The Caswell Franklyn Column – Termination of Employment Claim Procedures Made Simple

Caswell Franklyn, Head of Unity Workers Union

Caswell Franklyn, Head of Unity Workers Union

My last column, on severance pay that was published on New Year’s Day, generated a whole slew of phone and email queries from persons who had lost their jobs over the years. The most frequently asked question came from persons who wanted to know if they can now make a claim for severance payment, in light of the recent court decision.

It really hurts my heart to have had to say to them that their claims would be out of time. In some cases, they had sought legal advice that has now proven to have been incorrect. Others claimed that they enquired at the National Insurance Office, only to be told that their dismissals were not as a result of redundancy and that they would have to go to court. That advice was also incorrect but to be fair to the NIS staff, they were only following previous severance payments tribunals rulings.

In today’s column, I have decided to offer some guidance to workers who have lost their jobs. Mind you, it is not intended to be a definitive work on the subject and it is always advisable to seek professional assistance.

Workers in Barbados’ private sector have three avenues to pursue a claim for compensation, in the event that their services were terminated. Firstly, a dismissed worker can go to court and claim damages in wrongful dismissal if the termination was such that the employer breached the terms of the employment contract. A claim for wrongful dismissal must be filed within six years of the dismissal.

A claim for severance payment can be made to a severance payments tribunal where the employee lost his job because of redundancy or has recently been clarified by the Court of Appeal, if the worker lost the job through no fault of his own. Also, an employee can claim a severance payment from his employer where he was laid off or kept on short-time for thirteen or more consecutive weeks or for sixteen weeks within a period of twenty-six weeks. In addition, a worker can claim severance pay if he terminates his own services (resigns), by reason of the employer’s conduct. Some examples include but are not limited to: sexual harassment; using abusive language to the worker; failure to pay wages when they become due; or changing the employee’s terms and conditions of employment, without the employee’s consent.

I can’t stress enough that it is always best to get professional help before taking any of these steps. It is also important to note that a claim for severance payment can only be made to the Severance Payments Tribunal. And that it must be done within one year of the dismissal.

The third avenue through which a dismissed worker can seek compensation is the Employment Rights Tribunal. A worker, who believes that his dismissal is unfair, must first make a complaint to the Chief Labour Officer (CLO), within three months of the dismissal. He then has forty-two days to effect a settlement of the complaint. Failing that the CLO shall report the matter to the Employment Rights Tribunal, who, according to the legislation, shall “proceed forthwith to consider the complaint”. I am not trying to be funny but based on experience, it would appear that the tribunal has somehow interpreted “forthwith” in some cases to be as long as three years.

If someone, who is unfamiliar with how things work in this country, were to look at the laws that regulate the employer/employee relationship, he would be impressed and would probably come to the conclusion that Barbados is a workers’ paradise. Unfortunately, nothing works as expected from the lofty words of the legislation. Cases languish in all three systems and workers are left to suffer because, in my view, Government does not see workers’ rights as a priority.

The backlog in the courts is legendary but it is as bad or worse when matters go before the severance payments or the employment rights tribunals. The main reason for the chronic delays before both tribunals is that Government continues to appoint chairmen of the various panels that already have busy full time careers and only the workers suffer.

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13 Comments on “The Caswell Franklyn Column – Termination of Employment Claim Procedures Made Simple”

  1. Bernard Codrington. January 15, 2017 at 6:10 AM #

    An excellent piece of work. Very clear and useful.

    Like

  2. David January 15, 2017 at 6:14 AM #

    Agree is it useful. We need our subject matter experts in civil society to perform their civic duty to educate the market they serve. It should not be always about bilking dollars.

    Like

  3. Konkieman January 15, 2017 at 7:23 AM #

    Caswell, very informative article. Can you or others comment on whether the Bdos courts are slanted to workers or employers on matters of severance, or are they well balanced based on evidence.

    Like

  4. Caswell Franklyn January 15, 2017 at 7:35 AM #

    Konkieman

    It is not a question of the courts being slanted. Judges and magistrates can only apply the law. Workers lose cases because their lawyers file their matters in the wrong place.

    Like

  5. Wily Coyote January 15, 2017 at 8:03 AM #

    @Caswell

    Are you saying Barbados lawyers are a bunch of highly educated non functioning JACKASSES, if you are I’m would have to agree.

    Like

  6. Bush Tea January 15, 2017 at 10:09 AM #

    @ Caswell
    What is this business of you coming up with all these non-contentious articles on BU?
    You get ‘saved and sanctified’ or wuh?

    ….this in not like the ‘old’ Caswell …
    …or is it that this IS the old Caswell…?
    LOL
    ha ha ha

    BTW
    …why don’t you invite your fellow columnist Jeff Broomes to publish on BU too…?
    Since you and Jeff now refuse to give the bushman any material to whack …perhaps you can have your old pal come over to oblige…. 🙂

    Like

  7. David January 15, 2017 at 10:44 AM #

    @Bush Tea

    You are of the view one has to be contentious to make a difference?

    Like

  8. Jeff Cumberbatch January 15, 2017 at 11:07 AM #

    Caswell, you realize of course that the presumption in section 38 (2)(b) is rebuttable and not absolute. It is now up to employers therefore to come up with sufficient evidence to rebut that presumption. it seems to me that Trimart failed in the Court of Appeal because its evidence in rebuttal was not cogent enough…

    Like

  9. Caswell Franklyn January 15, 2017 at 1:07 PM #

    Jeff

    I know that in life there are few things that are absolute that is why I was careful to caution, on more than one occasion, that persons should professional advice before proceeding. I was merely pointing out the avenues that are opened. Previously, NIS was not accepting such cases but now the TriMart case have given workers other options.

    Sent from my iPad

    Like

  10. Jeff Cumberbatch January 15, 2017 at 1:26 PM #

    Agreed, Caswell!

    Like

  11. pieceuhderockyeahright January 15, 2017 at 1:42 PM #

    De ole man like Caswell and he article(s)

    Franklyn Ian a man who know ting bout peeple but does doan want to break confidentialities.

    Mr Cumberbatch presented a comment which as usual made de ole man review the matter, to use his words and to proper a two step counter to “rebut” say a sexual harassment matter.

    “…It is now up to employers therefore to come up with sufficient evidence to rebut …”

    For those of he employees who are victims de ole man suggests that wunna get micro pen recorders and record when de boss cussing wunna ass or propositioning wunna to get some ass AND, HEREIS DE CLINCHER THAT MEETS BOTH CASWELL’s “long sufferation” and can aid in “encouraging de boss to settle, tek de voice recording and publish it pun sound cloud and Facebook, anonymously.

    Dese is tings dat meet de litmus test of “sufficient evidence to rebut…”

    Waitttttt, de ole man read Whu Mr Cumberbatch and Caswell say again and it would appear dat I ent unnerstan Whu dem was saying properly but I was done hit de button far said, “post Comment”

    Like

  12. pieceuhderockyeahright January 15, 2017 at 1:48 PM #

    De iPad does not like Bajan… corrections …”Franklyn is a man” and “…propose a two step counter…”

    Like

  13. Well Well & Consequences January 16, 2017 at 6:44 AM #

    Caswell…here is where the severance money to be paid to workers will be going…to repay the theft of money Thompson’s best friend and Fruendel’s esteemed friend Leroy Parris, politician’s and government minister’s relationships that are liabilities to the treasury….the people.

    http://www.nationnews.com/nationnews/news/92527/clico-surety

    Hpw unfair is this that the bajan taxpayers are the ones now saddled with paying off 56 million dollars in money stolen from CLICO policyholders, how much of this will Leroy Parris former CEO of CLICO, David Thompson’s bosom and Fruendel Stuart’s “esteemed friend the non leper” whom every politician and government minister wanted to be seen in photographs posing with post election 2008………..and Lawrence Duprey, former head of CLICO, pay back the bajan taxpayers for their theft of policyholders money…..to the treasury.

    This is the penalty taxpayers…the people of Barbados…… pay for politician’s and government minister’s special, personal and questionable relationships with thieves and crooks….unknown to taxpayers.

    Like

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