ERT has no fixed place of abode, says chairman

WHILE several cases have been completed by the Employment Rights Tribunal (ERT), work is being hampered by a lack of staff and the absence of a physical space for the ERT to call home.

This was revealed by Chairman Christopher Blackman who spoke to the media briefly after the adjournment of a wrongful dismissal case Monday afternoon.

Noting that the COVID-19 pandemic knocked the work of the panel off course for approximately two months, he said this was not the only challenge facing the ERT. He noted however that there were some positives.

Blackman revealed that the work of the ERT has seen the Barbados Employers’ Confederation use principles laid down in other cases, with one case netting $100 000 in favour of the employee. “Cases have been settled based on decisions we have made and we have made guidance for the future.”

Additionally, he noted that cases were also settled at the level of case management conferences (CMCs).

“I am satisfied that the Tribunal as constituted really now is working assiduously and to cut down the backlog. The fact that we have not done more is for reasons not from our making. We had cases where twice for the last couple of weeks, where I cannot adjourn because the room wasn’t available.”

Justice Blackman mused that he recently told the Minister with responsibility for the ERT that he is now a vagrant with no place to call his own.

“This Tribunal has been in place for several years and has made no proper provision for its workers. No fixed place of abode. They gave us a little room upstairs where we could sit around a table which now is too small because of COVID, but generally speaking we have none.”

He noted that the individuals assigned to assist the Tribunal are not enough to service the three tribunals and specifically not with additional pieces of legislation implemented such as Sexual Harrassment and Discrimination. “It came into force in September. I told the Minister – but Minister you realise that this thing was enforced in September and we have no means of enforcing it. Read the Discrimination Act, if we make certain decisions, and impose – we will have the authority to impose fines or lock up people. I said I have no staff to do these things. They push these things through without consulting.”

Blackman also made the point that while the panel consists of industrial relations and human resources professionals, the Act will be speaking to matters outside of the skill-set and would require a strong technical person.

“In terms of what constitutes discrimination in terms of gender, age, disability...It seems to me that the Act needs to provide for people from the disabled community or otherwise to be put onto the panel to bring their perspective.”

He said this would be critical to assist in the framing of decisions, taking into account the varying dynamics.

“It really troubles me that the government will bring in these things without giving you the full courtesy of a consultation to ask you what you think.”

However, Blackman noted that the ERT has been able to finish a number of cases, with more than 20 written judgements, and some of the cases having gone to the Court of Appeal.

“If there is a backlog it is us not having the staff to provide the material to the Court of Appeal. Not that we aren’t doing the work, but we don’t have the staff resources to get the material out to the Court of Appeal.”

As it relates to managing through the COVID period, he noted that in addition to the setback by about two months, the CMCs which would have been held in smaller rooms took place in the bigger space to facilitate social distancing, which made getting access to the room regularly used by the ERT more difficult.

As it relates to carrying out hearings by Zoom, Blackman said, “You need to see the witness.”

“...If somebody is there... You don’t want people to pass papers to them. You have to see the witness. You have to see the person’s demeanour. So that’s why the jury trials have to continue, so the jury could see the person,” he said. (JH)