The Caswell Franklyn Column – A Travesty Called the Employment Rights Tribunal

Next month will mark four years that the Employment Rights Act has been enforced as part of the Laws of Barbados. This piece of legislation took more than a decade to make it from first draft to passage in parliament, mainly because of half-hearted support from major unions and opposition from employers’ representatives.

The unions feared the prospects of having a tribunal that would be empowered to make binding decisions thereby diminishing the unions’ ability to bully their way in disputes. On the other hand, the employers treasured an environment where employees had few rights and they were prepared to do everything to delay implementation.

Despite opposition and delaying tactics, Government went ahead and passed the legislation which gave workers a new set of rights that have proven so far to be mostly elusive. It is taking too long for workers to have their matters adjudicated by the Employment Rights Tribunal (ERT) which leads to unnecessary hardship.

As far as I am aware, over 200 cases have been referred to the ERT but to date fewer than ten decisions have been handed down by the three panels that constitute the tribunal. The reasons for this unsavoury state of affairs are varied but stems from Government’s lack of commitment to provide adequate resources, including competent staff, to the Chief Labour Officer and the ERT.

The ERT has nine members and is divided into three panels each consisting of a chairman, who must be a lawyer, and two laymen; one nominated by the labour movement and the other nominated by the employers’ representative. At first blush, it would appear that three cases could be heard simultaneously but unfortunately, that is not the case since the secretariat is only equipped to service one hearing at a time.

When a case gets going before one of the panels, it is fraught with delay as a result of tactics of lawyers or the unavailability of the chairman. It would appear that the Government underestimated the number of cases that would have been coming before the ERT, since the burden of chairing the panels falls on lawyers who are already fully employed, whose service must compete with other engagements particularly High Court appearances that take priority. In my view nothing short of a full time ERT would suffice. Anything less would only serve to frustrate applicants and increase the final cost to employers through no fault of their own.

Even before a matter can reach the tribunal, the legislation requires the Chief Labour Officer to “use his best endeavours to achieve, by means of conciliation, a settlement of the matters raised by the complaint”. Section 42 of Employment Rights Act anticipates that this process would take a maximum of 42 days. However, for the first three years, Government failed to provide the already overburdened Labour Department with additional staff to handle the upsurge of complaints.

At the end of last year, Government finally appointed a number of labour officers but like everything else, the authorities managed to get that wrong as well. Paragraph 3 of the Employment and Recruitment Code of the Public Service states, in part:

“Every individual to be appointed to an office in the Public Service shall be selected on merit …”

The notes to the code go on to explain:

“Merit is to be interpreted so as to ensure that

(i) persons are not appointed to offices unless they are competent to perform the duties of those offices”.

Nonetheless, the authorities overlooked experienced temporary labour officers for permanent appointment, in favour of persons who now have to be trained, which actually guarantees that there would be further delays in the system.

The Employment Rights Act is a good idea that has gone awfully wrong. Workers have been given new rights on paper but it is well nigh impossible to access those rights in a timely manner. For example, I referred a matter, involving 23 workers from the National Housing Corporation, in 2014 and the conciliation process is still not completed so that the case can go on to the Employment Rights Tribunal.

From where I sit, it would appear that workers rights ceased being a priority for Government since the time of Grantley Adams.

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33 Comments on “The Caswell Franklyn Column – A Travesty Called the Employment Rights Tribunal”

  1. David March 12, 2017 at 4:40 AM #

    @Caswell

    You wrote:

    It would appear that the Government underestimated the number of cases that would have been coming before the ERT, since the burden of chairing the panels falls on lawyers who are already fully employed,

    Really? This cannot be the reason if a minimum level of due diligence was conducted with the labour office, unions and other stakeholders.

    Again BU must ask the hard questions. Why have the established unions not escalated this as a grievance against government in fairness to the aggrieved workers trapped in the system? What about the social partnership?

    Like

  2. Tony Trotman March 12, 2017 at 6:21 AM #

    The delays at the Employment Rights Tribunal (ERT) are a reflection of the court system in Barbados. It seems that the Government copied unfair dismissal laws from England without thinking about its practical implications, e.g. there are no laws that allow the ERT to make a costs order.

    Like

  3. Caswell Franklyn March 12, 2017 at 6:53 AM #

    David

    Your queries presupposes that there is someone in the Government or the Social Partnership who gives a damn about workers. It is all about the impression that these people want to create but there is no actual work done to match that impression.

    Dr. Esther Byer-Suckhoo piloted the Employment Rights Bill through the House of Assembly. Now that it is the law, it leaves no role for the Minister of Labour in industrial relations disputes. The Employment Rights Tribunal now has the power to settle these disputes but the Minister persists in her nonsense, pretending that she is a mediator, rather than let the tribunal that she created do its work. Again BWU and NUPW continue to refer matters to the Minister, knowing full well that there would be no positive result for the workers.

    This nonsense is a scam perpetrated on the workers by the Social Partnership and the Government but the workers must take some of the blame. If they really cared about themselves, Unity Workers Union would not still be struggling with 600 members.

    Like

  4. Caswell Franklyn March 12, 2017 at 6:58 AM #

    Tony

    I don’t agree. The Tribunal can award cost but I don’t think that they understand what they are really doing.

    Like

  5. Observing March 12, 2017 at 7:09 AM #

    @Caswell

    “The Employment Rights Act is a good idea that has gone awfully wrong”

    It is the biological brother of the Public Service Act. We should expect no different.

    imho the tribunal is doing exactly what it is supposed to do rather than what it is designed to do.

    Came across this link… looka life.

    https://barbadosunderground.wordpress.com/2015/01/07/stillborn-employee-rights-tribunal-when-the-rights-of-workers-and-the-interest-of-trade-unions-differ/

    Round and round the mulberry bush…….

    Observing

    Like

  6. Caswell Franklyn March 12, 2017 at 7:22 AM #

    @Observing

    You would get no argument from me on that score. I completely agree with you.

    Sent from my iPad

    Like

  7. Bush Tea March 12, 2017 at 7:37 AM #

    @ Caswell
    The ERT has nine members and is divided into three panels each consisting of a chairman, who must be a lawyer,
    +++++++++++++++++++++++++++++++++++++++++++++++++++++
    Good article. Factual and important as always.
    However all that you said could have been summed up in the single sentence you wrote above…

    If you want to ENSURE that something is F*****-up in Barbados, put a lawyer in charge. The lawyers ’bout here are the worst set of dishonest, selfish, lazy, incompetent, crooked and useless donkey-holes that BBE has ever allowed to inhabit this earth without having to wear tails.

    Everything else that you said was redundant.

    Like

  8. Tony Trotman March 12, 2017 at 7:40 AM #

    Caswell

    The ERT may make a costs order – but I’m not aware of any domestic laws (e.g. the Employment Rights Act 2012) that allows the ERT to do so. There is no comprehensive set of procedural rules for the ERT.

    Like

  9. Bush Tea March 12, 2017 at 7:41 AM #

    ….you may not have missed the fact that, even though these donkey-holes do not HAVE to wear ‘tails’, on any possible occasion, (despite the heat in Barbados)….. they still do.

    Does that tell you anything?

    Like

  10. Jeff Cumberbatch March 12, 2017 at 9:21 AM #

    @Caswell, one solution might be a clearing house for cases similar to ACAS in England, where a preliminary hearing of the issues might either narrow them down or make one party realize that it stands little chance of success in a full hearing. It does not prevent a party going ahead with their case, but such a move is likely to sound in costs especially if the party was advised that it had a weak case. Another thing is the excessive formality of the hearings as compared to those of other local tribunals. The essential idea of a tribunal is to ensure a quick cheap method for a claimant to obtain justice, not to mimic a High Court.

    The current situation is plainly unacceptable and denies workers the vindication of their employment rights since they bear the burden of proving any claimed infringement.

    Like

  11. David March 12, 2017 at 9:33 AM #

    @Jeff and Caswell

    Let us cut to the bone of the issue here. Who advised government on the implementation of the ERT? Was it designed to be efficient or to fail. How can anyone sensible believe that the issues concerning the working of the ERT now coming to the fore could not have been anticipated with some simple workflow analysis and QAT?

    Like

  12. Jeff Cumberbatch March 12, 2017 at 9:50 AM #

    @David, I think that the Tribunal was well-intentioned. It was perceived as a mode of the worker having a cheap and effective means of vindicating the rights newly created by the ERA 2012. A sort of compromise between adjudication the more expensive and dilatory courts and the resolution of disputes concerning dismissals through industrial action. I believe that both labour and capital were in favor of it.

    However, it seems that here sometimes, if things can go wrong, they will. As Caswell argued, the necessary supporting machinery was absent and one is begging for chaos when the Tribunal is staffed by a practicing full time lawyer whose schedules might conflict with those of counsel for the parties whose schedules might conflict with each other’s.

    A likely scenario-

    Chairman: How about nest week Monday?

    Counsel for the Claimant: No. Magistrates Court hearing

    Chairman: Tuesday?

    Counsel for the Employer: No. CCJ application

    Chairman: I am engaged on Wednesday and Thursday. Friday?

    Member of Tribunal: No. Annual General Meeting on that day

    Chairman: Week after then?

    Like

  13. David March 12, 2017 at 9:55 AM #

    With respect Jeff are you not cementing the BU point?

    You are expecting us to swallow that the chairman, minister,CLO et al could not have surmised that appointing practicing lawyers to key positions on the respective tribunals would not eventually lead to bottlenecks in the system?

    Like

  14. Jeff Cumberbatch March 12, 2017 at 10:31 AM #

    David, you would be surprised or, maybe, not, at what passes for informed thought sometimes in this jurisdiction.

    Like

  15. Caswell Franklyn March 12, 2017 at 10:33 AM #

    Jeff

    I completely agree with you on the clearinghouse idea and on the excessive formality of the hearings.

    I don’t believe in reinventing the wheel. When they were trying to form the second Employment Rights Tribunal, after eight of the original set resigned, there was a lot of talk about procedure and I suggested that they should observe you, Hilary Nelson and Monique Taitt in action at NIS Appeal and severance payment tribunals, rather than look overseas or mimic the courts. They would have been able to learn a thing or two.

    Sent from my iPad

    Like

  16. Vincent Haynes March 12, 2017 at 10:34 AM #

    David

    Did not Sleepy Smith suggest retired lawyers.judges,magistrates be used in night courts and other type of courts which could include the one that Caswel is talking about.

    Like

  17. Wily Coyote March 12, 2017 at 10:57 AM #

    Vincent Haynes March 12, 2017 at 10:34 AM #

    Lawyer named “SLEEPY” being proposed for NIGHT COURT, Huuummmmmmm.

    Fell asleep while I was writing, thought lost………

    Like

  18. Retribution-things that make me go hum! March 15, 2017 at 7:53 PM #

    Absolutely nothing in this country works – The tribunal is just another extension of the non working judicial system.

    Like

  19. Caswell Franklyn March 15, 2017 at 8:36 PM #

    Retribution

    Have you ever considered that nothing works in this country because the citizens of this country refuse to get up off their behinds and demand good service. We have a set of near-idiots sitting in parliament and ruining this country and the people are prepared to sit and suffer for five years and wait for elections before they sooner take action to rid this country of this scourge.

    Sent from my iPad

    Like

  20. Bush Tea March 15, 2017 at 11:42 PM #

    @ Retribution
    Absolutely nothing in this country works – The tribunal is just another extension of the non working judicial system.
    ++++++++++++++++++++++++++++++
    Do a check and you will find that the common denominator is the fact that we tend to place lawyers in influential positions in all critical areas.
    In those few instances where we don’t have lawyers, those selected immediately hire a lawyer to advise them on how to f*** up the operation.

    Modern lawyers are the idealogical descendants of the damned scribes and pharisees of the bible.

    Like

  21. David March 15, 2017 at 11:45 PM #

    @Caswell

    10,000 people marched on Saturday. It is unfortunate it has to happened around the cry from a political party. Our NGOs are failing us especially the two major unions.

    Like

  22. Bush Tea March 16, 2017 at 12:14 AM #

    @ David
    Our NGOs are failing us especially the two major unions.
    ++++++++++++++++++++++++++++++++++++++++++++++
    Steupsss
    Boss …. don’t tell Bushie that you are still on that optimistic binge where you keep hoping that the calvary will come riding over the hill …with flags flying, bugles blaring and with their righteous guns blazing….
    You watched too many damn Westerns skippa….

    Don’t you get it…??!!
    It is not like the politicians are a bunch of crooked, incompetent, bribe-taking brass bowls and we simply need to rally the ‘good guys’ and kick their tails out of town…. like John Wayne..
    The ‘good guys’ are ALSO a bunch of Bad-word, Bajan, Brass-Bowls … (BBBBs)

    For the most part, they are EXACTLY like the damn politicians, just stealing smaller amounts (due to their limited access to the trough and the smaller scale bribe offers they can get).
    They are focused on BMWs, high life, ‘benefits’, …. and on remaining in office.

    …except of course for Caswell – who is a bowl of another type ….with much needed characteristics …. But he has chosen to hide his candle under a little shiite bush called ‘Unity’ instead of blazing a massive BUP flame…

    Long and short of it …
    The shit is in the fan….
    Only the splatter now awaits.

    Like

  23. David March 16, 2017 at 12:18 AM #

    @Bushiw

    Did you not spot Toni Moore and her husband marching on Saturday?

    Akanni McDoawall and Beckles from the NUPW as well.

    A little ironic.

    Like

  24. Caswell Franklyn March 16, 2017 at 12:24 AM #

    David

    The two major unions have allowed themselves to be compromised by politicians to the extent that they have been rendered useless playthings of the political parties.

    Sent from my iPad

    Like

  25. Bush Tea March 16, 2017 at 12:35 AM #

    WAIT!!
    Caswell you don’t sleep either?
    Wunna fellas like wunna got worries yuh…
    Better get lots of sleep now, …cause there are no guarantees about the future…

    Toni Moore and Akanni are followers …who have found themselves in front of two brass bowl groups…
    Leaders stand out from their teens….
    They establish track records of leadership success.
    Anytime you see a fellow suddenly appear as a big-time ‘leader’ you can bet 100 to 1 that you have a half blind man in blind man land…… Froon is a case in point….who will FAIL.

    Then we would have a man who spent DECADES creating a governance culture in Credit Unions – the only successful shiite that black Bajans really have…. and he REFUSED to take the next logical steps….BUP!!!
    Steupsss
    Go long sleep do…
    Bushie going…

    Like

  26. David March 16, 2017 at 12:47 AM #

    @Bushie

    Caswell is correct, these guys have tarnished their reputations by shamelessly exposing their allegiance to the BLP.

    Like

  27. Caswell Franklyn March 16, 2017 at 12:56 AM #

    Bushie

    I can’t sleep when everybody else is sleeping: somebody has to keep watch. Mind you, I plan to go to sleep when Freundel wakes up but that doesn’t seem to be happening anytime soon.

    Sent from my iPad

    Like

  28. Bush Tea March 16, 2017 at 8:20 AM #

    LOL @ Caswell
    Ha ha ha ha
    Boss, you does talk even more shiite than Bushie….

    Like

  29. David March 19, 2017 at 9:13 AM #

    Caswell

    Any comment on the front page Sunday Sun story?

    http://www.nationnews.com/nationnews/news/94741/civil-service-unease

    Like

  30. Caswell Franklyn March 19, 2017 at 9:45 AM #

    David

    I am presently reviewed the document and in many instances the qualifications seem to be catering to specific persons. In one case that has come to my attention, the qualifications for a specific post was changed to exclude a young lady who has children from an Opposition legislator.

    Sent from my iPad

    Like

  31. David March 19, 2017 at 9:51 AM #

    @Caswell

    While you are at it you should review another article titled “Unearned pay a concern” in the same paper. It seems unfathomable that workers who are unfit to do the job cannot be severed.

    Like

  32. Caswell Franklyn March 19, 2017 at 9:56 AM #

    David

    I have not read the newspaper as yet but your comment begs the response: it seems unfathomable that ministers of government and speakers of the House who are unfit to do the job cannot be severed.

    Sent from my iPad

    Like

  33. David March 19, 2017 at 10:05 AM #

    @Caswell

    Surely you are not suggesting that the terms and conditions of employment for MPs and workers at statutory corporations is the same? The people will deal with MPs very soon.

    Like

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