A Guy’s View: NCC unfair dismissal case

 

The Employment Rights Tribunal recently delivered its decision in the much publicised case of the National Conservation Commission (NCC) workers who were made redundant. The tribunal found that those workers were unfairly dismissed.

 

The tribunal provided invaluable guidance for employers and workers’ representatives alike in terms of the procedure that should be followed when redundancies are contemplated. Looking at previous authority, the tribunal laid down the following markers: 

 

1. The employer must give as much warning as possible of impending redundancies in order to enable trade unions and employees to consider alternative solutions and seek alternate employment.

 

2. The employer should consult with unions as to the best means by which the desired result can be achieved with minimal hardship. The criteria for selection should be agreed with the union and applied in accordance with the criteria.

 

3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer should seek to establish criteria for selection which so far as possible do not depend solely upon the opinions of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience and length of service.

 

4. The employer should seek to ensure that the selection is made fairly in accordance with these criteria and consider any representations the unions may make as to selection.

 

5. The employer instead of dismissing the employee should seek to offer alternative employment.

 

These guidelines paint a clear picture of what was wrong about the action taken with respect to the NCC workers. The redundancy process must be open and embracing of the workers and their representatives. The employer is obligated to sit down with the workers’ representatives and look for alternative methods of achieving the employer’s goal. Redundancy must not only be a last resort. The employer is not entitled to reach that decision on his own and neither can he execute the process on his own. The workers representatives must be involved at every stage.

 

The selection of the persons who are to be made redundant must be a fair and objective process for each individual concerned, although many workers may be affected. The tribunal referred to Millet LJ where he said that:

“the question for the industrial tribunal which must be determined separately for each applicant, is whether the applicant was unfairly dismissed, not whether some other employee could have been fairly dismissed.”

 

The tribunal found that the statutory requirement of consultation was obligatory. Section 31 (6) (a) of the Employment Rights Act provides that consultation must commence at least six (6) weeks ahead of the date of termination of the selected employees. It also provides that the process must be completed within a reasonable time. In setting out these requirements, the Act makes consultation indispensable. 

 

In the NCC case, the General Manager thought that he was properly discharging his responsibilities by simply carrying out the mandate of the Government to cut the staff complement. It seems that he did not tick all the consultation boxes. In the end, the tribunal concluded that the NCC’s failure to consult with the workers or their union amounted to a breach of their right, provided by statute, not to be unfairly dismissed.

 

The tribunal acknowledged that there are circumstances in which the lack of consultation would not amount to unfair dismissal. There may be good reasons for the requirement of consultation not to be followed, but the employer must show what are those reasons.

 

The method of selecting persons who would be made redundant is one important aspect of the consultation process. The first in last out system was chosen. This was a simple method of selection, but it is one that would hardly be followed in a well-managed private business. Such an approach is simply not good for business. 

 

A person’s date of employment has no bearing on their competency. Some workers take short cuts in their jobs, spend hours surfing the Internet, are ill-disciplined, do not observe punctuality requirements, steal their employer’s resources, waste work materials, are lazy, and one could go on infinitum. First in last out potentially leaves such persons in place to further kill the business. 

 

The challenge for most Government departments is that they keep poor or no performance records. Supervisors, many of whom were on the same level as their subordinates at one time, are reluctant to keep notes on their charges. As a result, when there is cause for some assessment of the worker, there is no evidence which can be used as an objective record. And no written record, no likelihood of action. 

 

Written records should also be used as the basis for progressive decisions within the work place. Promotion should be based on the written record that is made of the worker’s performance. No written record should also mean no advancement.

 

Of course, this standard should be applied first to supervisors. It would be unfair to a worker for his or her advancement in the work place to be circumscribed by a delinquent supervisor. The progress of each worker should be linked to the reports of his supervisor, and the progress of a supervisor should be dependent on the quality of his or her reports on subordinates, among other things. 

 

Redundancy is an unwelcome reality which must be faced at intervals. When this happens, the employer should come to the table with adequate written records on all employees, and these records should form the basis of separations. Both employer and union should find this a more helpful approach than ridding a service of its better employees because they came to the organisation after someone else.

Barbados Advocate

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