EDITORIAL
We return once again to the topic of sexual harassment and the Employment Sexual Harassment [Prevention] Bill, not, as we wrongly stated last week, now merely awaiting proclamation to bring it into force as law, but which, in fact, is only now being debated by the Lower House after its introduction in the Upper House two weeks ago. This unusual, though not unheard of, event probably owes its occurrence to the fact that the Honourable Minister charged with the portfolio that bears primary responsibility for the enactment, that of Labour, is a member of the Upper Chamber. It is thus a Senate Bill as that term is understood in parliamentary practice.
Given the general consensus among Senate members as to the need for the legislation at this time, debate in the second week naturally turned to the enforcement of the individual right not to be sexually harassed in the workplace and to the provision made in the Bill for the resolution of any dispute in that regard. We are inclined to agree with Senator Verla DePeiza, attorney-at-law, as reported in The Barbados Advocate last Thursday that in its current form, the Bill allows for a drawn-out process especially where employers are recalcitrant in seeing to their end of that process. While conceding that the employer can “head off a major event” simply by dealing with a matter in a justiciable manner, she argues that equally “when you allow [it] to fester and the worker remains aggrieved…the worker will move on to the Chief Labour Officer and to the Tribunal and maybe to appeal”. Of course, such a scenario may eventuate only in cases where the complainant is not satisfied with the outcome of any of the preliminary processes. Indeed, the resolution process occupies a significant part of the Bill, ranging from Clause 7, which contemplates the lodging of the complaint with the employer to Clause 23, which provides for an appeal from a decision of the Tribunal to a Judge in Chambers.
While we support the view that the first line of recourse should be to the employer as the Bill indeed provides, we are less persuaded that the role of the Chief Labour Officer should be that of a mere conduit to the Employment Rights Tribunal. Indeed, we are minded to suggest that the decision of the Labour Office should rather be concerned with whether the matter is one fit to be heard by the Tribunal, thus acting as a filter for those matters that it considers undeserving of occupying the time of a Tribunal that, regrettably, has not to date apparently demonstrated the promptitude necessary for a body that was established to provide a relatively cheap, quick and effective remedy for unfairly dismissed employees.
It may be that the Labour Office is not considered sufficiently well furnished to decide such a critical matter, in which case, there might also be considered the right of the employee to take the employer directly before the Judge in Chambers if dissatisfied with the nature of the workplace resolution. In this connection, Senator DePeiza floats the idea of an Industrial Court, although we believe this proposal is likely to meet with fierce opposition from the labour organisations.
Nonetheless, there is a Latin maxim familiar to lawyers to the effect that “Interest republicae ut sit finis litium” [it is in the public interest that there should be an end to litigation]. As the Bill now stands, a complainant who believes that he or she has been sexually harassed may find that he or she has to go through far too many hoops to get justice. So too, a respondent convinced of his or her innocence.