EDITORIAL - Teachable moments for employers

Although the defendant employer in last Friday’s decision by the Employment Rights Tribunal (ERT) was the National Conservation Commission, a statutory body, the judgement should provide some useful assistance to those employers in the local private sector who are contemplating the termination of the employment of significant numbers of their workforce for reasons of redundancy. 

 

In this context, at least two aspects of the decision should bear further analysis. For one, there is the issue of with whom should the employer carry out the statutory consultations, and second, there is that of the mode of selection of those employees to be made redundant. 

 

Before we discuss either in more detail however, it should be of interest to note that the Act requires in section 312 (6)(a) that these consultations should commence not later than six weeks before any of the dismissals are effected and that they must also be completed within a reasonable time. The local employers’ organisation had protested during the period of formulation of the Act that this period was highly likely to prove impracticable. In spite of these protests however, the provision remained and was finally enacted in its current form.  

 

As to the entity with which the consultations should be carried out, the Act stipulates this to be either the affected employees themselves or their representatives, most frequently the recognised majority union, as it is called elsewhere in the region. The fact that Barbados has no formal statutory recognition process will not avail the employer, which, for that reason, refuses to carry out the statutory consultations. It will be recalled that the NCC advanced this argument during the course of hearing of the matter. It rightly was unsuccessful.

 

Apart from the existing statutory alternative of consulting with the employees themselves, the ERT also had recourse to the concept of “implied recognition”, whereby an incidence of treating an organisation as representative of the workers for certain purposes may have the effect of that organisation becoming recognised and hence the one to be consulted.  

 

The substance of the mandated consultations is also provided for in the statute, a principal one being the proposed method of selecting the employees to be dismissed. In the recent decision under current discussion, it appears that the proposed method of selection was the traditional one of “last in, first out” [LIFO], reached through official representation rather than consultation since there was none. By failing to adhere to this method, the NCC was therefore in breach of the statute and the dismissals consequently unfair. 

 

Of course, the adoption of the “LIFO” mode is not the sole or an undisputable method of selection of employees for dismissal. Indeed, it has been categorised as a form of indirect age discrimination against younger employees who would, of necessity, have been among the more recently contracted employees and thus always among the first to be terminated. Those employers who seek to avoid this mode of selection should be mindful to 

document performance appraisals.

 

Nonetheless, in the absence of documented evidence from the employer, other modes of selection such as productivity, commitment, conduct and punctuality would be considered as far too inherently subjective, and 

arbitrary, and thus equally unfair.   

 

Perhaps as a sop to those employers who find it not reasonably practicable in all the circumstances to comply with any of the stipulated requirements, the ERA 2012 mandates there should be an immediate notification of the Chief Labour Officer while nevertheless attempting to comply with such steps as are indeed reasonably practicable.