The Caswell Franklyn Column – Employment Rights Gone Wrong

Caswell Franklyn, General Secretary of Unity Workers Union

While addressing the recent National Insurance awards ceremony, the Minister of Labour, Senator Byer-Suckhoo, complained that employers have been observing the letter of the law but not the spirit of the law, as they relate to the Employment Rights Act (ERA). From my vantage point, it appears that the statement has some validity but it is an admission from the Minister, who piloted the legislation through the House of Assembly, that the provisions of the act were not crafted with enough precision to enact Government’s intent and policy.

Prior to the coming into force of the ERA, it was generally accepted that employers had been using their dominant position to disadvantage workers, even in the face of what people thought to be a vibrant trade union movement. The provisions of the ERA was therefore meant to bring some equity to the employer/employee relationship. Unfortunately, that act has for the most part given workers the illusion of protection for two main reasons: (1) until February this year there were no criminal sanctions that could have been applied to an errant employer; and (2) the Employment Rights Tribunal has been completely ineffective in carrying out its mandate.

At face value, if you were to read the ERA, it would appear that the act has decisively skewed the employer/employee relationship in favour of the employee. That is merely the perception that employers and their representatives are peddling. From the perspective of someone who practices industrial relations on behalf of workers, the stark reality is that workers have been given new rights but accessing them have proven to be, to put it mildly, problematic.

The minister glibly referred to the problem as employers not living up to the spirit of the law. Maybe, that is her way of saying that the ERA has given new rights to workers but at the same time, it has provided too many obvious loopholes for employers to ignore those rights. Even when workers are given a mechanism to enforce their rights, in the form of the Employment Rights Tribunal, they have been suffering in a kind of purgatory waiting for salvation from the tribunal.

It is my understanding that in the four years of the tribunal’s existence, approximately 300 cases have been filed but so far less than 10 matters have been completed. As a result of this situation, employers have been allowed to take unfair advantage of workers because of the length of time it takes to get a matter heard. Please forgive me for using a personal experience to bear out my point.

A worker sought my assistance alleging that he was unfairly dismissed. After listening to his story, I called the employer and pointed out that in dismissing this worker, they had breached the mandatory provisions of the ERA. And in so doing, they were liable to pay compensation for unfair dismissal. The employer agreed and sent the worker a text message to say that he was entitled to compensation of $213,000.

The employer told me that I should contact their lawyer, a prominent queen’s counsel, who was instructed to prepare a release for the worker to sign when he received his cheque. When I called the QC, he told me in no uncertain terms that I would win the case if it ever get to a tribunal but that would take three years and he was sure that the worker could not survive without income for that period.

This unscrupulous queen’s counsel then advised an equally unscrupulous employer to rescind the offer and propose a settlement of $90,000 on a take it or leave it basis. Unfortunately, the lawyer had read the situation correctly. The worker had only recently refinanced his mortgage and was reluctantly forced to accept the revised offer.

Section 27 of the ERA also provides an avenue where employers abuse workers. Subsection (1) provides that an employee has the right not to be unfairly dismissed by his employer. But then at subsection (3) that right does not apply if the worker had not been continuously employed for a period of not less than one year. As a result, employers have been hiring workers and terminating their services after eleven months.

My suggestion to the Minister of Labour is to stop all of this long talk and get cracking on amendments to fix these two areas urgently.

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32 Comments on “The Caswell Franklyn Column – Employment Rights Gone Wrong”

  1. Ali Baba June 18, 2017 at 7:33 AM #

    WELL WELL WELL, SEE THIS SHIT THATS GOING ON IN THIS COUNTRY, IT GOING TO COME TO AH HALT ONE WAY OR ANOTHER….IN NEXT DOOR COUNTRIES, THESE SCUMBAGS SCRUFF OF THE EARTH BASTARDS, LAWYERS, EMPLOYERS, POLITICIANS, HEAD OF THE ERT AND SUCH DEGENERATIVE TYPES WOULD BE RUNNING FOR COVER. THESE INEPT MORONS UNCEREMONIOUSLY SEND HOME PEOPLE WILLY, NILLY , THEN TO WAIT YEARS ON AN ERT THAT TRAVELLING ON SLUG JUICE PACE……..YES DE GOV. EMPLOYER(S) LAWYER(S) KNOW FULL WELL THEY CAN’T HOLD OUT, THUS BY EXPLOITING THE RIGHTS OF THE WORKER……BY THE WAY 213,000.00– 90,000.00=123,000.00 I WONDER HOW MUCH THE QUEEN COUNSEL GOT OUT OF THAT, THAT SHOULD BE THE MAN’S RIGHTFUL MONIES. THAT CANNOT BE RIGHT AT ALL. OPPRESSION IS AH VERY SERIOUS THING, YOU ALL HEAR!!!!!!!!!!

    Like

  2. Tony Trotman June 18, 2017 at 7:41 AM #

    Mr Franklyn

    Are you saying that an employee should be able to claim unfair dismissal from the first day of their employment?

    Like

  3. Dompey June 18, 2017 at 7:49 AM #

    Caswell Franklyn

    You oughy to know that an employer has the right to terminate an employee employment, if he or she fails to meet that employer’s expections for the position offered within the probationary period.

    Like

  4. Dompey June 18, 2017 at 8:01 AM #

    Tony Trotman

    It has happened, but not within the first day of employment, but within the probationary period which for some companies, are a year to 90 days.

    Like

  5. Caswell Franklyn June 18, 2017 at 8:41 AM #

    I never thought that I would be saying this but thanks Dompey.

    Like

  6. David June 18, 2017 at 8:45 AM #

    @Caswell

    Are you sure those numbers are correct 10 out of 300 cases? What recourse is there for the worker?

    Like

  7. Bernard Codrington. June 18, 2017 at 9:16 AM #

    One cannot legislate morality nor equity. Despite all the care that a draughtman may put into the wording of a piece of legislation some smart lawyer can find a loop hole in it or use the weak links in the legal system to circumvent the moral intentions. If one really wants justice one does not go to the law court.

    By the way the above is not is not a recommendation for lawlessness.

    Like

  8. Tony Trotman June 18, 2017 at 10:02 AM #

    If employers are exploiting the one-year qualification rule for unfair dismissal – how long should it be? If the one-year qualification rule is, e.g. reduced to 90 days – why wouldn’t employers continue to exploit the rule by dismissing an employee when it’s 80 days?

    If an employer needs a probationary period (PP) of a year to determine whether an employee is performing satisfactorily – the purpose of the PP is very questionable.

    Like

  9. millertheanunnaki June 18, 2017 at 10:37 AM #

    @ Caswell Franklyn June 18, 2017 at 8:41 AM

    Is there a conflict of interest, either genuine or perceived, where the chair of the ERT is also a ‘regularly’ and highly paid legal advisor to the government and its statutory agencies?

    One must also bear in mind that famous dictum of natural justice:
    “Justice should not only be done, but it should be perceived that justice has been done”.

    Like

  10. David June 18, 2017 at 10:39 AM #

    You forgot to mention that he is the campaign manager of the Prime minister. What an incestuous pit!

    Like

  11. Kevin June 18, 2017 at 11:06 AM #

    The probationary period for most companies are 6 months. I worked with a ex-coworker who was dismissed two days shy of 6 months. He went to the labour office and FSC, Both told him that bringing a case would be difficult because they were dismissed within the probationary period. However a rep from the FSC did call to have a discussion with his former boss.

    Like

  12. David June 18, 2017 at 11:12 AM #

    The standard probationary period for most organizations is three months for senior appointments it often extends to six months.

    Like

  13. Caswell Franklyn June 18, 2017 at 11:55 AM #

    Miller

    The conflict of interest is there for all to see, except those who don’t want to see.

    Sent from my iPad

    Like

  14. Caswell Franklyn June 18, 2017 at 2:55 PM #

    Are you sure those numbers are correct 10 out of 300 cases? What recourse is there for the worker?

    David

    There are several options but the best one would be scrapping all these administrative tribunals and replace them with one full time body that would hear severance payment, NIS appeals, consumer complaints, FSC appeals and of course employment rights matters.

    Sent from my iPad

    >

    Like

  15. Fractured BLP June 18, 2017 at 3:32 PM #

    Caswell

    You are an incredible liar. No one would rely on you to assist after how you allowed the CPO to railroad Stanton while he was working at PAD.

    Shameful Caswell

    Like

  16. Bush Tea June 18, 2017 at 3:36 PM #

    The simple fact is that as long as we persist with this nonsense of an ’employer class’ and an ’employee class’ – which is really the same shiite as old fashioned SERFDOM (except instead of being worked ‘viet armes’ the modern slave owner used wages as his whip…) we will continue to have the issues of unfair exploitation.

    Bushie keeps telling Caswell that the ONLY solution is for so-called ‘workers’ to ALSO be part-OWNERS of their places of employment.

    Unions, if they had any vision, would long have created this situation had they INSISTED that annual not-transferable SHARES in the business become a RIGHT of all employees who contributed a full year of their life towards the growth of that business. Instead, they have been insisting on shiite bonuses that were easily recouped by the employers through inflation.

    Steupsss… Bushie hereby gives up like shiite…!!!

    Like

  17. Well Well & Consequences Observing Blogger June 18, 2017 at 3:48 PM #

    Dangerous Mia…does she even care about the employees who have worked for minimum wages for decades.

    https://www.barbadostoday.bb/2017/06/18/mottley-calls-on-leaders-to-be-respectful/

    This is why Mia Mottley can never be trusted, she insists on playing both sides against the middle.

    Her concern should be the over 70,000 black voters, most of whom are paid minimum wage for decades by the same parasitic business people, the same disenfranchised black voters whose votes she needs since there are not enough minority business people to elect her to parliament.

    Like

  18. David June 18, 2017 at 3:49 PM #

    This introduces the observation of how garrulous members of the government seem to be when dealing with civil society. The latest broadside is Jepter Ince and his broadside on the private sector. Doent this period we are battling calls for our leadership should to be encouraging cooperation by using a conciliatory approach?

    Like

  19. Dompey June 18, 2017 at 4:24 PM #

    It is a good idea for an employee to be a part owner of his place of employment given the experience of Enron? You ought also to be mindful of the fact that your financial- wellbeing, your paycheck, you benefits, and quite possibly your retirement saving is at the mercy of this sole place of employment. I don’t know about you, but in my humble judgment that seems like putting all your eggs in one basket because have your investment highly concentrated in a single stock rather than a diversified portfolio is analogous to certain aspects of Obama -Care.

    Like

  20. Vincent Haynes June 18, 2017 at 4:25 PM #

    David June 18, 2017 at 3:49 PM #

    The broadsides and lack of the conciliatory approach would suggest that they reaped sufficient benefits from the system and are no longer interested in another term overseeing a bony carcass.

    Like

  21. Well Well & Consequences Observing Blogger June 18, 2017 at 4:47 PM #

    The conciliatory tone Mia should have at this time is for  the NIS pensioners assuring them which of the 3 owners of the 4 Seasons scam will be repaying the 120 million dollars to the fund that the government ministers helped them raid and when will that 120 million will be repaid, with her as attorney for the 4 seasons scam making all arrangements back then.

    Short memories will ensure it happens again and again.

    Like

  22. Bajan Free Party/CUP Violet Beckles Plantation Deeds from 1926-2017 land tax bills and no Deeds,BLPand DLP Massive land Fruad and PONZ June 18, 2017 at 7:06 PM #

    Once you sit down with the DLP at the table to start you know you are dealing with crooks and liars. It’s a waste of time, But you then have proof of my words over and over again,

    Being part of 1199 Union and a Delegate, All things can be settled in less than 30 days, I know both sides of how things work and won’t work in Barbados,

    With proof and understanding, it will be done, You are just dealing with very bad people,

    Like

  23. Dompey June 19, 2017 at 3:59 AM #

    Violet Beckle, I have been a member of the 1199 for more than 3 decades as well, so you and I can teach Caswell Franklyn some important lessons of the past. However, I trust you’re talking about the healthcare union?

    Like

  24. Hal Austin June 19, 2017 at 4:32 AM #

    Dompey,

    Worker/directors should be a principle of corporate legislation in Barbados. But the so-called militant unions only know about wage demands. A good example of this is the sale of Banks to the Brazilians. Not a word from the unions. That too will lead to tears.

    Like

  25. Artax June 19, 2017 at 6:09 AM #

    I’m curious……. What role would the trade unions have played in facilitating or preventing “the sale of Banks to the Brazilians?

    Also, to describe the unions as “so called militant” is a bit harsh and unfair, especially taking into consideration the adversarial approach undertaken by both the public and private sectors as it relates to employee’s rights and the unions’ capacity to serve its members and the method in which they perform these duties have changed significantly over the years. As such, the unions are now more defensive in trying to protect their members from, for example, unfair dismissal and unscrupulous employers modifying contracts and procedural agreements.

    Like

  26. David June 19, 2017 at 6:18 AM #

    @Artax

    You will agree that the unions need to expand its narrative from the outmoded wage increase and move to being an entity of influence of capital by participating more?

    Like

  27. Hal Austin June 19, 2017 at 6:40 AM #

    Artax,
    They would have been in the boardroom listening to and participating in the discussions. Rather than be out peeping in.

    Like

  28. Artax June 19, 2017 at 7:21 AM #

    @ David

    Would this change in MO not require a change in legislation or ratification by the membership?

    @ Hal Austin

    Why?

    Like

  29. Dompey June 19, 2017 at 10:54 AM #

    The Trade union could have done very little to avert the move because it hasn’t that kind of an influence.

    Like

  30. Well Well & Consequences Observing Blogger June 20, 2017 at 4:24 AM #

    When will Cow and his 4 Seasons business partners pay back the 120 million dollars of NIS pension fund money they got with the help of Mia and this present government….a dead project.

    https://www.barbadostoday.bb/2017/06/19/out-of-order-4/

    When will Cow give  back the hundreds of millions he borrowed from the same pension fund with the help of government ministers.

    The money is not his or the ministers and parasites should not be allowed to borrow from taxpayers money or the pension fund to conduc their private businesses….that is what local, regional and international banks are for. ..borrowing for private business.

    Apparently Ciw believe he is entitled to the local population’s money while his interests are outside of Barbados.

    And what do the trade unions say about all of this when there is always some controversy surrounding the likes of Cow who treat his black employees like slaves and expect to be rewarded their tax dollars and pension fund money to keep his businesses going in return.

    The majority black population cannot be that docile, the greedy politicians yes, but time for the unions to protest the 6 or 7 minority parasites sense of entitlement to the people’s money,

    Like

  31. Hal Austin June 20, 2017 at 4:29 AM #

    Dompey,

    It is not a matter of changing the decision, but being in on the discussion, knowing first hand what the plans were. This can only be done by legislating for worker-directors. This is something the congress of trade unions should be campaigning for. The nonsense of companies being owned by shareholders is legal nonsense. The people who run companies are the executives. Company legislation was created in the 1920s, we are now in the 21st century.

    Like

  32. Retribution-things that make me go hum! June 25, 2017 at 3:55 PM #

    The NIS tribunal needs an overhaul!! How can an Employer’s attorney have a say on when cases are called? The lagging tactics are outdated – we know the play!

    These are issues the Minister should be looking into. Makes you wonder if something is passing under the tables. Bunch of wicked people!

    Like

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