Act.”

    Surely, a fire drill is a very important part of health and safety in the work place. Yet when an employee complains about it – even worse – complains that she was interrupted applying her makeup during working hours, she is not criticized, rather praised and supported. I understand that the history of Barbados will always make the employer the villain, but one must ask where Barbados is heading when, rightly or wrongly, this antiquated 20th century legislation is turning the workforce into the most unproductive that it has ever been. It’s wake-up time, folks. Nobody is owed a living. The European countries, on whose labour legislation ours is based, are now desperately trying to get out from under the laws that have seen their own productivity and competitiveness in free fall. All employees need protection from exploitation, but the pendulum has swung too far. If people cannot see the relationship between Barbados labour legislation and the lack of foreign investment, they need their eyes tested. How many manufacturing jobs have disappeared in the last 30 years? Who would employ any person in Barbados for any length of time? We need direct investment in productive activity other than tourism, or we are done for, and it just won’t happen in the current labour climate.

    Like

  23. David October 31, 2016 at 2:25 PM #

    Agree with you 100% Pacha.

    This is the level of mediocrity that defines our behaviour these days.

    Like

  24. Peltdownman October 31, 2016 at 4:05 PM #

    Pacha? Oh no David, please!

    Like

  25. David October 31, 2016 at 4:16 PM #

    @Peltdownman

    The girl is a nut and while it is unfortunate she was terminated the level of ignorance (lack of awareness) she exhibited cannot be explained by a sensible person. We need to lift our standards!

    Like

  26. Vincent Haynes October 31, 2016 at 4:36 PM #

    Which labour force are we concerned about?

    Passing through the west coast over the last month,I was pleased to see construction work restarted but what struck me forcibly was the general absence of indigineous bajans on these sites.

    It reminds me of London in the 70’s,where I knew anglo-saxons with PHDs working as brickies&garbage collectors whereas in Bim our guys prefer not to work for low wages….what effect will this have on the future of our country?

    Like

  27. Hopimama October 31, 2016 at 4:42 PM #

    Dave … Where Bonny Peppa at? She tekin pichas o plants o’ still sucking deep on dat albino-centric teet? Wunna heah?

    Like

  28. Dompey October 31, 2016 at 4:49 PM #

    Vincent Haynes

    Indigenous Bajans…lol… I’ve heard that word applied in the above context to discribe a native people.

    Like

  29. Dompey October 31, 2016 at 5:40 PM #

    David

    You described the young lady’s level of ignorance and lack of awareness, but somewhere in all of her imperceptibility, an individual with the perspicacity of Mr. Caswell Frankly came to her defence here on BU.
    Mr. Franklyn, seem like the typical lawyer who knows by looking at the evidence that his client is probably culpability of the infraction, but he is somewhat conflicted as to whether or not he should take the case, but he does anyway thus releasing himself of the guilt associated with knowledge of his client’s guilt, thereby leaves the morality of the case for the jury to decide.

    Like

  30. Hants November 4, 2016 at 8:39 PM #

    Like

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