Caribbean Employment & Labour Law Textbook

COMMONWEALTH CARIBBEAN EMPLOYMENT AND LABOUR LAW This comprehensive text provides authoritative coverage of a wide range of employment and labour law issues affecting the Commonwealth Caribbean. It offers comparative analysis of employment and labour law in the region with particular reference to Antigua and Barbuda, Barbados, St Lucia, Jamaica and Trinidad and Tobago. Against the backdrop of the umbilical link to English common law and the persuasive precedent of other Commonwealth jurisdictions, the authors highlight the increasing importance of this evolving area of law and the role it plays in developing Commonwealth Caribbean jurisprudence. Key topics they explore include: • • • • • Employment status and terms of the employment contract; Redundancy, retrenchment and severance; Wrongful and unfair dismissal; Industrial action; Emerging issues such as internet usage, workplace monitoring, whistleblowing, data protection and sexual harassment. Commonwealth Caribbean Employment and Labour Law is an essential resource for students reading Employment, Industrial Relations and Dismissal Law courses and an invaluable reference guide for human resource, industrial relations and legal practitioners in the Caribbean. Natalie Corthésy is an attorney-at-law, a former Legal Officer in the Ministry of Labour and Social Security Jamaica, and a Lecturer in the Faculty of Law at the University of the West Indies, Mona, Jamaica. She holds an LLM in Intellectual Property Law (UCL). She lectures on Tort, Intellectual Property and Industrial Relations Law. Carla-Anne Harris-Roper is an attorney-at-law and the Director, Legal Services Division, Ministry of Labour and Social Security, Jamaica. She holds an LLM in Employment Law (East Anglia). She lectures on Labour and Employment Law in the Mona School of Business and Management, Faculty of Social Sciences, University of the West Indies, Mona, Jamaica. COMMONWEALTH CARIBBEAN LAW SERIES The Commonwealth Caribbean Law Series is the only series of law books that covers the jurisdiction of the English speaking Caribbean nations. The titles in the series were first published in 1995 to acclaim from academics, practitioners and the judiciary in the region. Several editions followed, and they have now become essential reading for those learning and practising Caribbean law. This must have series is required holdings for any law library specialising in Caribbean legal information. Titles in this series include: Alternative Dispute Resolution Albert Fiadjoe Commonwealth Caribbean Business Law 2/e Rajendra Ramlogan and Natalie Persadie Commonwealth Caribbean Company Law Andrew Burgess Commonwealth Caribbean Civil Procedure 3/e Gilbert Kodilinye and Vanessa Kodilinye Commonwealth Caribbean Constitutional Law Sir Fred Phillips Commonwealth Caribbean Land Law Sampson Owusu Commonwealth Caribbean Law and Legal Systems 2/e Rose-Marie Belle Antoine Commonwealth Caribbean Property Law 3/e Gilbert Kodilinye Commonwealth Caribbean Public Law 3/e Albert Fiadjoe Commonwealth Caribbean Tort Law 4/e Gilbert Kodilinye Commonwealth Caribbean Law of Trusts 3/e Gilbert Kodilinye and Trevor Carmichael Judicial Review in the Commonwealth Caribbean Rajendra Ramlogan Commonwealth Caribbean Administrative Law Eddy Ventose Commonwealth Caribbean Contract Law Gilbert Kodilinye and Maria Kodilinye Commonwealth Caribbean Practice and Procedure 4/e Dana S. Seetahal Commonwealth Caribbean Employment and Labour Law Natalie Corthésy and Carla–Anne Harris-Roper Commonwealth Caribbean Tort Law 5/e Gilbert Kodilinye Commonwealth Caribbean Property Law 4/e Gilbert Kodilinye Forthcoming titles: Commonwealth Caribbean Business Law 3/e Natalie Persadie and Rajendra Ramlogan Commonwealth Caribbean Land Law 2/e Sampson Owusu Commonwealth Caribbean Intellectual Property Law Eddy Ventose Commonwealth Caribbean Civil Procedure 4/e Gilbert Kodilinye and Vanessa Kodilinye This page intentionally left blank COMMONWEALTH CARIBBEAN EMPLOYMENT AND LABOUR LAW Natalie Corthésy and Carla-Anne Harris-Roper Routledge Taylor & Francis Group LONDON AND NEW YORK First published 2014 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2014 Natalie Corthésy & Carla-Anne Harris-Roper The right of Natalie Corthésy & Carla-Anne Harris-Roper to be identified as authors of this work have been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Corthésy, Natalie, author. Commonwealth Caribbean employment and labour law / Natalie Corthésy, Carla-Anne Harris-Roper. pages cm. – (Commonwealth Caribbean Law Series) Includes bibliographical references and index. ISBN 978-0-415-63033-7 (hardback) – ISBN 978-0-415-62252-3 (pbk) – ISBN 978-1-315-78018-4 (ebk) 1. Labor laws and legislation–Carribean area. I. Harris-Roper, Carla-Anne, author. II. Title. KGJ432.C67 2014 344.72901’09171241–dc23 2013050063 ISBN: 978-0-415-63033-7 (hbk) ISBN: 978-0-415-62252-3 (pbk) ISBN: 978-1-315-78018-4 (ebk) Typeset in Baskerville by Cenveo Publisher Services CONTENTS Preface Acknowledgments Table of Cases Table of Statutes List of Tables List of Abbreviations 1 INTRODUCTION AND BACKGROUND TO COMMONWEALTH CARIBBEAN EMPLOYMENT AND LABOUR LAW xv xvi xvii xxvii xxxix xl 1 INTRODUCTION 1 RATIONALE AND ORGANISATION OF THIS BOOK 2 HISTORICAL UNDERPINNINGS 4 CONTEMPORARY ISSUES AND FUTURE DEVELOPMENTS 12 2 SOURCES AND INSTITUTIONS OF EMPLOYMENT AND LABOUR LAW 17 OVERVIEW 17 FORMAL SOURCES OF LAW 18 Common law Legislation Codes of Practice Regional (CARICOM) instruments International law The International Labour Organization, its Conventions, Recommendations and Codes of Practice INFORMAL/VOLUNTARY SOURCES Custom and practice Collective labour agreements Work rules EMPLOYMENT AND LABOUR LAW INSTITUTIONS Courts Inferior courts Superior courts High/Supreme Courts Courts of Appeal Judicial Committee of the Privy Council Caribbean Court of Justice Industrial courts and tribunals 18 20 26 28 31 32 37 37 39 41 42 42 43 44 44 46 47 49 55 viii Contents GOVERNMENT ADMINISTRATIVE INSTITUTIONS Ministries of Labour and Labour Commissioners Hearing officers Decisional officers Union recognition mechanisms Trade union registration bodies ILO SUB-REGIONAL OFFICE FOR THE CARIBBEAN 3 CONTRACTS OF EMPLOYMENT PARTIES TO THE CONTRACT OF EMPLOYMENT Who is an employee or worker? Who is an employer? Other relationships THE NATURE OF THE CONTRACT OF EMPLOYMENT What is a contract of service? What is a contract for services? TESTS USED BY TRIBUNALS AND COURTS TO DETERMINE WHETHER AN EMPLOYMENT RELATIONSHIP EXISTS The control test The organisation or integration test The mixed/multiple test The economic reality test The mutual obligations test 80 80 81 81 81 86 87 88 88 88 91 91 93 93 95 96 96 96 97 99 100 INTERNATIONAL LABOUR INSTRUMENTS AND IMPACT ON NATIONAL LEGISLATIVE FRAMEWORK UNDERPINNING THE EMPLOYMENT RELATIONSHIP 102 THE LEGALITY OF THE EMPLOYMENT CONTRACT AND ITS ENFORCEMENT 106 4 TERMS OF THE EMPLOYMENT CONTRACT AND CONDITIONS OF EMPLOYMENT 109 SOURCES OF EMPLOYMENT CONTRACT TERMS 109 EXPRESS TERMS IN THE BODY OF THE CONTRACT 109 EXPRESS TERMS MANDATED BY LEGISLATION 110 EXPRESS TERMS IMPLIED BY LEGISLATION 115 Wages Vacation leave and sick leave Maternity leave Compensation for workplace injuries Notice pay 115 116 118 118 119 Contents ix EXPRESS TERMS INCORPORATED BY THE COLLECTIVE AGREEMENT 120 EXPRESS TERMS INCLUDED BY CUSTOM 122 TERMS IMPLIED BY THE COURTS 123 IMPLIED TERMS IN RESPECT OF THE EMPLOYER 124 The duty to pay wages The duty to provide work The duty to provide a safe and healthy work environment The duty to maintain trust and confidence IMPLIED TERMS IN RESPECT OF THE EMPLOYEE Duty to obey reasonable and lawful orders Duty of cooperation and mobility clauses Duty to exercise reasonable care and skill Duty of fidelity, non-competition, non-solicitation and trade secrets 5 DISMISSAL AT COMMON LAW AND DISCHARGE OF THE EMPLOYMENT CONTRACT 124 125 125 127 130 130 131 131 132 134 OVERVIEW 134 WRONGFUL DISMISSAL 134 Notice at common law Statutory periods of notice Payment in lieu of notice (PILON) Remedies and compensation for wrongful dismissal Distinction between wrongful dismissal and unfair dismissal The peculiar case of Barbados 135 137 142 144 154 156 SUMMARY DISMISSAL 160 CONSTRUCTIVE DISMISSAL 166 Statutory definition of constructive dismissal 168 RESIGNATION 169 MUTUAL CONSENT OF THE PARTIES 170 FRUSTRATION OF CONTRACT 170 Imprisonment Sickness DEATH OF EMPLOYER OR EMPLOYEE 6 STATUTORY DISMISSAL – REDUNDANCY, SEVERANCE AND UNFAIR DISMISSAL OVERVIEW 171 171 172 174 174 x Contents INTERNATIONAL CONSIDERATIONS 174 REDUNDANCY, RETRENCHMENTS AND SEVERANCE 177 Concept of redundancy – history of the entitlement Difference between severance and redundancy Severance entitlements Unemployment insurance/benefit Defining redundancy Qualification for redundancy What is dismissal for the purpose of redundancy? Redundancy procedure, consultation and governmental reporting requirements Exception and exclusions from redundancy Lay off and short time working Death of the employer and insolvency Remedies and compensation for redundancy When should a claim for redundancy payment be made? When should payment of redundancy entitlement be made? Source of compensation Intersection of redundancy and unfair dismissal 177 179 179 182 182 189 192 UNFAIR/UNJUSTIFIABLE DISMISSAL Historical development of unfair dismissal concept Defining unfair dismissal Specific statutory provisions regarding unfair dismissal rights What is dismissal? Reasons for dismissal Dismissal procedures/procedural fairness Automatically fair dismissals Automatically unfair dismissals Potentially (prima facie) fair dismissals Unfair dismissal by judicial construction based in statute Remedies available on finding of unfair dismissal 7 LABOUR LAW 193 197 202 206 207 212 213 213 215 215 215 217 218 219 220 227 229 230 232 243 252 261 THE EMERGENCE OF TRADE UNIONS IN THE COMMONWEALTH CARIBBEAN 261 THE CONSTITUTIONAL RIGHT TO TRADE UNION MEMBERSHIP 263 Freedom of association The ILO Conventions THE LEGISLATIVE FRAMEWORK FOR TRADE UNION MEMBERSHIP AND OPERATION The main objectives and functions of a trade union 263 266 267 267 Contents Why do workers join trade unions? Legislative foundation of trade unions A Jamaican case study – Trade Union Act Comparison with other CARICOM legislative provisions COLLECTIVE BARGAINING xi 268 269 270 278 285 Definition The purpose of collective bargaining Establishing the collective bargaining relationship A Jamaican case study Collective agreements 285 286 286 287 292 LEGALITY AND ENFORCEMENT OF COLLECTIVE LABOUR AGREEMENTS 294 8 INDUSTRIAL ACTION 296 OVERVIEW 296 INTERNATIONAL PERSPECTIVES 296 COMMON LAW, INDUSTRIAL ACTION AND STATUTORY INTERVENTIONS 299 Civil claims actionable against unions and their personnel Legislative interventions Claims against individual employees arising from industrial action Legislative intervention (individual employees) 299 303 305 306 STATUTORY REGULATION OF INDUSTRIAL ACTION 309 TYPES OF INDUSTRIAL ACTION 310 Lock out Strike Sick-out Go slow Work to rule Blacking Picketing 311 313 317 319 320 321 321 TRADE/INDUSTRIAL DISPUTES 325 STATUTORY DISPUTE RESOLUTION PROCEDURES 327 Statutory dispute resolution regime in Jamaica Statutory dispute resolution in the Bahamas Statutory dispute resolution in Trinidad and Tobago 328 330 333 ESSENTIAL SERVICES DISPUTES 336 xii Contents 9 EMERGING EMPLOYMENT AND LABOUR LAW ISSUES IN THE COMMONWEALTH CARIBBEAN 340 THE POLEMIC 340 WORKER PRIVACY AND THE PUBLIC INTEREST VERSUS EMPLOYER RIGHTS 341 International considerations The common law DATA PROTECTION Fingerprinting and other biometric data INTERNET USAGE/MONITORING AND OTHER FORMS OF WORKPLACE SURVEILLANCE 341 343 345 347 349 Social media Telephone monitoring CCTV Personal searches 352 353 354 355 POLYGRAPH TESTING 355 WHISTLEBLOWING 359 WORKPLACE VIOLENCE 365 Bullying Sexual harassment 10 DIGEST OF COMMONWEALTH CARIBBEAN CASES 366 368 375 THE CONSTITUTIONAL RIGHT OF FREEDOM OF ASSOCIATION 375 INDUSTRIAL DISPUTES 376 BARGAINING RIGHTS 378 THE LABOUR RELATIONS CODE 378 COLLECTIVE AGREEMENTS 378 INDUSTRIAL ACTION 380 WORKPLACE RELATIONS 381 DISMISSAL 381 THE CONTRACT OF EMPLOYMENT 386 11 EXTRACTS OF COMMONWEALTH CARIBBEAN LEGISLATION 389 DEFINITION OF WORKER 389 Antigua and Barbuda 389 Contents xiii Grenada Jamaica St. Lucia Trinidad and Tobago PARTICULARS OF THE EMPLOYMENT CONTRACT 389 389 390 390 391 Antigua and Barbuda Barbados Belize Dominica St. Lucia UNFAIR DISMISSAL 391 391 392 393 394 395 Antigua and Barbuda Barbados St. Lucia Jamaica Trinidad and Tobago REDUNDANCY 395 396 398 398 399 399 Antigua and Barbuda Barbados Jamaica St. Lucia Trinidad and Tobago COLLECTIVE LABOUR AGREEMENTS 399 400 401 403 404 405 Antigua and Barbuda The Bahamas Guyana St. Lucia Trinidad and Tobago INDUSTRIAL ACTION/RIGHT TO STRIKE 405 406 407 409 409 411 Antigua and Barbuda The Bahamas St Lucia Jamaica Trinidad and Tobago SEXUAL HARASSMENT 411 415 420 423 427 433 The Bahamas Belize St. Lucia British Virgin Islands Guyana 433 434 436 437 437 xiv Contents FINGERPRINTING AND POLYGRAPH TESTING 438 The Bahamas HIV IN THE WORKPLACE 438 438 St. Lucia Belize British Virgin Islands Montserrat 438 439 440 440 References Index 441 455 PREFACE This book is designed to provide up-to-date and relevant legal principles regarding a wide range of employment and labour law issues that affect the Commonwealth Caribbean. Although primarily an academic text, it will also provide the legal practitioner with insight into the framework in which the legal principles evolved, and set out the parameters of essential rules that constitute the bedrock of current employment and labour law practice. Our intention is to sensitise the reader to the increasing importance of this evolving area of law and the role it plays in developing the jurisprudence of the region as it touches and concerns a large segment of the populace: the workforce, their representatives and those who employ labour. The desire is to succinctly introduce major areas of employment and labour law, and explain in detail, where necessary, the current legal position in the countries being reviewed. The book will thereafter explore how the law operates within the legal systems of the Commonwealth Caribbean, taking into account the umbilical link to British jurisprudence and the impact of other internationally recognised norms on regional growth and development. Emerging employment and labour law issues, as well as recommendations for reform, will also be discussed. There is currently no parallel text on this subject. This book therefore represents an important resource that will redound to the benefit of all the jurisdictions within the Commonwealth Caribbean. We have sought to set out the law as at 16 December 2013. Natalie Corthésy and Carla-Anne Harris-Roper, Kingston, Jamaica ACKNOWLEDGMENTS We are indebted to the following people and institutions for their invaluable assistance with compiling material and accessing important resources critical to completing this book: • • • • • • • • • Dr Derrick McKoy, Dean, Faculty of Law, UWI Mona Jamaica; Mr Alvin McIntosh, Permanent Secretary, Ministry of Labour and Social Security, Jamaica; The Legal Division of the Ministry of Labour and Social Security, Jamaica; Mr Maurice Bailey, Director of Legal Reform, Jamaica; Dr Christopher Malcolm, Attorney General, British Virgin Islands; Mr Phillip Pilgrim, former President, Antigua and Barbuda Industrial Court; Mr Noel Inniss, Registrar, Trinidad and Tobago Industrial Court; The Librarians and staff of the UWI Mona Law Library, UWI Cave Hill Law Library, the Norman Manley Law School Library, and the Trinidad and Tobago Industrial Court Library; and Our Research Assistants Messrs Jason Haynes and Ashford Meikle. We are grateful to all the Governments in the region who gave their kind permission for the reproduction of extracts of their respective legislations. Finally, we offer our heartfelt thanks to our families – Paul, Timothy and Nathan Roper; Lucas, Theo and Max Corthésy – for enduring our absences throughout the process and their unwavering love and support. We especially give thanks to God for providing us with the insight and the strength necessary to complete this book. TABLE OF CASES Addis v Gramophone Co. Ltd. [1909] AC 488 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120, 147, 150, 152, 153 Agricultural Development Bank v Public Services Association Civil Appeal No. 118/80 delivered December 4, 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Airport Airline and Allied Workers’ Union et al v Bahamasair Holdings Limited Suit No. 153, 154 & 155 of 1987 Equity Side SC (unreported) delivered February 5, 1988 . . . . . . . . . . . . . . . . . . .311, 331 Airport Airline and Allied Workers Union v Harding Suit No. 33 of 2007 (unreported) delivered January 26, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Airports Authority of Trinidad and Tobago v Estate Police Association TT 2003 (CA 17) No. 13 of 2003 (unreported) delivered March 12, 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Albert v Alstons Building Enterprises Ltd Civil Appeal No. 37 of 2000 (unreported) delivered November 13, 2001 [TT 2001 CA 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Alcock v Chief Constable of Yorkshire [1992] 1 AC 310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 Allied Protection Limited v Joseph McLean IDT 26/2012 (unreported) delivered April 22, 2013 . . . . . . . . . . 247 All Island Sugar and General Workers' Trade Union v Caroni TT 1985 (CA 82) No. 45 of 1985 (unreported) delivered December 12, 1985. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 All Trinidad Sugar and General Workers’ Trade Union v Aqui Chung Limited TD 26 of 2007 (unreported) delivered March 15, 2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374 All Trinidad Sugar and General Workers’ Trade Union v Carib International Company Limited TD 42 of 1993 (unreported) delivered February 29, 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 All Trinidad Sugar and General Workers' Trade Union v Caroni (1975) Limited Civil Appeal 114 of 2000 (unreported) delivered November 27, 2000. [TT 2000 CA 42] . . . . . . . . . . . . . . . . . . . . 63, 251 All Trinidad Sugar and General Workers’ Trade Union v Rio Claro Brickwork Limited TD 142 of 1983 (unreported) delivered January 16, 1987 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 Alstons Building Enterprises Ltd v Oilfields Workers’ Trade Union TD 69 of 1975 (unreported) delivered June 16, 1976 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334 Amalgamated Workers Union and Chief Personnel Officer Trade Dispute 159 of 1987 (unreported) delivered December 16, 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Amalgamated Workers’ Union v Bhim Roopnarine (Trading as Bhim Roopnarine Service Station) TD 30 and 31 of 1995 (unreported) delivered July 25, 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 Ambo et al. v West Indies Aggregates Limited Dominica High Court No. 141 of 2002 (unreported) delivered December 17, 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Anisminic Ltd. v Foreign Compensation Commission and another (1969) 1 All ER 208 . . . . . . . . . . . . . . . . . . . . . . 85 Antigua Public Utilities Authority v Barriero [1994] AG 1994 CA 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114, 383 Antigua Village Condo Corporation v Jennifer Watt Civil Appeal No. 6 of 1992. . . . . . . . . . . . . . . . . 94, 183, 215, 240, 252, 382 Aparau v Iceland Frozen Foods Plc [1996] IRLR 119 EAT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Application by Guyana Telephone and Telegraph Company Limited, Re Suit No. 4491 of 1995, decided on January 13, 1997 (Unreported) Guyana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Aston Fitten v. Michael Black Limited and Ken Henry (1987) 24 JLR 252 . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 119 Attorney General of Barbados v Joseph and Boyce (2006) 69 WIR 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Attorney General of Trinidad and Tobago v Adams et al. and Trinidad and Tobago Postmen's Union TT High Court Suit No. 1916 of 1983 delivered July 10, 1984 (unreported) . . . . . . . . . . . . . . . . . . . . 85 Attorney General v Panday and Vanguard Publishing (1976) 15 WIR 172 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Attorney General v Mohamed Alli and Others (1987) 41 WIR 176 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 265 Auguste v Attorney General Civil Suit No. 713 of 1999, LC 1999 HC 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Ava Chambers v Holiday Inn SunSpree Resorts Suit No. CLC 2005 0f 2002 (unreported) delivered February 1, 2007 (Jamaica SC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Aviation Communication and Allied Workers Union v Registration, Recognition and Certification Board TT Court of Appeal Civil Appeal No. 35 of 1995 delivered October 13, 1998 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 xviii Table of Cases Bahamas Hotel Catering and Allied Workers Union et al. v Registrar of Trade Unions et al. Suit No. PUB/JRV No. 16 of 2009 (unreported) delivered July 30, 2009 . . . . . . . . . . . . . . . . . . . . . . 28 Bank and General Workers Union v Public Service Association of Trinidad and Tobago TD No. 15 of 2000 (unreported) delivered on April 27, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Bank and General Workers’ Union v Trinidad Express Newspapers Limited TD 3 of 1997 (unreported) delivered April 28, 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 Bank and General Workers Union v Works Credit Union Cooperative Society Limited TT IC IRO No. 16 of 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Bank and General Workers Union v Home Mortgage Bank TD No. 140 of 1997 (unreported) delivered March 3, 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 250 Bank and General Workers Union v Unit Trust Corporation of Trinidad and Tobago TD 370 of 1997 (unreported) delivered February 1, 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 334 Bank Employees’ Union v Barclays Bank Limited TD 98 of 1977 (unreported) delivered January 12, 1978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .250 Bank Employee Union v Republic Bank Limited Civil Appeal No. 9 of 1995 (unreported) delivered April 3, 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 374 Bank Employees Union v Bank of Commerce (Trinidad and Tobago) Ltd TT 2001 CA 70; CA No. 114 of 1999 delivered December 1, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Bank of Nova Scotia v Emile Elias & Co Ltd (1995) 46 WIR 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Banking, Insurance and General Workers Union v BP Trinidad and Tobago LLC TD No. 138 of 2005 (unreported) delivered July 25, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Banking, Insurance and General Workers’ Union v CommNet Caribbean Limited RSBD No 6 of 2008 (unreported) delivered March 5, 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214 Banking Insurance and General Workers Union v Development Finance Limited TD 328 of 2004 (unreported) delivered December 7, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251 Banking, Insurance and General Workers’ Union v First Citizens Bank TD 307/02 (unreported) delivered September 28, 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355 Banking Insurance and General Workers' Union v Guardsman Security Services Limited TD No. 113 of 2007, TT 2009 IC 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Banking Insurance and General Workers' Union v Hindu Credit Union Cooperative Society Limited TD No. 2 of 2001 delivered July 31, 2001 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 154, 164 Banking Insurance and General Workers Union v Pricemart Trinidad Limited TD No. 498 of 2008 (unreported) delivered March 17, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Banking, Insurance and General Workers’ Union v TCM Lease and Rental Limited TD 88 of 2006 (unreported) delivered January 12, 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373 Banking, Insurance and General Workers’ Union v Trinidad and Tobago Hospitality and Tourism Institute TD 225/01 (unreported) delivered January 15, 2003 . . . . . . . . . . . . . . . . . . . . . . . . . 359 Banton v Alcoa Minerals of Jamaica (1971) 17 WIR 275 . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 81, 264, 266, 375 Barber v Somerset County Council [2004] 1 WLR 1089 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 Bata Shoe Company (Jamaica) Limited v BITU Supreme Court, Jamaica (1981) 18 JLR 443. . . . . . . . . . . . . 376 Beetham v Trinidad Cement Ltd [1960] 1 All ER 274, [1960] AC 132 . . . . . . . . . . . . . . . . . . . . . . 265, 325, 375 Berridge and Another v Benjies Business Centre (1994) 49 WIR 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 222 Birch v University of Liverpool [1985] ICR 470, [1985] IRLR 165, CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 BITU v Johnson (1961) 4 WIR 351 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 376 Blackburn v LIAT Eastern Caribbean Supreme Court Civ App No. 31 of 2004 . . . . . . . . . . . . . . . . . . . . 131 Bold v Brough Nicholson and Hall, Ltd [1963] 3 All ER 849 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Boyce v Brewster (1996) 52 WIR 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Bridgen v Lancashire County Council [1987] IRLR 58 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Brindle v HW Smith (Cabinets) Ltd (1973) 8 LTR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 Bristow Caribbean Limited v RRCB TT High Court Suit No. 1537 of 2000 delivered February 1, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Burgess v Stevedoring Services Limited [2002] IRLR 810 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 48, 303, 321 Cable & Wireless (West Indies Limited) v Conrad Tonge (deceased) et al [2010] UKPC 25 (unreported) delivered September 28, 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Holder v Caribbean Air Cargo BB 1984 HC 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 Hollister v National Farmers’ Union [1979] ICR 542 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242 Horkulak v Cantor Fitzgerald International [2003] EWHC 1918 (QB) . . . . . . . . . . . . . . . . . . . . . . . . . . . 128, 147 Hornby v Close (1876) LR 2 QB 153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 269 Hotel Four Seasons Limited v NWU (1985) 22 JLR 201 at 204 F-H . . . . . . . . . . . . . 45, 145, 305, 307, 316, 381 Table of Cases xxi Hussman Manufacturing v Weir [1998] IRLR 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 Hydro Agri Trinidad Limited v Oilfields Workers Trade Union Civil Appeal No. 202 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. . . . . . . 211 Industrial Disputes Tribunal, the University and Allied Workers Union v University of Technology Jamaica 2012 JMCA Civil Appeal 46 (unreported) delivered October 12, 2012 . . . . . . . . . . . . . . . . . . 19 Initial Services Ltd v Putterill [1968] 1 QB 396 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133, 344 Institute of Jamaica, The v The Industrial Disputes Tribunal et al . 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Limited v Brigitte Laurayne [2013] CCJ 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 167 Saneth White v Victoria Mutual Building Society Suit No. HCV0155/2005 (unreported) delivered February 11, 2005 [JM 2005 SC 16] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Sarker v South Tees Acute Hospitals NHS Trust [1997] ICR 673 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Scally v Southern Health and Social Services [1992] 1 AC 294 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 Scholar v Hess Oil Saint Lucia Ltd Suit No. 149 of 1984, (unreported) delivered July 3, 1987 [LC 1987 HC 3] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121, 122, 157 Scott v Coalite Fuels and Chemicals Ltd [1988] ICR 355, [1988] IRLR 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 Table of Cases xxv Scott v Formica Ltd [1975] IRLR 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . … 170 Secretary of State for Employment v ASLEF (No. 2) [1972] 2 QB 455, [1972] 2 All ER 949 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 48, 131, 320 Shackelford v Portland Parish Council Suit No. 48 of 1978 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 377 Shanique Myrie v The State of Barbados CCJ Application No. OA 2 of 2012, [2013] CCJ 3 (OJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 Sheffield v Oxford Controls [1979] IRLR 133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .169 Shell Trinidad Limited v Seamen and Waterfront Workers Trade Union (1972) 21 WIR 505 . . . . . . . . . . . . . . . . . 67 Sheridan v British Telecommunications [1990] IRLR 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Shipping Association of Georgetown v Hayden (1975) 22 WIR 135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120, 121 Shipping Association of Georgetown and Bookers Shipping (Demerara) Ltd v Arthur Hayden (1975) 22 WIR 135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 295 Shirlaw v Southern Foundaries Ltd [1930] 2 All ER 113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123, 344 Sim v Rotherham Metropolitan Borough Council [1987] Ch 216, [1986] 3 All ER 387 . . . . . . . . . . . 125, 131, 306 Singh v British Steel [1974] IRLR 131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Smith v Air Bvi Ltd et al [1991] AI 1991 HC 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .160, 383 Smith v British Virgin Islands Electricity Corporation (2009) 76 WIR 241. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .253 Smith v City of Glasgow District Council [1987] IRLR 326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .223 Smith v Dew (Dantzler WI Limited) Civil Appeal No. 10 of 1992 OECS CA (unreported) delivered June 6, 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211 Smith v Griffith (1974) 22 WIR 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Smith v Snack Food Wholesale Limited SC Civil Appeal No. 45 of 2007 (unreported) delivered May 21, 2009 [BS 2009 CA 39] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Smith et al v Caribbean Hotel Management Services Limited T/A Club Antigua Industrial Court Ref. # 45 of 1996 (unreported) delivered March 12, 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .187 Somrah v Attorney General of Guyana [2009] CCJ 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 St Albans Holdings Limited v Mackey et al. 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Suit No. HCV0155/2005 (unreported) delivered February 11, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 White v Welcome Inn (Barbados) Ltd Suit No 1319 of 1985 (unreported) HC delivered March 9, 1988 . . . . 158 William Hill Organisation Ltd v Tucker [1998] IRLR 313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 Wilson v Maynard Shipbuilding Consultants [1978] 2 All ER 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Wiltshire et al. v Grenada Ports Authority No. 636 of 1993, SC Grenada December 27.1.95 (WebCt) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Wood v Caribbean Label Craft Limited Magisterial Appeal No. 11 of 2001 (unreported) delivered July 16, 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154, 171 Wood v Freeloader Ltd [1977] IRLR 455 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Wood v WM Car Services (Peterborough) Ltd [1981] ICR 666 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Yasseen v The Attorney General of Guyana (2008) 72 WIR 317 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Yewens v Noakes (1880-81) LR 6 QBD 530 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 TABLE OF STATUTES Anguilla Control of Employment Act 2010 Fair Labour Standards Ordinance 1988 Ordinance of Anguilla 1980 Protection of Wages Ordinance, 1967 90 21 90 116 Antigua and Barbuda Bankruptcy Act 207 Caribbean Community Skilled Nationals Act 1997 29 Companies Act, cap 358 384 Constitution s 122 47 Contracts Act 1835 5 Essential Services Act, Act 9 of 2008 337, 413 s2 69 s5 69 Industrial Court Act, Act No. 4 1976 s 4 (1) 68 s 4 (4) (a) 69 s 4 (4) (b) 69 s 4 (8) 69 s 5 (2) 69 s 7 (1) (a) and (b) 68 s 7 (1) (c) 68 s 7 (2) 69 s 7 (3) and (4) 69 s 7 (5) 68 s 7 (6) 69 s 8 (1) 69 s 8 (6) 69 s 8 (7) 69 s 9 (1) 69 s 9 (2) 70 s 10 (1) 70 s 10 (2) 70 s 10 (3) 70, 382 s 10 (4) 70, 254, 256 s 10 (5) 70, 254, 257 s 11 69, 70 s 12 69 s 14 (1) 70 s 17 (1) 71 s 17 (2) and (3) 71 s 17 (4) 47, 68, 69 s 28 69 Labour Code, Chapter 27, 1975 23, 114, 178, 278, 279 Division A 114 A2 23 A2–A4 A5 114 68, 103, 191, 310, 311, 313, 322, 325, 389, 411 Division B B12 (1) 255 Division C 114, 138 Division C Part 2; C13-C20 117 Division C Part IV 21 C3 183 C4 114 C5 104, 114, 391 C5 (1) 104 C6 114 C7 114, 379 C9 (4) 144 C10 (1) 221 C10 (3) 172, 221 C10 (4) 222 C14 117 C15 117 C16 117 C17 117 C40 189, 399 C41 209 C42 213 C44 199 C47 208 C55 207 C56–C58 218, 219, 395 C58 226, 232 C58 (1) (e) 242 C58 (2) 238 C59 (1) and (2) 232 C59 (2), (3), (4) 236 C59 (3) 232 C59 (5) 233 C59 and C60 162, 227, 382, 384 Division G G7 and G9 304, 413 G8 304 G14 282 G18 281 Division H 82, 86 H6 283 Division K K19 317, 322, 412 K20 324, 412 K21 413 K22 309 K 26 and K 27 40, 280, 405 xxviii Table of Statutes K 27 (1) 121, 295 Labour Commissioner Act 1951 22 Masters and Servants Act 1834 261 Public Authorities Protection Act, Cap 66 383 Ratification of Treaties Act 1987 Chap. 364.1 33 Trade Disputes (Arbitration and Settlement) Ordinance No. 13 of 1967 68 Workmen’s Compensation Act 1961 Cap 377 s 3 (1) 119 Australia Lie Detector Act 1983 No. 62 358 Bahamas Companies Act 207 Data Protection (Privacy of Personal Information) Act 2003 25, 345, 346 Employment Act No. 27 of 2001 22, 178, 182,186 s2 94, 191 s 2 (1) 120 s 3 (1) 219 s6 94 ss 12-15 117 s 13 (2) (a) 117 s 26 189, 385, 195, 209, 212 s 26 (2) 209 s 27 (4) 201 s 28 207, 213 s 29 120, 138, 385 s 29 (2) 142 s 29 (3) 149 ss 31 and 32 385 s 34 218 s 35 225, 231 ss 35-42 152 s 37 232 s 38 231 s 39 229 s 40 385 s 41 155 s 42 253 s 43 73 s 43 (2) 254 s 43 (3) 254 s 43 (4) 256 s 44 73 ss 45-48 258 s 46 73 s 46 (1) 259 s 46 (2) and (4) 259 s 46 (3) 259 s 46 (5) 259 s 47 (1) 259 s 47 (2) 259 s 47 (4) and (5) 259 s 48 (1) 259 s 48 (3) 259 ss 67-70 25, 348, 359 Part III s 11 117 Part IV 21 Part XII 438 Health and Safety at Work Act 2002 119 Industrial Act 1970 23 Industrial Relations Act (Act 9 of 1996) s2 72, 279, 311, 313, 325, 415 s 2 (1) 89 s 2 and 18 Fourth Schedule 72 s3 26, 92 s 3 Fourth Schedule 26, 72 s 4 Fourth Schedule 73, 115 s7 281 s 20 282, 415 s 27 279 s 37 304, 416 s 37(1) 304 s 40 26 s 41 (3) 82 s 42 82 s 43 82 s 46 (2) 40, 41 s 48 406, 407 s 49 40, 121, 280, 295, 406 s 49 (2) 40, 41 ss 50 and 51 (1) 41, 406 s 53 41 s 54 51, 72 s 54 (3) 72 s 55 71 s 56 (1) 72 s 56 (4) 72 s 56 (6) 73 s 57 73 s 58 (1) 72 s 58 (2) 73 s 59 72 s 60 73 s 63 (1) 73 s 64 46, 73 s 68 (1) and (3) 331 s 68-73 73, 155 s 69 (1) and (2) 331 s 69 (3) 331 s 70 80, 331 s 71 331 s 72 (1) 337 s 73 331 s 74 416 s 74 (1) 331 s 74 (2) 331 s 74 (3) 309, 331 Table of Statutes s 75 417 s 75 (1) 332 s 75 (3) 332 s 76 418 s 76 (1) 332 s 76 (2) 332 s 77 332, 418 s 80 307 s 81 322, 323, 418, 419 s 82 324, 418 s 82 (2) 324 s 83 332 Minimum Wages Act 2002 22 ss 4 and 5 116 National Insurance Act 2009 182 Sexual Offences Act 1991 s 26 25, 370, 433 Workmen’s Compensation Act 1965 Cap 245 s 3 (1) 119 Barbados Better Security Act 1920 336, 338 Code of Practice on HIV/AIDS and other Life-Threatening Illnesses in the Workplace 25 Constitution s 17 341 s 21 296 s 87 47 Contracts Law 261 Domestic Employees Act 95 Employment of Women (Maternity Leave) Act 1976 43, 118 s9 43 Employment Rights Act, Act 9 of 2012 (Proclaimed April 15, 2013) 21, 114, 156, 158–9, 196, 216, 218, 259, 260, 311, 313 s6 57 s 13 105, 391 s 13 (1) 114 s 13 (2) 114 s 14 105 s 14 (1) (a) 115 s 14 (1) (b) 115 s 14 (2) and 14 (3) 115 s 15 (1) and (2) 115 s 17 (1) 115 s 17 (2) 115 s 19 (1) 115 s 20 (1) 115 s 21 115 s 22 160, 220 s 22 (2) 222 s 22 (3) 220, 222 xxix s 22 (4) 142 s 22 (5) 137, 139 s 22 (6) 144 s 24 (4) and (5) 220 s 25 222 s 26 (1) 220 s 26 (2) 220 s 27 218, 219 s 29 (1) 223 s 29 (1) (b) 232, 242 s 29 (2) 232 s 29( 2) (a) 233 s 29 (2) (b) 236 s 29 (2) (d) 241 s 29 (3) 233 s 29 (4) and (5) 228 s 29 (4) 225 s 30 (1 ) (a) 232 s 30 (1) (c) 231 s 30 (2) 231 s 31 239 s 31 (4) 240 s 31 (5) 240 s 31 (6) 240 s 32 155, 219 s 33 (3) 254 s 34 (1) 254 s 34 (2) 254 s 35 256 s 35 (1) 256 s 35 (2) 256 s 37 258 s 37 (1) (b) (c) 256 s 38 204, 205 s 40 (4) (a) 220 s 43 (4) 256 s 44 256 s 48 258 Holidays with Pay Act 1952 Ch. 348, ss 3 and 4 147 Labour Clauses (Public Contracts) Act 95 Magistrates’ Jurisdiction and Procedure Act (Cap 116) (1971 Rev) s 131 44 National Insurance and Social Security Act 182 Occupiers Liability Act s 4 (6) 95 Protection of Wages Act Chapter 351, 12 November 1951 115 ss 4 and 5 115 Safety and Health at Work Act (Act 12 of 2005) 22, 119 Severance Payments Act Cap 355A 1971 21, 156, 157, 158, 178, 182, 189, 190, 191, 195, 197, 199, 201, 205, 400 s 38 (5) 57, 187 xxx Table of Statutes s 3A 213 s8 202 s 18 (1) 203 ss 24-34 214 ss 30 and 31 214 First Schedule 209 Sugar Workers (Minimum Wage and Guaranteed Employment) Act 95 Trade Disputes (Arbitration and Inquiry) Act 1939 9 s4 54 Trade Disputes and Arbitration Act 325, 327 Trade Union Act 1939 7, 279, 280, 283 s2 325 ss 7 and 8 304 ss 27 and 30 396 s 27(3) 155 s 39 322 s 40 324 Trade Union Act (consolidated 1964) 93 Trade Union Act (Act No 40) 1974 s 8A 304 Belize Factories Act 1942 7, 119 International Labour Organisation Conventions Act 1999 123 Cap 304:01 34 s 3 and s 4 34 Labour Act, Chap. 297 of 2000 113, 311, 313, 439 s 50 111, 392 s 51 111 s 51 (c) 111 s 51 (f) 111 s 51 (h) 111 s 51 (i) and (j) 111 s 52 112 s 57 111, 172 s 183 (1) 189 s 203 155 s 204 224 Labour (Amendment) Act 2011 21, 38, 179 s 42 (1) (i) 25, 216, 306 ss 177-181 118 Part X, ss 95-97 116 Part XI, ss 115-135 117 Part XVI Maternity Protection, Part XVIII, s 45 and s 183 21 Part XX, s 200 57 Protection against Sexual Harassment Act 1996 25, 370, 371, 434 Settlement of Disputes in Essential Services Act 1953 311, 313, 336, 337, 338 Trade Union Act 1941 7 s 30 (1) 322 s 30 (2) 323 s 31 324 ss 32 (2), 33 and 34 304 Trade Unions and Employers Organisations (Registration, Recognition and Status) Act 2000 86 Part V 82 s2 279 s5 122 s 16 (1) 87, 279 s 18 281 s 22 82 Bermuda Employment Act 2000 s 28 s 35 216 230 57 British Virgin Islands Labour Code 1975 Labour Code 2010 s 82 (1) (d) s 82 (1) (e) s 104 s 119 Part V Part VII 23, 313, 370 253, 437, 440 306 25 179 25, 370 216, 230 437 Canada Criminal Code of Canada 360 CARICOM Instruments Agreement Establishing the Caribbean Court of Justice 2001 Article 111(1) Article 111(3) Article IV (1) Article IV (6) Article IV (7) Article IV (11) Article IX (1) Article IX (2) Article IX (3) Article IX (4) Article IX (5) Article IX (9) Article XII Articles XII & XIV (1) Article XIV (2) Article XVI Article XVII (1) Article XX Article XVII (2) Article XXII (2) Article XXIV Article XXV (1) Article XXV (2) Article XXV (3) Article XXV (2) & (3) 49, 50 49 49 49 49 49 49 50 49 49 50 50 50 51 51 51 53 51 52 52 52 51 50 50 50 50 Table of Statutes Article XXV (4) 50 Declaration of Labour and Industrial Relations Principles (1995) 28 Grande Anse Declaration, 1989 28 Harmonisation Model Law 137 Model Harmonisation Act Regarding Equality of Opportunity and Treatment in Employment and Occupation Part 1 94 Model Harmonisation Act Regarding Registration, Status and Recognition of Trade Unions and Employers’ Organisations 3, 30, 284, 338 Model Harmonisation Act Regarding Termination of Employment. 169 s 1 (b) 221 s2 91 s7 94 s9 95 s 11 95 s 25 173 ss 26–28 141 s 27 (2) 169 s 28 (1) 221 Model Legislation on Sexual Harassment 371 Original Treaty of Chaguaramas 28 Revised Treaty of Chaguramas 2001 29 Revised Treaty of Chaguaramas Article 32 Paragraph 5(a) and Part 1.2 Original Jurisdiction Rules (2006) 52 Treaty of Chaguramas 1973 28 Dominica Employment Safety Act 1983 119 Employment of Women, Young Persons and Children Act 95 Industrial Relations Act 35 of 1975 78 Industrial Relations Act Cap 89:01 1986 57 Part IV 83 s2 311, 313, 325 s 4 (2) 78 s 4 (4) 79 s 5 (1) 78 s 6 (2) (a) 78 s 6 (5) 57, 79 s8 79 s 9 (1) 79 s 9 (2) (a) (c) (i) 79 s 9 (2) (k) 79 s 11 (4) 79 s 12 (2) 79 s 13 79 s 14 (1) and (2) 79 s 14 (4) and (5) 79 xxxi s 15 (1) and (2) 45, 75 s 15 (2) 45 s 15 (3) 79 s 16 79 s 38 79 s 71 308 Labour Contracts Act 1983 s 2 (2) 92 s3 113 s5 393 s 5 (1) (c) 113, 393 s 5 (1) (e) 113 s 5 (1) (f) 113 s 5 (1) (h) 113 s 5 (2) 113 Labour Standards Act 1977 22 s 30 78 Protection of Employment Act 1977 21, 22, 163, 178, 184, 189, 191, 197 s3 218 ss 4 and 5 232 s 6 (a) 7 and 8 236 s 6( b) and 9 233 ss 6-9 227 s 10 216, 230, 231 s 12 200 s 15 221 s 19 142 s 22 209 ss 27-35 214 s 36 207 s 37 79, 227 s 38 254 s 38(2) 258 s 39 258 Protection of Wages Act 1961 22 ss 3 and 4 116 Trade Union Act ss 18, 19 and 20 (1) 304 s 21 324 s 22 322 Workmen’s Compensation Act 1961, Cap 122 s 3 (1) 119 EU Instruments European Convention on Human Rights Article 8 (1) 128 Ghana Whistleblower Act 2006 (Act 720) 360 Grenada Employment Act 1997 s2 s 26 (1) 371 369 371 xxxii Table of Statutes Employment Act 14 of 1999 (amended 2000) 22, 121, 178, 181, 184, 189, 191, 197, 207, 208, 216, 219, 223, 225, 226, 295 s2 89, 389 s 72 118 s 72 (3) 118 s 74 (1) 232 s 74 (2) 230 s 77 230 s 78 (1) (f) 221 s 82 (1) 155 s 83 (1) (a) and (2) 254 s 83 (1) (b) 256 s 83 (4) 258 s 83 (6) 258 Part VIII, ss 59-69 118 Labour Relations Act 322, 324 Act 14 89 No. 15 of 1999 (amended 2003) 89 s2 88, 279, 311, 313, 325 s3 92 s 10 279 s 46 57 Part VI 82 Trade Union Act ss 67 and 68 304 Guyana Constitution s 147 265 Employment of Young Persons and Children Act 7, 95 Factories Act 7 Labour Act 265 Part VIII, s 30 121, 295, 407 s 30 40 Labour (Conditions of Employment of Certain Workers) Act 91, 95 s2 92 Holiday with Pay Act 1995 117 Occupational Safety and Health Act (Act 32 of 1997) 22, 119 Prevention of Discrimination Act (1997) 437 s8 25, 370 Public Utilities Undertakings and Public Health Services Arbitration Act 1956 313, 325, 336, 337, 338, 376 s4 57 Summary Jurisdiction (Offences) Act s 27(1) 324 s 27(2) 322, 323 Termination of Employment and Severance Payments Act 1997 21, 178, 181, 184, 189, 190, 191, 195, 196, 197, 205, 208, 209, 216, 227, 306 s 8 (1) ss 11 and 18 s 15 (2) s 15 (5) s 19 s 20 (1) and (2) Trade Union Act 1921 s2 ss 7, 8 and 9 s 10 s 15 s 18 Trade Union Recognition Act 1997 Part II Part III s4 s 15 ILO Instruments Abolition of Forced labour Convention 1957 Code of Practice on HIV/AIDS and the World of Work (2001) Code of Practice on the Protection of Workers’ Personal Data (1996) Constitution s 22 Article 22 Article 24 Article 26 s 37(1) Convention 123 Holidays with Pay (Revised) 1970 Convention 151 Labour Relations (Public Service) Convention 1978 Article 1.2 Convention 158 Termination of Employment article 3 (2) C 183 Maternity Protection Convention (2000) Article 4 Employment Relationship Recommendation, R198 of 2006 Part I s 1 Part I s 4 (a), (b) and (e) Part II ss 9 and 10 Part II s 11 (b) Part II s 13 (a) and (b) Part II s 14 Freedom of Association and Protection of the Right to Organise Convention 1948 (No. 87) Right to Organise and Collective Bargaining Convention 1949 (No. 98) Social Security (Minimum Standards) Convention 1952 230 232 144 144 57 258 6, 271, 278, 280 278 304 280 281 280 86 82 82 82 140 297 33 33 32 36 36 36 36 37 116 37 37 102 118 102 102 102 103 103 103 103 34, 35 34, 35 297 Table of Statutes Termination of Employment Convention 1982 (No. 158) 34, 102, 141, 250, 253 221 No. 166 Termination of Employment Recommendation 1963 (No. 119) Unemployment Provisions Convention 1934 (No. 44) Article 10 34 297 International (UN) Instruments International Court of Justice Statute Article 38(1)(b) 31 International Covenant on Civil and Political Rights (ICCPR) Article 21 & 22 31 Part 2 Article 2 31 International Covenant on Economic, Social and Cultural Rights (ICESCR) Articles 6-8 31 Part 2 Article 2 31 OAS Inter-American Convention Against Corruption 1996 360 United Nations Convention against Corruption (2003) 360 United Nations General Assembly Declaration on the Elimination of Violence against Women 368 Universal Declaration on Human Rights 1948 Article 12 128 Articles 20 & 23 31 Jamaica Arbitration Act 376, 379 Bankruptcy Act 207 Caribbean Court of Justice (Constitutional Amendment) Act 2004, Act 20 50 Caribbean Community (Movement of Skilled Persons) Act 1997 29 Caribbean Community Act (2005) 105 Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011, Act 13 s 13 (3) (e) 264 s 23 (1) 264 Constitution 1962 264 s 13 355 ss 13, 23 (1) and 25 (1) 264, 375 s 13 (3) (e) 296 s 13 (3) (j) (ii) 341 s 23 (1) 388 s 110 47 Employment (Termination and Redundancy Payments) Act 1974 (ETRPA) 21, 164, 168, 169, 178, 181, 182, 191, 192, 197, 308, 379, 382, 401 s3 38, 139, 387 s 3 (1) 148 s 3 (2) 142 xxxiii s 3 (3) (a) 144 s 3 (3) (b) 144 s 3 (3) (c) 135 s5 186, 189 s7 199 s 11 173, 206 Factories Act 1943 7, 119 Finger Prints Act 1936 (amended 2005 and 2009) 348 Friendly Societies, Industrial and Provident Societies, and Companies Acts 207, 274, 278 Holiday with Pay Act 1947 117 s7 117 s 10 A 43 Holidays with Pay Order 1973 117 s 4 (5) 117 s 8 (3) (b) 117 Income Tax Act 95 Interpretation Act s 49(2) 266, 375 Interception of Communications Act 353 Justices of the Peace Jurisdiction Act s6 266, 375 Labour Relations and Industrial Disputes Act (LRIDA) 1975 9, 19, 21, 22, 89, 153, 155, 216, 218 First Schedule 338 s 1 (1) (a) Second Schedule 74 s (1) (1) (b) 74 s 1 (1) (c) Second Schedule 74 s 1 (2) Second Schedule 74 s2 19, 89, 98, 274, 285, 310, 311, 313, 325, 378, 379, 389, 423 s3 92 s 3 (4) 387, 388 s4 264, 265, 296 s 4 (1) (2) 375 s 4A 83, 265, 286 s5 83, 286, 299, 378 s 5 (5) and (6) 265 s 5B and Fifth Schedule 329, 423 s 5 (8) 82 s 6 (1) and (2) 329 s7 379 s8 57 s 8 (1) 74 s 8 (2) 74 s 8 (2) (a) and (b) 74 s (8) (5) 74 s 8 (8) 74 s9 337, 424 s 9 (5) 381 s 10 74 s 10 (1) and (2) 329 s 11 387 xxxiv s 11A s 11B s 12 s 12 (1) s 12 (3) s 12 (4) (a) and (b) s 12 (4) (c) s 12 (5) s 12 (5A) s 12 (5) (a) s 12 (5) (b) Table of Statutes 329, 380 155 424 74 74 75 45, 75, 381 377 75 75, 330 75, 243, 244, 245, 248, 254, 255, 378, 380, 398 s 12 (5) (c) 75 s 12 (6) 75 s 12 (7) (a) 75 s 12 (7) (b) 75 s 12(9) 330 s 12 (10) 75 s 13 309, 424 s 13(1) and (2) 330 s 13(3) 330 s 16 (a) 75 s 16 (1) 76 s 19 387 s 20 76 s 25 (2) 92 s 27 378 s 31 425 s 31 (2) 44 s 32 330, 425 LRIDA Act 5, 2002 267, 352 LRIDA Act 8, 2010 325 Labour Relations and Industrial Disputes Regulations 19, 26, 288, 378, 388 Regulation 4 83 Regulation 6 83 Law Reform (Frustrated Contracts) Act 1968 171 Masters and Servants Act of Jamaica 1843 5, 21, 261 Maternity Leave Act 1979 88, 118 s5 43, 118 s 5 (2) (c) 118 s 7 (5) 43 Minimum Wage Act 1974 116 s3 116 s4 116 s5 116 s 5 (2) 43 Occupiers Liability Act s 3 (6) 95 Private Security Regulation Authority Act 99 Protected Disclosures Act 2011 25, 362, 363 Protected Disclosures (designated Authority Order) 2012 363 Protection of Property Act 304 Public Utilities Undertaking and Public Service Arbitration Law, Law 6 of 1952 8, 9, 22, 336, 376 Representation of the People Act 1944 348 Staff Orders for Public Service 2004 93 Trade Disputes (Arbitration and Enquiry) Law, Law 16 of 1939 9, 22, 327 Trade Disputes (Arbitration and Inquiry) Ordinance 1950 ss 2(1) and 8 (1) 265 Trade Disputes Act 1906 s5 265 Trade Union Act s2 272 s3 304 s 17 86 s 33 322 s 33 (1) 324 ss 34 and 35 304 Trade Union Act 1919 6, 86, 93, 261, 271 Trade Union Act 1940 s 17 86 Trade Union Act 2002 272–6, 326 s2 272, 325, 425 s 33 322, 425 s 33 (1) 324 s 33 (5) 322 ss 34 and 35 304, 426 Women (Employment of) Act 95 Workmen’s Compensation Act 1938, Chap 418 s3 119 Montserrat Labour Code Act 20 of 2012 23 s 62(e) 25, 216, 230, 440 s 187 23 Workmen’s Compensation Act 1962 Cap 323 s 3 (1) 119 New Zealand Protected Disclosures Act 2000 360 St Kitts and Nevis Draft Labour Code 179 Holidays with Pay Act, No.19 of 1968 22, 117, 164, 169, 178, 184, 189, 190, 191, 197, 207, 210, 214 Labour Ordinance 1966 22 Protection of Employment Act 1986 (amended 2001) 22, 95 s3 38, 92 s4 140 s5 232 s 7 (2) 144 Table of Statutes s 8 (1) 142 s 8 (2) 142 s 11 230 Part IV, ss 39-39 118 Protection of Wages Ordinance 22 Trade Disputes (Arbitration and Inquiry) Act s4 57 Trade Union Act ss 6, 7 and 8 304 s9 324 s 10 322 s 11 280 Workmen’s Compensation Act 1961 Cap 354 s 3 (1) 119 St Lucia Contracts of Employment Act 1970 178 Criminal Code 2004 436 s 139 25, 370 Criminal Records (Rehabilitation of Offenders) Act 2004 No 2 231 Interception of Communications Act 353 Labour Code, Act 37, 2006 (proclaimed August 1, 2012) 112, 221, 295 s2 89, 191, 279, 310, 311, 322, 325, 390, 420, 436 s8 296 s 12 105, 394 s 12 (1) 112 s 12 (5) 112 s 12 (6) 112, 113 s 13 (1) 112 s 13 (3) 112 s 13 (4) 112 ss 13 and 14 105, 394 s 14 (1) 112, 113 s 15 112, 394 s 16 105, 394 s 17 112 ss 18 and 20 409 s 23 190 ss 128 and 131 216, 219 ss 129, 133, 136, 138, 139, 143, 145 232 s 130 219 s 131(1) (f) 25, 230, 231, 306, 398 s 132 230 s 133 (2) 235 s 133 (3) 235 ss 133-144 165 s 135 227 s 135 (1) and (2) 236 s 135 (3) 236 ss 136 and 137 233 s 138 233, 234 s 140 229, 235 xxxv s 143 (1) s 143 (2) ss 145, 146, and 149 234 236 142, 184, 195, 196, 403 s 147 200 ss 151 and 152 173 s 153 (2) 142, 144 ss 153-156 140 s 158 (1) 223 s 158 (2) 223 s 160 189, 210 s 161 181 s 162 197, 202 ss 267 and 272 25, 370, 436 ss 335 (5) (d) and 336 280 s 346 (1) 279, 421 s 346 (3) 304 s 378 (1) (f) 40, 409 s 379 40, 409 s 379 (3) 40 s 382 421 s 383 317, 421 s 384 322, 421 s 385 421 s 386 308, 421 ss 391-398 337, 421 s 392 309 s 462 23 Part III Division I 23, 105, 119 Part III Division 5, ss 38 and 39 115 Part V 439 Part VII Division 2 82 Part VII Division 4, s 424 57 Part VII Division 10 Staff Orders for Public Service 1983 93 St Vincent and the Grenadines Immigration (Caribbean Community Skilled Nationals) Act 1997 29 Protection of Employment Act 1980 (repealed and replaced by Act 20 of 2003, Cap. 212) 144, 178, 180, 184, 189, 191, 195, 197, 199, 201, 207, 208, 213, 216, 218 s 14 (2) 135 s 25 (1) (a) 22, 26, 120, 210 Trade Disputes (Arbitration and Inquiry) Law (1941) s4 57 Trade Disputes (Arbitration and Settlement) Ordinance No 13 of 1967 68, 325, 327 Trade Union Act 1943 6 Trade Union Act s 5 (2) 227, 232 ss 9 and 12 232 s 9 (2) (b) 233 xxxvi s 9 (2) (c) s 9 (2) (d) s 9 (2) (e) s 10 s 14 (2) s 16 s 17 (2) (b) s 17 (2) (c) s 17 (3) s 18 s 21 ss 27, 28 and 29 s 30 s 31 Trade Union Act Section 20(2) (Act 8 of 1966) Trade Union Act Section 8A (Act No. 40 of 1974) Wages Regulations 2003 Workmen’s Compensation Act No. 22 of 1963 s 3 (1) South Africa Protected Disclosures Act 2000, Act of 26 of 2000 Table of Statutes 235 233 241 281 135 230 256 259 254 223 282, 283 304 324 322 304 304 21, 22, 95 119 360, 361 Trinidad and Tobago Cane Farmers Incorporation and Cess Act 1965 266 Caribbean Community Act 2005 29 Constitution s1 264, 266 ss 2, 4, 6 and 36 264, 375 s 4 (a) 355 s 4 (c) 341 s 4 (j) 296 s 54 and s 109 47 Data Protection Act 2011 25, 345, 346, 347, 362 Disputes and Protection of Property Act s3 322, 324 s4 324 ss 5 and 6 304 Equal Opportunity Act (2000) 371 Factories Ordinance 1948 7 Foreign Labour Contracts Act [1900] as amended, Chap 88:11 91 Immigration Ordinance No. 1 1847 5 Immigration (Caribbean Community Skilled Nationals) Act 1996 29 Industrial Courts Act 1919 212, 265, 375 Industrial Relations Act 1972 9, 22, 86, 312, 318 s2 89, 90, 310, 311, 313, 325, 390, 409, 427 s 2 (3) 92 s 2 (3) (b) 92 s 2 (3) (e) 84 s 4 (1) 44, 58 s 4 (2A) 58 s 4 (2C) 58 s 4 (3) 58 s 4 (3A) 59 s 4 (4) (5) (6) (7) 59 s 4 (8) 59 s 5 (1) 59 s 7 (1) 60 s 7 (2) and (7) 66 s 7 (3) 59 s 7 (4) 59 s 7 (5) 59 s 7 (6) 66 s 7 (9) 59 s 8 (1) (3) (5) 67 s 8 (6) 67 s 9 (1) 67 s 9 (2) 64 s 10 65, 216 s 10 (1) 65 s 10 (1) (b) 60 s 10 (1) (c) 60 s 10 (1) (d) 66 s 10 (2) 64 s 10 (3) 67, 254, 399 s 10 (3) and s 10 (5) 35 s 10 (4) 62, 254, 256 s 10 (5) 61, 62, 168, 249, 254, 257 s 10 (6) 63 s 11 67 s 12 (2) 66 s 13 (1) 64 s 13 (3) 65 s 14 60 s 15 60 s 16 (1) 60 s 16 (2) 60 s 17 67 s 18 (1) (a) 63 s 18 (1) (b) 63 s 18 (2) 46 s 19 60, 200 s 20 67 s 21 82 s 21 (3) 83 s 22 (1) and (8) 83 s 22 (2) 84 s 23 (1) 84 s 23 (5) 84 s 23 (6) 85 s 23 (7) 85 s 31 85 s 32 (2) and (3) 84 s 32 (4) 84 Table of Statutes s 33 (1) s 34 (1) s 34 (2) s 34 (3) s 35 s 36 (1) s 37 (1) s 39 (2) (a) and (b) s 39 (2) (c) and (d) s 39 (3) s 40 (2) s 41 (1) s 41 (2) ss 43-50 s 43 (1) s 43 (2) s 43 (5) s 44 (1) s 45 (1) s 45 (4) s 46 (1) s 46 (1) (d) s 46 (2) s 46 (3) s 47 s 47 (1) s 47 (2) s 48 s 49 s 50 s 51 (1) s 51 (1) (a) s 51 (1) (b) & (c) s 51 (3) s 51 (4) s 52 (1) s 53 (1) (b) s 53 (5) s 54 (1) s 55 (1) s 56 (1) s 58(1) and (2) s 59 ss 60–69 s 60(2) s 60(3) s 62(1) s 63 (1)b and (2) s 64 (1) s 65 s 65 (1) s 66 (1) and (2) s 67 s 72 s 84 Part II Part III 84 84 84 84 84 84 84 84 85 85 82 84 84 40 41 40 41 40 40 40 41, 410 41 40 41 41, 121, 295, 410 41 41 410 411 411 61, 333 61 61 65, 333 65, 333 333 333 333 333 334 333 334 61, 334, 337, 428 428–32 335 335 306, 307 305, 309, 335 307 61 60, 336 66, 336 337 84, 281 65 82 82 xxxvii Industrial Stabilisation Act 1965 (ISA) 9, 21, 22, 216 s 3 (2) 83 s 3 (7) 83 s 13A 62 Industrial Stabilisation (Amendment) Act of 1967 58 Integrity in Public Life Act, Act 83 of 2000 362 Interception of Communication Act, Act 11, 2010 (Cap 15.08) 352, 353 Maternity Protection Act no. 4 of 1998 90 s 12 60 Chap. 45:57 118 Minimum Wages Order, Legal Notice No. 40 of 1999 90 Minimum Wages Act 2000 (Cap 88:04 Act 35 of 1976 (as amended)) 116 s2 92 s3 116 s5 116 s 22 B 60 s 22 (D) 65 Occupational Safety and Health Act 2003 (OSHA) (Act 1 of 2004) 60, 119 s 83 A 61 s 97 (A) 60 Occupational Safety and Health (Amendment) Act (Act 3 of 2006) 61 Police Services Act (2006) 348 Retrenchment and Severance Benefits Act 1985 (RSBA) 21, 178, 190, 191, 194, 195, 196, 197, 199, 201, 208, 210, 404 Chap 88:13 at s 2 92, 184 s 22 61, 213 s 24 60, 206 Trade Disputes (Arbitration and Inquiry) Ordinance 22, 327, 375 Trade Disputes and Protection of Property Act 336, 432 s2 325 Trade Union Act 1932 6, 93, 280, 281 Truck Act Cap 88:07, 1 January 1920 116 Workmen’s Compensation Act, Cap 88:05, 1980 s 4 (1) 119 United Kingdom Data Protection Act 1998 345, 352 Employment Protection Act 1975 215 Employment Rights Act 1996 182, 215, 217, 222, 360, 361 s 28 (1) 220 ss 94-132 215 s 97 220 s 98 222, 232 s 98 (1) (b) 242 xxxviii s 98 (2) (d) s 98 (4) ss 118-124 s 139(1) Enterprise and Regulatory Reform Act 2013 Human Rights Act 1988 Industrial Relations Act 1971 Judicial Committee Act 1833 Master and Servant Act 1823 Protection from Harassment Act 1997 Public Interest Disclosure Act 1998 Table of Statutes 182, 361 343, 353 215, 248 47 5 Redundancy Payments Act 1965 177 Regulation of Investigatory Powers Act (2000) 345, 351, 353 Sex Discrimination Act 370 Slavery Abolition Act 1833 4 Trade Disputes Act (1906) 265, 304, 375 Trade Union Act 1871 271 Telecommunications (Lawful Business Practice) (Interception of Communications) Regulation 2000 345, 351 322, 367 345, 351, 353, 360 United States Employee Polygraph Protection Act 1988 241 225 258 88 358, 359 LIST OF TABLES CHAPTER 2 Table 1: Number of Matters Filed in the Industrial Court of Trinidad and Tobago 2002–2012 Number of Matters Filed and Settled in the Antigua and Barbuda Industrial Court 2002–2012 Table 3a: Disputes Referred to the Industrial Disputes Tribunal of Jamaica 2000–2012 Table 3b: Outcome of Disputes Referred to the Industrial Disputes Tribunal 2000–2012 Table 4: Individual (Non-unionised) Disputes Referred since the 2010 Amendment to LRIDA 68 Table 2: 71 77 77 79 CHAPTER 5 Table 5: Table 6: Examples of Statutory Minimum Notice Periods in the Commonwealth Caribbean Major Differences between Wrongful and Unfair Dismissal 138 155 CHAPTER 6 Table 7: Table 8: Select Statutory Redundancy Calculation in the Commonwealth Caribbean Examples of Automatically Unfair Dismissal Categorisation in the Selected Commonwealth Caribbean Countries 209 231 CHAPTER 8 Table 9: Work Stoppage Based on Industrial Action in Barbados 2002–2012 Table 10: Work Stoppage Based on Industrial Action in Jamaica 2002–2012 Table 11: Work Stoppage Based on Industrial Action in Trinidad and Tobago 2002–2012 328 330 336 CHAPTER 9 Table 12: Examples of Violent Behaviours at Work 366 LIST OF ABBREVIATIONS Anglo-Am. L. R. Austl. J. Labour L. Bul. E. Cbbean. A. Berkeley J. Emp. & Lab. L. Cath. U. L. Rev. Cbbean Affairs Cbbean J. Pub. S. Cbbean Lab. J. Cbbean L. Rev. Cbbean Q. CLB CLJ Cin. L. Rev. Comp. Lab. L. & Pol’y J. C. Leg. P. DPIJ Elec. Bus. L. Emp. Rel. Eur. J. W. Org. Psy. E. Lab. L. J. Fl. Coastal L. J. Geo. L. J. Hastings Race & Poverty L. J. Hofstra Lab. Emp. L. J. Hous. L. Rev. Ind. Law J. Ind. Rel J. ISER ICLQ IDPL IERR Int. J. Comp. IJLM ILR Iowa L. Rev. JLJ JTURDC J. Bus. Ethics J. Cbbean A. Mgmt J. Crim. L. J. East Cbbean JIER JIWS J. Transnat'l Lab. & Pol'y Lab. Law. LOA McGill L. J. Mgr L. MLR Mo. L. Rev. NLJ Anglo-American Law Review Australian Journal of Labour Law Bulletin of Eastern Caribbean Affairs Berkeley Journal of Employment and Labour Law Catholic University Law Review Caribbean Affairs Caribbean Journal of Public Sector Management Caribbean Labour Journal Caribbean Law Review Caribbean Quarterly Commonwealth Law Bulletin Cambridge Law Journal Cincinnati Law Review Comparative Labour Law and Policy Journal Current Legal Problems Data Protection Ireland Journal Electronic Business Law Employee Relations European Journal of Work and Organizational Psychology European Labour Law Journal Florida Coastal Law Journal Georgetown Law Journal Hastings Race and Poverty Law Journal Hofstra Labor and Employment Law Journal Houston Law Review Industrial Law Journal Industrial Relations Journal Institute of Social and Economic Research, now the Sir Arthur Lewis Institute of Social and Economic Studies (SALISES) International and Comparative Law Quarterly International Data Privacy Law International Employment Relations Review International Journal of Comparative Labour Law and Industrial Relations International Journal of Law and Management International Labour Review Iowa Law Review Jamaica Law Journal Joint Trade Unions Research Development Centre Journal of Business Ethics Journal of Caribbean Affairs Management Journal of Criminal Law Journal of Eastern Caribbean Affairs Journal of Individual Employment Rights Journal of International Women’s Studies Journal of Transnational Labour and Policy The Labor Lawyer Lawyer of the Americas McGill Law Journal Managerial Law Modern Law Review Missouri Law Review New Law Journal List of Abbreviations Nordic J. Int’l L. N. Ky. L. Rev. OJLS OUCLJ Pub. L. S. Afr. J. Lab. Rel. SES Stell. L. R. U. Chi. L. Rev. UNBLJ UWI UWISLR WILJ Nordic Journal of International Law Northern Kentucky Law Review Oxford Journal of Legal Studies Oxford University Commonwealth Law Journal Public Law South African Journal of Labour Relations Social and Economic Studies Stellenbosch Law Review University of Chicago Law Review University of New Brunswick Law Journal University of the West Indies UWI Student Law Review West Indian Law Journal xli This page intentionally left blank CHAPTER 1 INTRODUCTION AND BACKGROUND TO COMMONWEALTH CARIBBEAN EMPLOYMENT AND LABOUR LAW INTRODUCTION Employment and labour law in the Commonwealth Caribbean, as in any other jurisdiction, constitutes a major part of its jurisprudence. The importance of the area should not be underestimated since it is an accepted fact that upwards of 40 per cent of an individual’s adult life is spent in some type of employment relationship.1 It is therefore unsurprising that a specific legal framework is required to regulate and administer various aspects of the employment relationship however described. The terminology ‘employment law’ and ‘labour law’ have been used interchangeably in some jurisdictions and by authors of legal literature within the field. In the purist English/British law tradition the lexis ‘labour law’ is said to ‘… extend from the individual to the collective, from the contract of employment to relations between the institutions of organised labour and capital and the conduct and resolution of conflicts between them’.2 However, increasingly it appears that the nomenclature ‘employment law’ has found more favour in the modern era and its usage in similar confines has become more extensive.3 This is possibly attributable to the fact that the former tends to conjure up the spectre of servitude and a labour market system thought best forgotten, especially from the Caribbean perspective with its antecedents of slavery. However, it is noteworthy that the terms have also been used in unitary contexts thereby being ascribed differing meanings in many countries. Thus ‘… in the American parlance the term “labor law” typically refers to the legal regulation of collective bargaining and the term “employment law” refers to work-related legal regulation regarding individual employees’.4 The rationale for this dichotomy could be the idea that the philosophy of labour law is inextricably linked to the collective representation of workers for the purpose of addressing the perceived disparate imbalances of power between themselves and the controllers of capital.5 As such it placed greater emphasis on regulating the relationship between unions and employers, with references to the individual relationship being, for the most part, relegated to the law of contract. On the converse, employment law could be viewed as a more neutral term, being more evenly balanced and addressing legal issues relating to all the factors of production. For the purpose of convenience in this work, the two terms will be used to delineate separate and generally distinct spheres of the law. Labour law will connote the collective sphere, which 1 2 3 4 5 Bell, A. (2006) Employment Law (2nd Ed.) London: Sweet and Maxwell, p. 2. Deakin, S. and Morris, G. (2012) Labour Law (6th Ed.) Hart Publishing, p. 1; see also Antoine, R.-M. B. (2010-2011) ‘Rethinking Labor Law in the New Commonwealth Caribbean Economy: A Framework for Change’, 32 Comp. Labour Law and Policy Journal 343, where she defines the term in a similar fashion. Smith, I. et al. (2010) Smith and Woods Employment Law (10th Ed.) Oxford: Oxford University Press p. 3 opines that for all intents and purposes employment law is split into three areas: industrial safety law, individual employment law and employment (industrial) relations. See Roehling, M. et al. (2008) ‘Foundations for Understanding the Legal Environment of HRM in a Global Context’ p. 72 in The Routledge Companion to Strategic Human Resource Management; see also Meiners, R. et al. (2012) The Legal Environment of Business (11th Ed.) South Western: Cengage Learning, p. 481 ‘In legal circles the term “labour law” relates to laws dealing with unions while “employment law’” refers to laws governing all employees or just non union employees’. See the general views of Lord Wedderburn (1986) The Worker and the Law (3rd Ed.) Pelican Books, p. 8; Kahn Freund, O. (1954) ‘Legal Framework’ p. 49 in The System of Industrial Relations In Britain Flanders, A. and Clegg, H.A. (Eds) Blackwell Publishing, ‘...the relation between employer and employee is one of subordination’. 2 Commonwealth Caribbean Employment and Labour Law is sometimes otherwise described as ‘industrial relations law’,6 which principally regulates the relationship between trade unions, their members, employers and governmentally-instituted systems which touch and concern their operations. Employment law on the other hand will be used to denote the legal aspects of the individual relationship between workers/employees and their employers, which are hinged on the existence of a contract of employment and to the extent that the collective sphere impacts this narrow construct. Critically also, governmental intervention in these contracts, typified by minimum standard setting legislation7 such as redundancy, unfair dismissal and maternity protection, exemplifying changes that have incrementally been imputed (thereby providing positive rights to individual workers), will also be explored in this realm. The fact that this modality is utilised should not by any means suggest that the two categorisations are far removed from each other, operating in blissful oblivion of either’s existence. There would be nothing further from the truth as, by necessity, many of the benefits derived from the agitation and advocacy of actors on the labour law stage are (for the most part) unenforceable within this remit. Rather the role of the collective representative is to act for the benefit of individuals who are then empowered to pursue the advantages so gained within the employment law arena.8 The exception occurs in jurisdictions where collective agreements are directly legitimised and made enforceable through statutory prescription. Outside of these provisions employment law is inescapable if an individual is to receive any palpable benefits. RATIONALE AND ORGANISATION OF THIS BOOK This book examines labour and employment law from the vantage point of the jurisprudence of the Commonwealth Caribbean. By this we mean the former colonies of the United Kingdom (UK) that are now independent nations and members of the Caribbean Community (CARICOM).9 In certain specific subject matter, greater emphasis will be placed on those countries having more developed adjudicatory and administrative structures, which therefore provide substantial jurisprudential material amenable to discourse and analysis.10 Additionally, where particular territories operate a distinctive system or appear to be on the cusp of groundbreaking developments, they will be explored to provide comparative views for discussion.11 Where appropriate, references will also be made to the remaining British dependencies that are Associate members12 of CARICOM because of their common heritage and somewhat integrated legal systems achieved via the utilisation of the same appellate courts. We take this approach since the governments of all these countries have in principle committed themselves to the ideal of an economic union through the progressive realisation of the CARICOM single market and economy, which should ultimately result in the full integration of the region’s 6 7 8 9 10 11 12 See Barrow, C. (2002) Industrial Relations Law (2nd Ed.) Cavendish Publishing, Chapter 1 for further discussion of this term. This intervention has been termed the ‘floor of rights’ by Lord Wedderburn (1986) The Worker and the Law (3rd Ed.) Pelican Books, pp. 6 & 13. See dicta of the court in BITU v Johnson (1961) 4 WIR 351 which confirmed this concept. Antigua and Barbuda, The Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Trinidad and Tobago. Although not an independent state Montserrat is a full member of CARICOM. We exclude Haiti and Suriname from this work as the legal systems and experiences there are substantially different from those under review and comparisons, though important, are outside the scope of this work. Specifically Antigua and Barbuda, the Bahamas, Jamaica, and Trinidad and Tobago. Particularly St. Lucia and Barbados. Anguilla, Bermuda, British Virgin Islands, Turks and Caicos Islands. Chapter 1: Introduction and Background To Commonwealth Caribbean 3 labour markets. In anticipation of the fulfilment of this goal, and indeed the current state of the Caribbean’s development, it is opportune that this modality is utilised. Choosing to produce a work of such wide reach undeniably presents some difficulty, including but not limited to the levels of economic development, the culture and customs of each nation, as well as the political environment that exists at any point within each state. It is no less significant that some regional legislation, as well as critical decided cases which interpret their application, was difficult to access because of the challenges of law reporting generally and particularly in the employment and labour law arena.13 Neither were there many indigenous current legal publications in the area that could assist in distilling the principles being explored, again evincing the heavy reliance placed on foreign materials14 that did not necessarily conform with the region’s distinctive industrial relations and legal systems. This publication therefore presents a unique opportunity to explore the areas of congruence within the jurisdictions as well as those of divergence with a view at the very least to enhancing awareness. At best the effort should hasten the process of harmonisation of labour laws, which has already been admirably initiated by CARICOM15 in collaboration with the International Labour Organisation (ILO),16 but sadly not pursued with gusto by the majority of regional governments.17 At the outset it should also be noted that the book will not frontally or in any amount of detail address the interesting and growing area of discrimination in employment. Although certain aspects such as sexual harassment and maternity protection will be examined, the intention at this stage is to concentrate on what we consider to be core areas of the subject, thereby setting the stage for greater scholarship in this and other aspects of the field in the short term. Other topics such as social security and industrial relations simpliciter, though closely related to our field of study, were also not accorded full treatment in this work. Recognising the unique and eclectic nature of the subject in regional jurisdictions, the remainder of this chapter will be spent exploring the historical legacy supporting the existing systems that are operational. Subsequently we postulate on the contemporary position in light of global imperatives. Thereafter, our focus in the ensuing five chapters will be on the employment law aspects of the book. In Chapter 2 the spotlight moves to the various sources of employment and labour law and the institutions that function within the arena. Chapters 3 and 4 examine the legal basis underlying the establishment of the individual employment relationship and the formulation of its constituent terms and conditions. Chapters 5 and 6 review the various methods of concluding the employment relationship through the prism of the common law, as well as the statutory interventions that regulate dismissals in particular circumstances. 13 14 15 16 17 See discussion in Newton, V. (1978) ‘Historical Perspective of Law Reporting in the English Speaking Caribbean’ WILJ pp. 37-44; Barnett, L. and Anderson, N. (2000) ‘Law Reporting an Essential Legal Tool’ 25 WILJ 1-18; Happily the matter is being addressed to some degree by the CARILAW database available from the UWI Law Faculty and the impressive judgement electronic database of the Trinidad and Tobago Industrial Court. However, coverage of the Antigua and Barbuda Industrial Court and Jamaica’s Industrial Dispute Tribunal is patchy at best. See insightful discussion in Randle, I. (2009) ‘Swimming Against the Tide: The Challenge of Legal Publishing in the English Speaking Caribbean’ 37 International Journal of Legal Information pp. 204-209, where he laments the ‘mesmerising evidence of the English legal tradition... and the almost slavish allegiance ... to the perceived superiority of UK published law materials’. The process was formally initiated by Antoine, R.-M. B. in The CARICOM Labour Law Harmonisation Report 1992 (Faculty of Law University of the West Indies, Cave Hill, unpublished), which was commissioned by CARICOM and augmented by the drafting of four Model laws in the areas of termination of employment, registration, status and recognition of trade unions and employers’ organisations, equality of opportunity and non-discrimination in employment and occupational safety and health and the working environment. See www.ilocarib.org.tt/projects/labour_legislation/ for further details. See Antoine, R.-M. B. in The Changing Face of Labour: A Legal Overview (paper presented at the 1st Caribbean Labour Conference University of the West Indies, Mona, 2-5 April, 2003) where she bemoans that fact that regional governments are merely paying lip service to this pivotal exercise. 4 Commonwealth Caribbean Employment and Labour Law In Chapter 7 we will transition to the labour law outlook by viewing the legal framework for the establishment of trade unions and their substantive operations. Chapter 8 is devoted to the consideration of industrial action in all its facets. Chapter 9 confronts certain emerging issues that are increasingly being visited upon the employment and labour law landscape with a view to enhancing awareness of their existence and providing recommendations to address these concerns. All the chapters are infused with references to international instruments and dogma that provide tacit and sometimes direct guidance on the operations of relevant principles being discussed. Where appropriate, the legal system operating in the UK is also referenced as a basis for discussions. In light of the deficiencies of accessing reference materials revealed in the preparation of this work Chapters 10 and 11 provide a digest compendium of seminal cases and selected excerpts of statutes from various Caribbean countries. HISTORICAL UNDERPINNINGS One is compelled to agree with Lord Wedderburn that ‘… the language of a labour law system can only be learned from its social history and above all, the history of its labour movement.’18 Deakin and Morris’s thesis that ‘… an appreciation of the historical development of the [employment and] labour law system is essential to the understanding of its current form and content’19 is equally applicable to the circumstances of the Commonwealth Caribbean. In reviewing the regional historical panorama, one must be extremely cognisant of the antecedence of the worker/employer relationships rooted in its ignoble beginnings of slavery, which was the driver of the sugar economy.20 The common law contractual concept was virtually non-existent as the ‘workers’ had no legal rights since they were considered as property. Prior to 1842, the legal provisions prescribing work obligations were contained in Slave Codes21 that stipulated steps slave owners could take to ensure their captive workforce remained submissive, including draconian disciplinary measures such as whippings and imprisonment. When the colonial powers passed the Slavery Abolition Act (1833)22 their intent was to provide a legislative framework to facilitate the slave’s gradual transition from the status of ‘chattel to being legally free workers’23 through an apprenticeship system. The Act was, however, nothing more than an ‘employers’ charter’, as it left to the colonial legislators the task of enacting detailed laws to regulate this process. The plantocracy held controlling interest in these legislative assemblies, thus unsurprisingly little or nothing was done to improve the laws governing the employment rights of ex-slaves. Between 1834 and 1840, laws were enacted to formalise the employer/employee relationship where labour was exchanged for lodging and supplies with minimal wages, but they proved inadequate in regulating the employment terms and conditions24 of workers. This, coupled with ex-slaves’ ingrained distrust of the planter class, saw them eschewing continued labour on sugar estates, especially in the larger colonies 18 19 20 21 22 23 24 Lord Wedderburn (1991) ‘The Social Charter in Britain – Labour Law and Labour Courts’ 54 MLR 1 p. 7. Deakin, S. and Morris, G. (2012) Labour Law (6th Ed.) Hart Publishing, p. 4. See the comprehensive account in Green, W. (1976) British Slave Emancipation – The Sugar Colonies and the Great Experiment 1830-1865 Oxford: Clarendon Press. See generally Turner, M. (2004) ‘The British Caribbean, 1823-1838 – The Transition from Slave to Free Legal Status’ p. 303 et seq. in Hay, D. Masters, Servants and Magistrates in Britain and the Empire, 15621955 North Carolina, US: UNC Press. 3 & 4 Will. IV c. 73. Turner, M. (2004) ‘The British Caribbean, 1823-1838: The Transition from Slave to Free Legal Status’ p. 305 in Hay, D. Masters, Servants and Magistrates in Britain and the Empire, 1562-1955 North Carolina, US: UNC Press. Ibid. p. 316. Chapter 1: Introduction and Background To Commonwealth Caribbean 5 of Jamaica, Trinidad and Tobago and Guyana, in deference to cultivating small holdings in the countryside and accepting employment on the estates only as a last resort. In the smaller colonies of the Leeward and Windward Islands the situation was marginally different because, for the most part, available land was under sugar cultivation, so the workers were largely unable to establish settlements outside of the estates and therefore this meant that labour supply would be assured.25 Consequently Antigua made the decision not to undertake apprenticeship and immediately transitioned into wage/work relationships between the former slaves and their former masters as the view was held that this economic system could be maintained.26 In the other countries of the Eastern Caribbean, although the views of the workers were similar, they had little choice but to remain in employment on the estates at menial wages and substandard living conditions or alternatively seek to emigrate to the larger colonies in hopes of better employment and social prospects.27 Soon the economic utility of operating in the free market was recognised by the planters, as it was indeed less expensive to pay the ex-slaves wages while leaving them to fend for their other amenities, a cost they previously had to absorb. Indeed Augier et al., speaking of the interim regime, noted ‘In the more densely populated islands no party found any further use for the system of apprenticeship; in the more sparsely populated areas it became impossible to maintain apprenticeship when the others gave it up’.28 Thus by 1838 the interim regime died a natural death throughout the region. Precipitated by the demise of the apprenticeship system, various permutations of the Master and Servants Acts29 were passed or revamped in most jurisdictions, modelled largely on a UK30 equivalent with only slight or no variations. These Acts, which substantively dealt with form, duration and termination of employment contracts along with payment of wages, ‘… sought to provide employers with a predictable, tractable, and relatively inexpensive supply of laborers’.31 The Jamaican version was described by Manley as one which ‘really served to confirm the power of the employer to dismiss arbitrarily without legal let or hindrance’32 and Bolland concurred, stating that in all colonies it served to ‘… control and discipline the legally free but dependent workers by threatening them with imprisonment, often at hard labour for minor infringements of their labour contracts.’33 With the exception of these Master and Servant Acts, which governed individual employment relationships, it is noteworthy that the only other statutory interventions within the region addressed immigration, emigration and recruitment of workers. In Trinidad and Tobago the Immigration Ordinance34 (which was largely representative of the position in the larger colonies of Guyana and Jamaica) was enacted with a view to regulating the terms and conditions of employment for indentured labourers, mostly from India and China, who were engaged to augment the workforce after the dissolution of the slavery regime. Thomas indicates that the 25 26 27 28 29 30 31 32 33 34 See general discussion in Hall, D. (1971) Five of the Leewards 1834-1870 Caribbean Universities Press/ Ginn and Company Limited, pp. 32-50 and Augier, F.R. et al. (1960) The Making of the West Indies London: Longman Press, pp. 182-194. Antigua Contracts Act 1835. See Hall, D. (1971) Five of the Leewards 1834-1870 Caribbean Universities Press/Ginn and Company Limited, p. 41, which shows the steady increase in worker migratory patterns between 1839-1846. Augier, F.R. et al. (1960) The Making of the West Indies Longman Press (1960), p. 185. Jamaica (1842), Barbados (1840), Trinidad and Tobago (1846). UK Master and Servant Act (1823) 4 Geo. IV c. 34. Smith, B. P. (2005) ‘Imperial Borrowing: The Law of Master and Servant’ Comp. Labor Law & Policy Journal, Vol. 25, 447, p. 452. Manley, M. (1991) A Voice at the Workplace, Washington, DC: Howard University Press, p. 187. Bolland, N. (2001) The Politics of Labour in the British Caribbean, Kingston, Jamaica: Ian Randle Publishers, p. 10. No. 1 of 1847; this Ordinance was reviewed and consolidated several times in the ensuing years - see the discussion in Thomas, R. D. (1989) The Development of Labour Law in Trinidad and Tobago, Wellesley, MA: Calaloux Publications, p. 13. 6 Commonwealth Caribbean Employment and Labour Law Ordinance, although containing some protective provisions, had as its principal objective increasing the available and reliable labour supply on the sugar estates.35 The legislation was very similar in principle to the Master and Servant Acts in that workers were bound to provide paid labour to the estate that financed their passage to the Caribbean for a specific time frame, breach of which was actionable via criminal sanctions of fines and imprisonment. In essence the ideal of free labour market operations was really a fiction as the indentured labourer was practically in almost the same position as the newly-freed slave.36 The only other statutes of significance enacted during this period that affected the labour arena were in the form of Trade Union Acts, the first of which was promulgated in Jamaica in 1919. However, this law was of hollow effect for, while legitimising the existence of trade unions, it lacked provisions allowing peaceful picketing and protection from the civil liability in tort consequent on losses incurred by industrial action. In essence, the traditional weapons usually available to enhance trade unions’ operations were circumscribed. St. Vincent and the Grenadines37 and Trinidad and Tobago passed similar legislation in 1933.38 Guyana received its Trade Union Ordinance in 192139 which, in contrast to the other countries, did include provisions for statutory immunity against civil proceedings emanating from strikes. Consequent upon this deficient legal framework, it was perhaps inevitable that a dysfunctional system developed where subservient workers were subject to abuse by the dominant employer class. This led to the development of labour movements that piloted spontaneous and mostly violent protests throughout the region during the 1930s culminating in 1938.40 These occurrences prompted the imperial powers to commission two inquiries into employment and social conditions in the Commonwealth Caribbean Colonies.41 The more celebrated Moyne Commission visited each colony, heard evidence, conducted site visits and assessed prevailing socio-economic and labour conditions. The Commission concluded that the nonexistence of a working industrial relations framework occasioned the state of affairs. Its Report recommended that laws be enacted to ‘… protect trade unions from actions for damages consequent on strikes, the legalisation of peaceful picketing and compulsory registration of trade unions’.42 Another central recommendation was that the government should support the establishment of institutions to regulate labour relations, with collective bargaining between trade unions and employers expected to play pivotal roles. Moyne also urged the colonial government to regulate wages and conditions of employment until ‘trade unions … developed to the point where they can play a decisive part in [collective bargaining]’.43 35 36 37 38 39 40 41 42 43 Thomas, R. D. (1989) The Development of Labour Law in Trinidad and Tobago, Wellesley, MA: Calaloux Publications, p. 13. See further general discussion in Brereton, B. (1981) A History of Modern Trinidad 1783-1962, London: Heinemann. Henry, Z. (1972) Labour Relations and Industrial Conflict in Caribbean Countries (1st Ed.), Trinidad: Columbus Publishers, p. 36. Trade Union Ordinance - see Thomas R. D. (1989) The Development of Labour Law in Trinidad and Tobago, Wellesley, MA: Calaloux Publications, p. 20. Henry, Z. (1972) Labour Relations and Industrial Conflict in Caribbean Countries (1st Ed.), Trinidad: Columbus Publishers, p. 34 - it was thought that Guyana was a more docile colony, better suited to handle the legal privileges afforded by picketing and civil immunity. See the excellent exposé on the occurrences in Bolland, N. (2001) The Politics of Labour in the British Caribbean, Kingston, Jamaica: Ian Randle Publishers, Chapter 5, pp. 213-378 and Hart, R. (2002) Labour Rebellion of the 1930s in the British Caribbean Region Colonies, Caribbean Labour Solidarity and the Socialist History Society. Orde-Browne, Sir G. (1939) Labour Conditions in the West Indies Cmd. 6070 (HMSO); Moyne, Lord (1945) West India Royal Commission, Cmd 6174 June (HMSO). [Cmd. 6174] Recommendations of the West India Royal Commission, 1938-39 Recommendation 10(a). [Cmd. 6174] Recommendations of the West India Royal Commission, 1938-39 Recommendation 10(b). Chapter 1: Introduction and Background To Commonwealth Caribbean 7 The genesis of these proposals was founded in the British non-interventionist tradition of collective laissez faire advanced by the venerable doyen of labour law, Otto Kahn Freund.44 This theory advocated ‘… free play of the collective forces of society with limited intervention of the law confined to those marginal areas in which the disparity of these forces (organised labour and organised management) [was] so great as to prevent the successful operation of the … negotiating machinery’.45 Based on this framework the law was said to fall into three categories largely dependent on the role it was to perform. Thus protective law or regulatory provisions related to the rules that governed the terms and conditions of employment of individual workers, regardless of whether they held membership in any collective body. Laws that were designed to carry out a restrictive function encompassed rules to control industrial conflict in light of the impact industrial action could have on the economy. Finally, laws that had an auxiliary function were concerned with the establishment, stimulation and development of the collective bargaining process.46 The rationale behind Kahn Freund’s hypothesis was that wholesale legal intervention was not only unnecessary but also undesirable as collective bargaining could effectively protect workers, and the rights derived by this means were freely negotiated thereby ensuring that government possessed no basis on which to interfere or withhold the same. Moreover, the view was held that this methodology allowed the parties the flexibility to review their agreements and quickly respond to changing circumstances.47 In furtherance of these precepts Moyne’s recommendations were actioned with protective laws being introduced in the region to regulate working conditions (for example, the Factories Ordinances,48 Employment of Women and Children Ordinances49 and Labour Officers/ Department Ordinances),50 while others were passed to institute minimum standards in employment (for example, Minimum Wages Ordinances,51 Workmen Compensation Ordinances52 and Holidays with Pay Ordinances).53 Restrictive type laws were enacted to develop an effective industrial relations framework by addressing the legitimate objects of trade unionism (for example, new or upgraded Trade Union Laws)54 while concurrently assisting the growth and development of collective bargaining as an auxiliary function (Trade Disputes (Arbitration and Inquiry) Laws).55 The Trade Disputes laws provided for the establishment of Arbitration Tribunals and/or Boards of Inquiry by colonial governments but these were often stymied by the need for consensus for references to be made. They also suffered from a lack of enforceability as the implementation of awards or recommendations was impossible without the consent of the parties to a trade dispute. Essentially, this statutory framework served to 44 45 46 47 48 49 50 51 52 53 54 55 Kahn Freund, O. (1954) ‘Legal Framework’ p. 42 in The System of Industrial Relations In Britain, Flanders, A. and Clegg, H. A. (Eds), Oxford: Blackwell Publishing. Kahn Freund, O. (1959) ‘Labour Law’ pp. 223-224 in Ginsberg, M. (Ed.) Law and Opinion in England in the Twentieth Century. London: Stevens and Sons. See discussion in Kahn Freund, O. (1977) Labour and the Law (2nd Ed.). London: Stevens and Sons. See discussion in Davies, A.C.L. (2004) Perspectives on Labour Law (1st Ed.) Cambridge: Cambridge University Press, p. 4. Factories Ordinance Trinidad (1948), Factories Law Jamaica (1943), Factories Ordinance Belize (1943). Children Ordinance Trinidad and Tobago (1925), Employment of Women, Young Persons and Children Ordinance Guyana (1933). Labour Officers (Powers) Law Jamaica (1943), Labour Department Ordinance Barbados (1943). Minimum Wages (Fixing) Ordinance Trinidad (1935), Minimum Wage Law Jamaica (1938). Workmen’s Compensation Ordinance Antigua (1957), Workmen’s Compensation Law Jamaica (1938). Barbados (1952), Jamaica (1947). Jamaica (1940), Barbados (1939), Trade Union Ordinance St. Lucia (1948), St. Vincent and the Grenadines (1943), Belize (1941). Trinidad and Tobago (1938), Jamaica (1939), Barbados (1939), St. Vincent and the Grenadines (1941). 8 Commonwealth Caribbean Employment and Labour Law create a voluntaristic industrial relations system,56 which did not effectively address the chronic challenges being faced by the working class within the colonies. These new laws were, for the most part, replicas of their UK derivatives, transplanted into a completely alien socio-economic regime. An examination of these statutes compels one to agree with Chase in declaring that they were ‘… superimposed upon us, and whether they synchronised with our ways and customs or were suitable to our conditions was to the colonial power an irrelevancy with which it need not have to bother.’57 Though they provided welcome interventions in the hitherto inadequate labour relations framework, they were still obviously skewed in favour of the owners of capital. When viewed in the light of the continued existence and operation of Master and Servant Laws,58 workers were only slightly better off than before their introduction, especially where there was no strong trade union movement to advocate on their behalf. There was, however, some exception to this generalisation in Barbados where the economic and social realities, combined with the workplace culture, militated against rampant abuse of employer power.59 One deviation from the strong voluntaristic approach that existed came in the form of ‘Essential Services’ legislation where strikes and lockouts in industries designated as essential were prohibited, except where a specified procedure had been followed and yielded no results. The first such legislation was enacted in Jamaica as the Public Utilities Undertaking and Public Services Arbitration Law in 1952 and, thereafter, similar laws were passed throughout the Caribbean whereby reported labour disputes in sectors such as water, electricity, health, sanitation and fire could be referred to compulsory arbitration by a Tribunal.60 Notwithstanding this power given to the government, the law also made provisions for the utilisation of other means of dispute resolution and reference to the Tribunal was to be a last resort when these alternatives were unsuccessful or not addressed with expediency. Thus, the 1930s and 1940s represented a watershed for legislative expansion and trade union development, and also heralded the birth of a militant thrust by colonies towards internal selfgovernment leading to eventual political independence from Britain.61 To some degree the issues of labour and industrial relations were synonymous with constitutional and political reform. Thus commencing with limited suffrage, the colonies transitioned to universal adult suffrage62 and then experimented with political union in the form of the West Indian Federation. Ultimately they established individual nation states anchored in written constitutions, which for the most part guaranteed some specific rights within the employment and labour field. Thereafter Commonwealth Caribbean countries began to turn the tide of transplanted legislation that had little recognition of their indigenous socio-economic issues and developmental challenges. In the 1960s, Jamaica was the first country to gain political independence,63 followed almost immediately by Trinidad and Tobago.64 Other countries followed suit during the ensuing 56 57 58 59 60 61 62 63 64 See enlightening expose of the subject by Adams, R., Cowell, N. and Singh, G. (1999) ‘The Making of Industrial Relations in the Commonwealth Caribbean’ pp. 155-184 in Kuruvilla, S. and Mundell, B. (Eds) Industrial Relations in the Third World, Jai Press Inc. Chase, A. (1974) Industrial Law. Autoprint Guyana Limited, p. 1. The only change was that most of these Acts were amended to remove the criminal sanctions for breach of the employment contracts. See Codrington, M. (1990) ‘Labour Relations in Barbados: A Government View’ p. 43 in Blenk, W. (Ed.) Labour Relations in Caribbean Countries, ILO Publication. See further discussion in Chapter 8. See Antoine, R-M. B. (1999) One Hundred Years of Labour Law, Guest Feature Paper Special Millennium Issue CARICOM Secretariat (Guyana), pp. 46-52. Buddan, R. (2004) ‘Universal Adult Suffrage in Jamaica and the Caribbean since 1944’ Social and Economic Studies 54:4, pp. 135-162. 6 August 1962. 31 August 1962. Chapter 1: Introduction and Background To Commonwealth Caribbean 9 decades,65 with the most recent being St. Kitts and Nevis, which gained self-government in 1983. Political independence ushered in the next wave of major legislative initiatives in the Commonwealth Caribbean where the corpus of employment and labour law was progressively examined with a view to making them more apt to local social and political conditions, while keeping in mind economic advancement for their fledgling economies. On the collective front it was perhaps inevitable that tensions would soon develop between forms of representative action pursued by workers and the government policies aimed at putting national fiscal conditions on firm footing. In Trinidad and Tobago a deleterious industrial relations climate riddled with wildcat strikes, which in turn appeared to destabilise the economy,66 caused that country to hastily enact the Industrial Stabilisation Act67 in 1965. The Act sought generally to foster industrial peace through various methods. Notwithstanding its rocky commencement, the Act met its intended objective of stabilising the industrial relations climate to some degree, before being revamped as the Industrial Relations Act in 1972, which is still currently effective. The introduction of this regime decisively moved the industrial relations system away from its previous voluntary ethos. Similarly, in 1975 after much debate and controversy, Jamaica promulgated the Labour Relations and Industrial Disputes Act 1975,68 which was designed to inter alia address the vexed areas of trade union recognition and the right to join trade unions, while concurrently establishing a permanent compulsory arbitration tribunal having the jurisdiction to examine cases of unjustifiable dismissal and where appropriate ordering reinstatement.69 However, it maintained certain provisions from previous legislation that addressed the settlement of industrial disputes and proscribing the right to strike outside of the prior action being taken by government. The intent was undoubtedly to institute a regime where industrial relations peace was assured by legislated provisions when required, yet allowing the parties the flexibility to utilise a voluntary framework to settle their disputes in a manner acceptable to them at first instance. Barbados, however, continues to operate a totally voluntary system of industrial relations law with virtually little or no change in their Trade Dispute (Arbitration and Inquiry) Act 1939. Although this state of affairs has been criticised from time to time,70 it remains the bastion of addressing issues in the collective sphere in that jurisdiction. Many of the other territories have, however, established compulsory arbitrations systems buttressed by legislative intervention.71 As will be fully discussed in Chapter 2, the near total reliance on the collective laissez faire doctrine began to be questioned and indeed was incrementally recoiled against. Dukes opined that the weakness of the theory rested in its failure to make adequate provisions for the protection of the public interest.72 Increasingly therefore governments sought to ensure that the rights 65 66 67 68 69 70 71 72 Barbados and Guyana (1966), The Bahamas (1973), Grenada (1974), Dominica (1978), St. Vincent and the Grenadines and St. Lucia (1979), Belize and Antigua (1981). See Thomas, R. (1989) The Development of Labour Law in Trinidad and Tobago Wellesley, MA: Calaloux Publications, Ch. 4, p. 41 et seq.; Stone, D.H.F. (1969) The System of Industrial Relations in Jamaica and Trinidad and Tobago, Mimeo – UWI, p. 140 et seq. Repealing the Trade Disputes (Arbitration and Enquiry) Ordinance 1938. This Act repealed and amalgamated certain provisions of the Trade Disputes (Arbitration and Enquiry) Law (1939) Public Utilities Undertaking and Public Service Arbitration Law (1952). See also discussion in Manley, M. (1991) A Voice at the Workplace, Washington, DC: Howard University Press, p. 233 et seq. See Stone, D. H. F. (1972) The System of Industrial Relations in Jamaica, Mimeo – UWI, p. 79 et seq.; Gershenfeld, W. J. (1974) Compulsory Arbitration in Jamaica, Institute of Social and Economic Research, p. 59 et seq.; Chaudhary, R. et al. (1976) An Appraisal of the Jamaican Labour Relations and Industrial Disputes Act, Lawyer of the Americas: Vol. 8, pp. 36-59. See Alexis, F. (1982) ‘The Labour Movement and the Law in Barbados’, pp. 23-6 in Commonwealth Caribbean Legal Essays, Barbados: UWI Law Faculty, Cave Hill. See further discussions in Chapters 2 and 8. Dukes, R. (2009) ‘Otto Kahn-Freund and Collective Laissez-Faire: An Edifice without a Keystone?’ 72 MLR, pp. 220-246. 10 Commonwealth Caribbean Employment and Labour Law of individual workers were being effectively protected. It was also recognised that the encouragement of collective bargaining came at the expense of those individual workers who were unable to access union representation.73 In the Commonwealth Caribbean this realisation was not easily accepted since, at least in the nascent stages of their development, governments were equated with the labour movement because of the symbiotic relationship between the labour struggle and the realisation of independent self-government. In fact, prior to the 1970s, it was thought in at least one jurisdiction that legislative priority should be funnelled elsewhere in developing the emerging nation because ‘… the union movement could look after the workers’.74 Nevertheless, during that decade and continuing thereafter, Caribbean nation states progressively began enacting statutes that expanded the reach of the primitive protective legislation. Thus, rights such as maternity leave and minimum periods of notice on termination of employment, redundancy payments on the loss of jobs in particular circumstances and perhaps the most revolutionary, the protection against unfair dismissal, were legislated. Advocates of collective laissez faire argued that such statutory interventions merely provided a floor of rights upon which the collective mechanism could then proceed to negotiate more expansive benefits.75 However, this argument did not take into account the fact that for the non-unionised these floors were in effect ceilings, which more often than not proved detrimental for these workers. While governments undertook this paternalistic role towards its citizens, the political regimes in the Caribbean concurrently became more acutely aware of their additional role as the stabiliser of the economy. Many times this brought them into sharp conflict with the union movement.76 This discord was manifested both from the macro fiscal policy perspective as well as at the micro management level since unions were also the workers’ representative in circumstances where governments were usually the country’s largest employer. This at times created political crisis, especially where there were disagreements between unions, employers and governments regarding what direction countries should take in seeking to advance its economic position. The pushback by unions in resorting to industrial action has been viewed by many as attempting to undermine the right of the State machinery to manage the affairs of the country for the benefit of all its constituents, which would be an untenable concession.77 The desire of Caribbean governments to aggressively pursue and establish healthy economies was impacted by the turbulence in the world economic order during the 1970s and 1980s. The price of crude oil, the main source of energy, increased dramatically in the wake of an embargo placed on production by the oil producing countries, causing the ripple effect of inflation all across the globe. The fledgling Caribbean nations were no less affected, with their balance of payments deficits skyrocketing and, coupled with no commensurate increases in domestic revenue being received from its traditional commodities such as sugar and other agricultural products, this created conditions of economic volatility. This forced many States to undertake structural adjustment programmes with multilateral lending agencies such as the International Monetary Fund (IMF) to meet their international debt obligations. With these strictures came the imposition of wage freezes, wage cuts, retrenchments, loss of governmental 73 74 75 76 77 See Morris, R. L. (2002) Trade Union Administration: A Caribbean Workers’ Education Guide, ILO Publications, p. 3 - though dated, this provides some statistics on union representation throughout the region. Manley, M. (1991) A Voice at the Workplace, Washington, DC: Howard University Press, p. 210 - speaking of the Jamaican situation. See Lord Wedderburn (1986) The Worker and the Law (3rd Ed.), London: Pelican Books, p. 6. See discussion in Nurse, L. (1992) Trade Unionism and Industrial Relations in the Commonwealth Caribbean (1st Ed.), Westport: CT: Greenwood Press, p. 82. As in the case of strikers in Dominica and Barbados who challenged the government’s policy as dictated by the structural adjustment programmes of the IMF, see Antoine, R.-M. B. (2003) in The Changing Face of Labour: A Legal Overview, paper presented at the 1st Caribbean Labour Conference University of the West Indies, Mona, 2-5 April. Chapter 1: Introduction and Background To Commonwealth Caribbean 11 subsidies and devaluation of national currencies.78 This externally impelled regulation of labour was sometimes enforced by the amendments of labour legislation to ensure compliance,79 much to the chagrin of the union movement. The ultimate effect of these interventions was sometimes the outright deterioration of working conditions and a watering down of employment rights. Another important factor underlying the degradation of employee rights was the decline in union membership and the corollary reduction in worker representation. Union membership has waned in part because of the loss of jobs in the manufacturing sectors occasioned by the deleterious effects of the economic scenarios outlined. Additionally, structural adjustment programmes negatively impacted conventional patterns of work, thereby virtually entrenching atypical informal employment relationships as typified by the part-time, agency and casual employee who were less likely to become unionised. Such a position would naturally see these workers not being able to gain representation through the collective bargaining process.80 Despite the relative lull in economic upheavals in the 1990s,81 it is necessary to recognise that since the commencement of the new millennium the phenomenon of globalisation has squarely become the essential platform upon which a wide gamut of business activities is now centred. There is substance to the oft-used cliché that the world has become a global village and the Caribbean cannot ignore the developments around them. With the wide-scale expansion of world trade under the watchful eye of the World Trade Organisation (WTO),82 customary commercial relationships between Caribbean countries and their major European trading partners have been severely affected. Preferential access to markets83 with guaranteed prices for the flagship products of sugar and bananas84 has now been withdrawn in the name of free trade, thereby sounding a virtual death knell for these industries that are unable to effectively compete in the international marketplace. Additionally, the fiscal wellbeing of many countries experienced challenges when other important labour-intensive industries such as tourism and bauxite mining were negatively impacted by the terrorist attacks of 2001 and the global economic recession that descended in 2008. The economic issues are sometimes exacerbated by the region’s vulnerability to environmental hazards such as hurricanes, which have the capability of decimating agricultural industries and other physical infrastructure pivotal to their development. This state of affairs left some CARICOM States scrambling in many 78 79 80 81 82 83 84 See discussion in Antoine, R.-M. B. (1999) One Hundred Years of Labour Law, Guest Feature Paper Special Millennium Issue CARICOM Secretariat (Guyana), pp. 46-52 at 51. For example, in 1983 and 1986 amendments were made to Jamaica’s LRIDA to allow applications to the Supreme Court for ex parte injunctions to curtail threatened or actual industrial action, and allowing the Minister of Labour to refer matters to the IDT on his own initiative, regardless of whether attempts were made by the parties to settle the dispute, if he considered the matter ‘urgent or exceptional’. It should be recognised that at the time of the enactment the country was in the throes of economic decline and external forces (the IMF) and their structural adjustment programmes brought pressure to bear on the administration to curb industrial strife. The legislation was therefore being used as an instrument to assist in achieving macroeconomic stability. See Bacchus, R. (1999) ‘Globalisation and the Labour Agenda in Small Economies with Special Reference to Guyana’, 9 Caribbean Law Review 163 at p. 171 – he expresses the view that ‘employers will escape the net of legislative protection offered to full time employees’ with possible adverse effects. Hornbeck, J. F. (2008) CARICOM: Challenges and Opportunities for Caribbean Economic Integration, CRS Report of the United Stated Congress, January – the writer posits that there was a rebound in Caribbean economies in the early 1990s but thereafter a subsequent decline. The WTO, sometimes referred to as the world ‘trade police’. See discussion of the role of the WTO in employment and labour matters in Hepple, R. (2008) ‘The WTO as a mechanism for labour regulation’, pp. 161-178 in Bercusson, B. and Estlund, C. (Eds) Regulating Labour in the Wake of Globalisation: New Challenges New Institutions, Oxford: Hart Publishing. As typified by the previous Lomé Convention (1976) and The Cotonou Agreement (2000, revised 2005 and 2010). See Ahmed, B. (2001) The Impact of Globalisation on the Caribbean Sugar and Banana Industries Vol. 2, The Society for Caribbean Studies Annual Conference Papers, Courtman, S. (Ed.), available online at http://www.caribbeanstudies.org.uk/papers/2001/olv2p1.pdf. 12 Commonwealth Caribbean Employment and Labour Law instances to fund their budgets and operate their fragile economies. The need for capital injection forced Caribbean nations to literally open their borders with very few restrictions in the hope of wooing foreign direct investments to stimulate and strengthen their flagging and vulnerable economic systems. Of course this must, of necessity, have some impact on the labour market in each country. Regional States’ heavy dependence on offshore investments and service industries such as tourism has in effect belied the authority derived from sovereignty. In attempts to keep financiers engaged and happy they sometimes appear powerless to strongly impose or enforce existing employment and labour laws for fear that the much sought-after funding will be withdrawn. The effect of this is that Caribbean countries have at times felt compelled to retreat from long held and hard fought for employment and labour customs, practices and law in attempts to make themselves marketable in the international stage.85 Traditional forms of ‘permanent’ employment relationships have often been eschewed by overseas based employers (closely followed by local entities to ensure competitiveness) in favour of more informal, flexible, cheaper and transient modes of worker engagement. The resultant effect in many instances is that workers are marginalised and their basic human rights within the workplace setting are either ignored or sometimes greatly diminished. However, it should be noted that, as members of the International Labour Organisation (ILO), regional States are also bound by international labour standards as formulated by its Conventions and Recommendations and this should serve to guide them on what derogations to local laws should be allowed in the current dispensation. CONTEMPORARY ISSUES AND FUTURE DEVELOPMENTS The challenge faced by the stakeholders who rely on the machinations of employment and labour law in their daily economic activities is based on the fact that their relationships are never static: they are always in a state of flux. This truism is made all the more apparent because of the continuing influence of globalisation. As aptly enunciated by Bacchus, ‘… globalisation has not produced sustainable, democratic development either for business or labour in small developing economies’86 such as the jurisdictions under review. It is clear that globalisation cannot be evaded but, by creative and purposive means, it can most certainly be managed to claim the advantages and minimise the hindrances. It therefore behoves Commonwealth Caribbean States to collectively examine, through the instrumentality of CARICOM, the possible derivable benefits from the established global frameworks and then pursue them. By way of example it should be noted that currently Canada and CARICOM are in negotiations to ink a new trade deal.87 The potential benefit to member States in terms of inter alia greater access to export markets and provision of services is tremendous. However, as part of the discussions Canada is proposing that international labour standards be inserted into the agreement and thus be made binding on each country. In principle, though this move should ostensibly serve to institute minimum employment benchmarks, it is simultaneously contended that such provisions may also be used as non-tariff barriers to trade.88 This means that the 85 86 87 88 See discussion in Singh, A. (2004) Labour Standards And The Race To The Bottom: Rethinking Globalisation And Workers Rights From Developmental And Solidaristic Perspectives, 20 Oxford Review of Economic Policy pp. 85-104. Bacchus, R. (1999) ‘Globalisation and the labour agenda in small economies with special reference to Guyana’. 9 Caribbean Law Review 163 at p. 167. See information on the progress of these talks at http://crnm.org/. See Goolsarran, S. (2003) ‘Labour standards in the Caribbean Community (CARICOM) in an era of free trade’ pp. 52-65 at 62 in Reid, F. et al. (Eds) Trade and Labour Protection: Can the two be made to work together? Les Presses de l’Université Laval. Chapter 1: Introduction and Background To Commonwealth Caribbean 13 stronger trading partner can insist on the implementation of unattainable labour standards thereby restricting full access to the other’s labour market.89 This could prove disastrous especially for the smaller CARICOM countries and must therefore be delicately managed. In this regard, CARICOM has as its compass the already executed trade agreement with the European Union.90 There is still debate as to whether the much heralded benefits under this pact will in fact be actualised.91 Indeed Girvan’s92 view is that, by the shape and content of the EPA, instead of being a catalyst for development it will most likely lead to ‘… greater differentiation, fragmentation and loss of autonomy for the region’.93 Because of the relatively similar economic, political and social profile of the Commonwealth Caribbean nations, the formation of CARICOM and in principle the objectives of its operations should have assisted in combating the more harmful effects of globalisation. In theory a conglomerate of nations, however small, would be more likely to have one voice in the halls of power to enunciate their concerns and proffer suggestions on how they may be effectively addressed. However, as will be seen in Chapter 2, an innate insular approach by some States has stymied the responsible use of this option.94 CARICOM has a pivotal role to play, not only in buffering the possible adverse effects of globalisation for member States but also in taking steps to encourage the establishment of effective partnerships and alliances both regionally and nationally. By pooling resources and exploiting available expertise they can create stronger and more productive nations that are better able to compete internationally, with the positive knock-on effects for the corporate and individual citizen. One of the more fundamental precepts of CARICOM is the expectancy that there will eventually be a borderless region where the free movement of workers, capital and goods will become commonplace. However, the free movement of goods is a far different notion from free movement of people. There is exhaustion of rights once goods are exported but human capital remains problematic as people take with them their non-extinguishable inalienable human rights, which arguably include the right to decent work. As noted previously and which will be full discussed in Chapter 2, some member States appear recalcitrant in pursuing agreements made by their heads of governments in this regard for various reasons. The implications of this behaviour stand as a barrier to the full realisation of the accruable benefits, not just for individual workers seeking employment in another country but also to the economies of each 89 90 91 92 93 94 See Clarke, N. D. (1999) The Challenges of the New International Economic Order: International Trade, the Environment and Labour, University of the West Indies, Cave Hill/Central Bank Lecture Series paper presented on 13 July; See also Davies, A.C.L. (2004) Perspectives on Labour Law (1st Ed.), Cambridge: Cambridge University, Ch. 13. The Economic Partnership Agreement (EPA) was negotiated with the wider grouping of CARIFORUM which also includes Cuba and the Dominican Republic in 2008. It replaced the previous trade agreements between the groups and is more in line with WTO guidelines. The programme is still being implemented throughout the region. See Brewster, H. (2008) The Anti-Development Dimension of the EPA, paper presented at the Commonwealth Secretariat High Level Technical Meeting: EPAs: The Way Forward for the ACP in Cape Town, South Africa, 7-8 April and Van Genderen-Naar, J. (2012) The Caribbean EPA Five Years After, presentation to The ACP-EU Joint Parliamentary Assembly ( JPA) Paramaribo, Suriname 27 November, where she raises questions about the ratification and provisional application of the EPA and points to the losses of revenue and the preference erosion facing Caribbean countries under its operation. Girvan, N. (2008) Caricom’s Development Vision and the EPA: A Fork in the Road, public lecture given at UWI, Cave Hill, Barbados, 18 April. Ibid. See discussion in Antoine, R.-M. B. (2010-2011) ‘Rethinking labour law in the new Commonwealth Caribbean economy: a framework for change’, 32 Comparative Labour Law and Policy Journal, 343 at p. 364; here the writer provides an example of this in the agreement made between the regional governments to charge a head tax on cruise ship passengers. In the face of protest and threats of relocation from the shipping companies some countries secretly reneged on this agreement in order to keep the goodwill of the cruise lines. This evidenced a clear penchant for some countries to undermine others to gain the most beneficial position for their individual nation. 14 Commonwealth Caribbean Employment and Labour Law state. For those who bravely venture to utilise the existing mechanisms, the issues of the differentials in the employment and labour law framework may potentially prejudice workers since the ideals of labour law harmonisation have not been fully achieved.95 From a labour law perspective the example of a company incorporated in Trinidad and Tobago that acquires an entity that was previously being operated in Jamaica with the workers benefiting from union representation can be considered. The new owners may seek to impose their indigenous legal provisions regarding trade union recognition for the purposes of collective bargaining in deference to the Jamaican legal provisions. While conceivably the governing law of the employment contract could cure the likely conundrum and possible industrial unrest that could ensue, it would be an easier transition for the business if in principle these issues were addressed through a harmonised legal structure. On the employment law view a worker who migrates from Barbados to Antigua or St. Lucia forfeits unemployment insurance upon dismissal since there are no such provisions in the latter jurisdictions. However, he may gain a severance payment had he moved to Belize and faced similar circumstances. These differences underscore the need for purposeful and immediate decisions regarding harmonisation of labour and employment law if CARICOM is to be anything more than a mere social organisation. Individual states must also address internal conflicts between the stakeholders in the field to engender synergies which already exist in the quest for greater productivity and economic progress. Barbados provides a commendable national prototype for emulation, using the ILO tripartite model set out in Convention 144 Tripartite Consultation (International Labour Standards) Convention, 1976 as its base. In the face of a dismal economic forecast in 1993, the Barbadian government managed to establish the first of what would be six social partnership agreements over a twenty-year period between themselves and the employers and unions through a process of social dialogue.96 Commencing with a Prices and Incomes Policy and evolving to the current Social Partnership Protocols, what has emerged in that jurisdiction is a ‘generally adjudged successful system that has taken advantage of improvements in the global economy thereby facilitating sustained economic growth for the long term.’97 The implications for labour and employment issues were extensive as the agreements produced a level of stability in the labour market while concurrently furthering developments in specific areas such as occupational health and safety and enhanced training of human resources. Though other countries within the Caribbean have attempted to pursue similar programmes, they have not been as successful in their implementation.98 This is unfortunate as social dialogue or social partnership presents one of the most effective answers to globalisation and trade liberalisation.99 It is therefore hoped that regional states will continue to examine this concept with a view to utilising it as a path towards the further development of their economies and, in particular, the equitable advancement of labour and employment law. From another contemporary standpoint many of the employment law issues that were previously encountered by workers still confront them despite the intervention of legislation. 95 96 97 98 99 See Antoine, R.-M. B. (2007) Law and Development: The Challenges of Globalisation for an Integrated Caribbean, paper presented at the Commonwealth Lawyers Conference, Kenya, September, p. 6. See the enlightening paper by Minto-Coy, I. D. (2011) Social Partnerships and Development: Implications for the Caribbean, The Centre for International Governance Innovation, Caribbean Paper No. 12, December, available online at www.cigionline.org. See Fashoyin, T. (2004) ‘Social Dialogue for Socio-Economic Development: The Case of Barbados and the Implications for the Caribbean’, 29 Journal of Easter Caribbean Affairs 42-63 at p. 48. These include Trinidad and Tobago, Guyana, Grenada and Jamaica; see further discussion in Greaves, E. (2000) ‘Social dialogue in selected countries in the Caribbean: an overview’, pp. 33-43 in Trade Unions and Social Dialogue: Current Situation and Outlook, Labour Education 2000/3 No. 120 (ILO publication). Ibid. p. 42. Chapter 1: Introduction and Background To Commonwealth Caribbean 15 In essence the same problems are clothed in different garb; uncertain employment status and job security are just two such concerns that remain intractable. Even though efforts have been made by regional governments to delineate the boundaries of the concepts in the hope that this would provide an objective yardstick for determination in practical application, the umpires of capital have continually found ways to ‘move the goal posts’ in order to maximise efficiency and reduce their bottom lines.100 The worker appears to be the biggest loser in these scenarios. In such cases should labour and employment law do more to provide worker protection in the face of the push to seek economic growth? Is this even possible?101 Isn’t the working of the free market designed to allow persons the freedom to find the best working relationships that best fits their needs? There has been a growing discourse in employment and labour law circles regarding whether, in fact, the law needs to ‘rethink the attachment to the contract of employment as the central mechanism (the platform) and the employer and employee as the building blocks’.102 In fact, Langille exhorts us to ‘shake off the grip that it is the deficiencies in negotiation of the contract of employment which provide the central rationale for labour law and that the contract of employment is the central platform for delivering labour law’.103 Mitchell104 also questions whether employment and labour law, as we know it, continues to have any coherence or relevance in light of the uncertain conditions of the political economy and global imperatives. He further posits that the ‘frontiers’ of employment and labour law have become blurred and calls to attention the direction in which it should be heading. Le Roux105 for her part postulates that labour law will be hard-pressed to continue playing its traditional Kahn Freundian roles of counterbalancing the power disparity between workers and employers in light of the ever-increasing fluidity of employment and work relations. She proposes that a sustainable employment approach be adopted where legislation recognises the true nature of the growing trend where workers are mostly employed temporarily and consequently create a legal framework to provide reasonable protection in this context. How should the Commonwealth Caribbean view these developments? Do they have any credence in the light of its contemporary labour market landscape? As it stands currently, with the exception of permanent posts within the government services and some established companies, a large number of workers are involuntarily contracted in various atypical forms of employment and thus unable to access the protective provisions envisioned by the law.106 These include workers in the tourism industry, the fast growing ‘outsourcing’ sector such as janitorial and security services, so called ‘independent contractors’ and those in the Information Technology sector typically working in call centres. With this in mind Antoine agrees that the region too must rethink the classical view of employment and labour law to encompass provisions 100 See discussion in Bacchus, R. (1999) ‘Globalisation and the labour agenda in small economies with special reference to Guyana’. 9 Caribbean Law Review 163. 101 See Taylor, O. (2003) ‘Worker Protection and Economic Growth, Can the Twain Meet? A Cross Country Comparison’ pp. 131-145 in Reid, F. et al. (Eds) Trade and Labour Protection: Can the two be made to work together? Les Presses de l’Université Laval; Taylor posits that not only are worker protection and economic growth compatible, they are co-related (p. 143). 102 Langille, B. (2006) ‘Labour Law’s Back’ pp. 14-36 at 29 in Davidov, G. and Langille, B. (Eds) Boundaries and Frontiers of Labour Law Oxford: Hart Publishing. 103 Ibid. 104 Mitchell, R. (2010) Where Are We Going in Labour Law? Some Thoughts on a Field of Scholarship and Policy in Process of Change, paper presented at the Employment Law Conference: Employment Law in the 21st Century, Challenges and New Horizons, Bar Council of Malaysia, Kuala Lumpur, January. 105 Le Roux, R. (2012) The Purpose of Labour Law: Can it Turn Green? Paper presented at the 25th Annual Labour Law Conference Institute of Development and Labour Law, Cape Town, South Africa, July. 106 See Downes, A. C. (2007) Labour Markets and Human Resource Development in the Caribbean, paper presented at the Sir Arthur Lewis Institute of Social and Economic Studies, September. 16 Commonwealth Caribbean Employment and Labour Law that ‘can inculcate the norms needed to create fair societies’.107 She suggests that a developmental model should be utilised using as its base human rights as the intrinsic value in any type of employment relationship.108 For the workforce cohort of the approximately 6.5 million109 citizens of the English speaking Caribbean islands and mainland territories, washed by the Caribbean Sea and bathed by the tropical sun, the current scenarios underpinning employment and labour law present some solid opportunities and conversely some harsh realities. Until workers are able either by themselves, through the instrumentality of revived trade union movements, or via radical government intervention, to maximise the gains and minimise the disadvantages they must continue to ‘labour’ under the regimes that exist. Similar sentiments are also true for employers. Much will therefore depend on the workings of the administrative and legal systems when seeking to balance contending interests. It is to these structures and operations that we now turn our attention. 107 Antoine, R.-M. B. (2010-2011) ‘Rethinking Labour Law in the New Commonwealth Caribbean Economy: A Framework for Change’, 32 Comp. Labour Law and Policy Journal 343 at p. 354. 108 Ibid. pp. 365-371; see also the discussion in Chapter 2, p. xx. 109 Population data accessed from www.CARICOM.org as at 30 August 2013. CHAPTER 2 SOURCES AND INSTITUTIONS OF EMPLOYMENT AND LABOUR LAW OVERVIEW The vestiges of pre-colonial legal systems that have influenced the Commonwealth Caribbean set the stage for the examination of how employment and labour laws in the region have evolved in order to seize opportunities for political and economic independence. As will be seen throughout this chapter and indeed the whole book, mirroring the United Kingdom position, ‘… the nature and extent of labour law in the Caribbean is characterized by an eclectic mix of common law principles, legislation, customs, practices and policies’,1 which creates a unique synergy. This is not a strange occurrence in common law jurisdictions since much of what now constitutes the legal framework for the identification and resolution of employment and labour issues of necessity derives from ad hoc systems that were created to match situations as the need arose. Thus the interaction between a multiplicity of norms coupled with the intervention of strict legal tenets provide what could be regarded as a convoluted base of operations in the field. To begin, we will examine the ‘formal’2 sources encompassing the common law and legislation to establish the stricto senso legal backdrop of relationships within the labour and employment arena. However, these must be juxtaposed with a consideration of their ‘informal’ or voluntary counterparts of customs and practice, collective agreements and workplace policies that, although not necessarily possessing the classically formulated legal configuration, represent a significant component of the law’s underlying structure. This conglomeration of sources requires stakeholders in any employment relationship to be aware not only of their individual existence but also the inevitable, and sometimes intricate, interaction between them. Thus an employment contract executed by an employer and a worker – an averred creature of the common law – may not contain all the terms that will guide their dealings. The contract could very well be subject to the provisions of the minimum legislative standards for employment rights such as vacation or maternity leave, along with additional voluntary benefits negotiated under a collective labour agreement for a bargaining unit of which the worker is a part. Acting in ignorance of any such provisions will no doubt put the artless employer on a collision course with a number of institutions who may be petitioned on the worker’s behalf. Another example is presented by the operations of unions within an organisation that is subject not only to its formal recognition by the employer but also traditional procedures pertaining to an industry and sometimes even within the specific enterprise. This could influence the manner in which it conducts its affairs, thereby having legal implications for the continuing relationship between the parties. It is therefore quite clear that both genres carry substantial weight in the domain of employment and labour relations. In light of the commitment made by the governments of the Commonwealth Caribbean towards regional integration and also their membership in several international institutions with the consequent accession to various treaties, important regional and international instruments will also be explored as possible sources of employment and labour law. There is an inescapable inference that the phenomenon of globalisation and the attendant free movement of 1 2 Downes, A. S. et al. (2004) ‘Labour Market Regulation and Employment in the Caribbean’ pp. 517–552 at 520 in Heckman, J. and Pages, C. (Eds) Law and Employment Lessons from Latin America and the Caribbean, Chicago, Il: University of Chicago Press. A formulation adopted from Deakin, S. and Morris, G. (2012) Labour Law (6th Ed.), London: Hart Publishing, p. 58. 18 Commonwealth Caribbean Employment and Labour Law workers, capital and goods greatly impact the operations of the region’s open labour market rendering it fragile and unpredictable. Importantly, CARICOM’s quest to further collective economic development leading to execution of trade agreements that incorporate labour clauses, presents a situation where international standards could become not just applicable in principle but also as enforceable trade sanctions with possible deleterious consequences where member states cannot comply. These possibilities should also be viewed along with the constant jostling of individual countries seeking to secure the most advantageous position both intra-regionally and externally. This could lead to the watering down3 of domestic employment and labour rights in the name of fiscal progress. Therefore the significance of such arrangements and their implications should not be underestimated. There is widespread acknowledgement that the nature of the legal rights and duties associated with employment and labour law necessitates the operation of specialised institutions tasked with the responsibility of their interpretation and enforcement. As such we will examine the bodies within the Commonwealth Caribbean that were clearly designed to promote the harmonious existence of all stakeholders in the field, ranging from strict judicial bodies such as the various courts paying particular reference to specialised industrial courts to quasi-judicial tribunals that also exercise some jurisdiction over employment and labour matters. We will also look at some non-judicial bodies which play a vital role in the administration of the area especially in regard to the operations of unions in workplaces and significant government agencies which address aspects of employment and labour policy affecting the labour market. FORMAL SOURCES OF LAW Common law One of the most celebrated legal minds, Blackstone, defines the common law as ‘general legal customs and rules which receive their binding power and the force of law by long and immemorial usage over time and universal acceptance throughout the [British Empire]’.4 Broadly speaking, the term ‘common law’ encompasses these early customs as well as legislative enactments and the judicial decisions interpreting their application. Countries in the Commonwealth Caribbean operate a common law legal system inherited from England by whom most were colonised, with the partial exception of Guyana and St. Lucia, both of which utilise a mixed common law and civil legal system.5 The common law or case law consequently commands a pivotal role in both the individual and collective spheres of employment and labour law. This is typified by the extensive use of contract and tort principles in determining various fundamental aspects of employment relationships.6 Judicial dynamism (and in some cases lethargy) is therefore responsible for establishing the law’s foundations and continues to impact its onward development. For individual workers, many statutory employment rights are only accessible after a contract of employment is firmly established.7 So, for example, despite attempts made by the 3 4 5 6 7 This concept is referred to by the ILO as the ‘race to the bottom’. See Singh, A. (2004) Labour Standards And The Race To The Bottom: Rethinking Globalisation and Workers Rights From Developmental and Solidaristic Perspectives, 20 Oxford Review of Economic Policy pp. 85-104. Quoted in Chase, A. (1974) Industrial Law, Guyana: Autoprint Guyana Limited, p. 1, fn. 3. See Antoine, R.-M. B. (2009) Commonwealth Caribbean Law and Legal Systems (2nd Ed.), Abingdon, Oxon: Routledge Cavendish, Ch. 4, pp. 58-72; Glenn, J. M. (2008) ‘Mixed jurisdictions in the Commonwealth Caribbean: mixing, unmixing, remixing’, Electronic Journal of Comparative Law, Vol. 12.1 (May). For example, vicarious liability, agency. See Anderman, S. D. (2000) ‘Interpretation of Protective Statutes and Contracts of Employment’, 29 ILJ, p. 223. Chapter 2: Sources and Institutions of Employment and Labour Law 19 legislature in some Commonwealth Caribbean jurisdictions to distil the notions of who is a worker/employee,8 capable of being engaged in an employment contract, this remains a matter to be properly determined by appropriate adjudicatory bodies using relevant common law principles.9 The prevalence of oral contracts in the Caribbean, especially at the lower tiers of employment, has also promoted the expansive use of the common law concept of implied terms10 by courts and industrial tribunals to provide completeness and efficacy in contracts. Logically therefore the guidance offered by the common law doctrine of judicial precedent is routinely prayed in aid. Stare decisis or judicial precedent has long been heralded as providing certainty, uniformity, and predictability within the law that, in turn, promotes a stable legal environment. With its genesis in English law, it is therefore understandable that Caribbean jurisprudence will seek direction from this source. However, there has been much discussion regarding the need for the development of indigenous jurisprudence that truly reflects the unique socio-economic issues faced in the region.11 The question of whether judicial precedent from other Commonwealth jurisdictions can be successfully applied in the adjudication of employment and labour law cases in the Caribbean was addressed by the Barbados Court of Appeal in Waithe v Caribbean Confection Co. (1959) Ltd.12 The case examined the interpretation of a particular condition of the claimant’s employment contract that was amended after new owners acquired the business. The employee relied on Canadian cases to posit that contractual amendments made by the management were unreasonable and thus he was constructively dismissed. The court held that although Canadian authorities possessed some persuasive authority in Barbadian jurisprudence, each case will inevitably turn on its own facts and only general legal principles were valuable. Therefore, cases that may seemingly appear to be on all fours with a factual scenario can nevertheless be regarded as merely persuasive authority. The recent decision of Industrial Disputes Tribunal, the University and Allied Workers Union v University of Technology Jamaica13 also graphically illustrates the point that reliance on employment case law from England, which was considered by the Judicial Review court as ‘persuasive authority’, ought not to be accepted wholesale. The Court of Appeal found that the principles espoused in an English decision (which was heavily relied on by the judicial review court) was predicated on a ‘statutory regime that is different from that established under the Labour Relations and Industrial Disputes Act’14 and therefore irrelevant in the determination of the issues in the instant case.15 In the labour law arena, the influence of the common law has been no less pervasive. The existence and operations of trade unions throughout the Commonwealth Caribbean was greatly constricted by the common law, which viewed such organisations as being illegal conspiracies16 8 9 10 11 12 13 14 15 16 Jamaica Labour Relations and Industrial Disputes Act s 2; Trinidad and Tobago Industrial Relations Act s 2 (definition of worker). For example, the various common law tests of employment fully discussed in Chapter 3. See Smith, I. and Baker, A. (2010) Smith and Woods Employment Law (10th Ed.), Oxford: Oxford University Press, p. 120 et seq. Fully discussed in Chapter 4. See Antoine, R.-M.B. (2009) Commonwealth Caribbean Law and Legal Systems (2nd Ed.) Abingdon, Oxon: Routledge Cavendish, Ch. 8, p. 118; Leighton, J. (2007-8) “Fi We Law” The Foundations for the Emergence of Caribbean Jurisprudence: Whether the doctrine of precedent? UWI West Indies Faculty of Law, Faculty Workshop Series. (2004) 67 WIR 41. 2012 JMCA Civil Appeal 46 (unreported) delivered 12 October, 2012. Ibid. para 37. See also Privy Council Appeal No 41 of 2008 Corbette v National Commercial Bank of Dominica (The Commonwealth of Dominica), paragraph 23, which shows a court’s error in using incompatible UK legislation to decide the case below. Henry, Z. (1972) Labour Relations and Industrial Conflict in Caribbean Countries (1st Ed.). Trinidad: Columbus Publishers, p. 33; See R v Journeymen–Tailors of Cambridge (1721) 8 Mod 10; Deakin, S. and Morris, G. (2009) Labour Law (5th Ed.), London: Hart Publishing, p. 5. 20 Commonwealth Caribbean Employment and Labour Law and operating in restraint of trade.17 In fact, the legality of trade union activities was for the most part secured only by statutory interventions18 that, though providing immunity from criminal and civil liability in specified circumstances, afforded no actual legal rights.19 Inevitably, therefore, such activity would otherwise constitute tortious acts. Since the specific deeds of trade unions are merely exempt from legal penalty, the common law is not far removed in its operation and can still develop new causes of action that can adversely affect trade union activity. The nouveau and still developing economic tort of interference with a trade or business by unlawful means provides ample evidence of the common law’s enduring presence in the labour law field.20 In Paul Joseph & Company Limited v Waterfront and Allied Workers Union,21 where the claimant company sought an injunction to restrain the defendant from continuing industrial action that caused loss to their business, the High Court recognised the existence of this tort and the likelihood of such legal action succeeding, should the issue be fully ventilated, while noting the existence of statutory immunities protecting trade unions. Judicial involvement developing the common law in this and other areas of employment and labour law have brought into sharp focus the need for and use of statutes as standard setting and regulatory instruments to address perceived imbalances in employment relationships. Legislation Legislative instruments are now essential to the effective functioning of the labour market in the Commonwealth Caribbean. In many instances they provide the principal source of employment rules governing these interactions. As observed in Chapter 1, where employment law was enacted during the early periods of colonisation, their objective was principally to subjugate and control the working class. Prior to 1919 there was no legal provision for collective representation and, even immediately thereafter, the provided rights were virtually imperceptible. Modern legislative intervention in the employment and labour law sphere substantively began after 1938 in response to the recommendations from the Moyne Commission, made consequent on the investigations of major labour unrests in the region.22 The types of legislation adopted were predicated on the prevailing collective laissez faire principles advanced by the venerable labour law jurist Otto Kahn Freund.23 It evinces the preeminent view of the day that protection of the individuals was best achieved ‘through trade union membership and collective bargaining’.24 As such, legislation categorised as being ‘protective’ was enacted throughout the colonies merely to provide a modicum of employment rights to individuals while concurrently ‘restrictive or auxiliary’ laws were effected to encourage the growth of collective bargaining.25 Arguably, to some extent these interventions met their stated objectives but quickly began to lose their effectiveness as, although collective representation did increase, there remained a 17 18 19 20 21 22 23 24 25 Hornby v Close (1876) LR 2 QB 153. Trade Union Acts across the region; see Chapter 7. See Lord Denning’s judgment in Express Newspapers v McShane [1979] ICR 210, 218; further discussed in Chapter 8. See Lockton, D. (2006) Employment Law (5th Ed.), Basingstoke: Palgrave Macmillan, p. 450 et seq for other such torts. [DM 1990 HC 8] Dominica High Court Suit No. 258 of 1990 (unreported) delivered 16 October, 1990. See discussion in Chapter 1. Kahn Freund, O. (1954) ‘Legal Framework’ p. 1 in Flanders, A. and Clegg, H.A. (Eds) The System of Industrial Relations In Britain, Oxford: Blackwell Publishing. Davies, A.C.L. (2004) Perspectives on Labour Law, (1st Ed.), Cambridge: Cambridge University Press, p. 11. See page 6 Chapter 1. Chapter 2: Sources and Institutions of Employment and Labour Law 21 disproportionate number of individuals who were not covered by their operations.26 This meant that many workers could not access mechanisms such as grievance procedures geared towards protecting against arbitrary disciplinary actions and dismissals, which more often than not were gained through negotiations culminating in collective labour agreements. Neither were those non-unionised workers able to receive any meaningful or regular increases in remuneration, let alone other fringe benefits, in the absence of these collective representations. They were therefore dependent upon the workings of government policy that guided the implementation or expansion of the ‘floor of rights’ laid down by protective legislation. In light of this unsatisfactory state of affairs many governments throughout the Commonwealth Caribbean slowly recognised the need to enact legislation to address these and other issues. For example, compensation in circumstances of redundancy or severance was first confronted by Barbados in enacting a Severance Payments Act in 1971.27 Jamaica followed suit by passing the Employment (Termination and Redundancy Payments) Act (1974),28 which also provided for minimum periods of notice based on years of service and addressed the issue of continuity in employment. Trinidad and Tobago somewhat belatedly passed the Retrenchment and Severance Benefits Act in 1985. Happily this particular mischief has for the most part been redressed by implementing legislation in all the other Commonwealth Caribbean jurisdictions29and stands as a good example of how legislation has been used in advancing the cause of forward thinking legal policy in an employment law concern.30 Similarly the challenge of providing protection for unfair dismissal from employment was first tackled by Trinidad and Tobago with the enactment of the Industrial Stabilisation Act in 1965.31 Antigua32 also followed suit and Jamaica, by judicial interpretation of the Labour Relations and Industrial Disputes Act,33 encompassed the concept of unjustifiable dismissal. Unfair dismissal protection is also specifically provided in Anguilla, British Virgin Islands, Dominica, Guyana, St. Lucia34 and St. Vincent and the Grenadines.35 The Barbadian legislature recently promulgated the Employment Rights Act36 in 2012, which purports inter alia to categorically put beyond doubt the employee’s right not to be unfairly dismissed. Belize, no doubt in response to unflattering commentary from the judiciary37 and other stakeholders, substantially overhauled its Labour Act in 201138 to incorporate this concept. 26 27 28 29 30 31 32 33 34 35 36 37 38 Manley, M. (1991) A Voice at the Workplace, Reflections on Colonialism and the Jamaican Worker, Washington, DC: Howard University Press, p. 213 indicating that Jamaican union representation ‘had trebled in size and quadrupled in influence [since the 1940s] but it failed to meet the organising challenge in extensive areas of the economy’. Came into effect 1 January, 1973. This law repealed the Master and Servants Act (1842). Antigua Labour Code Part IV; Bahamas Employment Act Part IV; Belize Labour Act Part XVIII Sect. 45 & 183; BVI Labour Code Part VI; St. Lucia Labour Code Sections 145, 146, 149. Fully discussed in Chapter 6. Now replaced with the Industrial Relations Act 1972. Antigua Labour Code 1975. Act 14 of 1975; Village Resorts Ltd. v Industrial Disputes Tribunal and Uton Green representing the Grand Lido Resorts Staff Association (1998) 35 JLR 292. St. Lucia Labour Code 2012. Anguilla Fair Labour Standards Ordinance 1988; BVI Labour Code; Dominica Protection of Employment Act 1977; St. Vincent and the Grenadines Protection of Employment Act; Guyana Termination of Employment and Severance Pay Act. Act 9 of 2012; Proclaimed on 15 April, 2013. In Palacio v Belize City Council Claim No. 175 of 2005 delivered 28 April, 2006 (unreported) Awich J commented ‘I have perused the Labour Act, Cap. 85 Laws of Belize. It is hopelessly out of date. It was legislated or adopted for a different time, and for purposes that are no longer relevant. Application of some of its provisions could today cause injustice instead.’ Act 3 of 2011. 22 Commonwealth Caribbean Employment and Labour Law Throughout the Commonwealth Caribbean, there have been incremental changes to the employment law legislative framework. Encouraged and mandated by international imperatives such as ratification of International Labour Organisation Conventions, as well as prevailing local and regional conditions within the labour market, various statutory instruments were enacted. Issues addressed in these laws relate to the extension (and in some cases implementation of) employment protection of individual employment rights including maternity protection, occupational safety39, leave entitlement, wages, dismissals,40 and the establishment of administrative frameworks to regulate these provisions.41 On the labour law front, the enacted auxiliary legislation did much to assist the creation of a vibrant trade union movement throughout the Commonwealth Caribbean.42 Indeed collective activism was the midwife of the first independent nations of the Commonwealth Caribbean. However, perhaps inevitably, tensions developed between the unions and governments when their objectives were at cross purposes. This led to the expansion of restrictive legislation to curtail instances of industrial disturbances and strikes. In Trinidad and Tobago the Industrial Stabilisation Act43 was hastily enacted in 1965 and was the first regional Act to impose compulsory arbitration of trade disputes in industries other than essential services by severely limiting the use of the strike weapon. Thus the law simultaneously sought to foster industrial peace by prescribing trade union recognition, enforcing collective agreements and even setting the prices of commodities. As with its introduction, the law’s operation was controversial, and was quickly challenged as being unconstitutional.44 It was revamped as the Industrial Relations Act in 1972, which significantly modified the provisions of its predecessor by reducing the near total prohibition on strikes, and establishing an independent board for the registration and recognition of trade unions. With the introduction of this regime it was patently clear that Trinidad’s industrial relations regime had decisively moved away from its previous voluntary ethos. Likewise in 1975, amid much debate and controversy, Jamaica promulgated the Labour Relations and Industrial Disputes Act (1975),45 which was designed to inter alia address the vexed areas of trade union recognition and the right to join trade unions, while concurrently establishing a permanent compulsory arbitration tribunal with jurisdiction to hear and determine industrial disputes.46 The intent was undoubtedly to institute a regime where industrial relations peace was assured by legislated provisions (when required) yet allowing the parties the flexibility to utilise a voluntary framework to settle their disputes in a manner acceptable to them at first instance. Thus in Jamaica the statute created a hybrid system which married some 39 40 41 42 43 44 45 46 Barbados Safety and Health at Work Act (Act 12 of 2005); Trinidad and Tobago Occupational Safety and Health Act (Act 1 of 2007); Guyana Occupational Safety and Health Act (Act 32 of 1997). St. Vincent and the Grenadines Protection of Employment Act 2003, Wages Regulations 2003; St. Kitts and Nevis Protection of Employment Act 1986 (amended 2001), Protection of Wages Ordinance, Holidays with Pay Act 1968; Grenada Employment Act 1999 (amended 2000); Dominica Labour Standards Act 1977 (amended 1991), Protection of Wages Act 1961, Protection of Employment Act 1977; The Bahamas Employment Act 2001, Minimum Wages Act 2002. St. Kitts Labour Ordinance 1966; Antigua Labour Commissioner Act 1951. See Bolland, N. (2001) The Politics of Labour in the British Caribbean. Kingston, Jamaica: Ian Randle Publishers. Repealing the Trade Disputes (Arbitration and Enquiry) Ordinance (1938). See celebrated decision of Collymore v AG (1967) 12 W.I.R 172 (T & T C. A.) and [1970]AC 538 (PC). This Act repealed and amalgamated certain provisions of the Trade Disputes (Arbitration and Enquiry) Law (1939) and the Public Utilities Undertaking and Public Service Arbitration Law (1952). See also discussion in Manley, M. (1991) A Voice At the Workplace: Reflections on Colonialism and the Jamaican Worker. Washington, DC: Howard University Press, p. 233 et seq. See Stone, D. H. F. (1972) The System of Industrial Relations in Jamaica, Mimeo, UWI, p. 79 et seq; Gershenfeld, W. J. (1974) Compulsory Arbitration in Jamaica, Institute of Social and Economic Research, p. 59 et seq; Chaudhary, R. et al. (1976) ‘An Appraisal of the Jamaican Labour Relations and Industrial Disputes Act’, pp. 36–59 in Lawyer of the Americas, Vol. 8. Chapter 2: Sources and Institutions of Employment and Labour Law 23 themes from a compulsory arbitration system with agreed and understood practices which had matured over time. Most of the other Commonwealth Caribbean countries reflect some version of the Jamaica model in the sense that legislation allows arbitration upon the breakdown of conciliation and prohibits industrial action in essential services as well as providing a system for recognition of trade unions.47 The exception in this regard is Barbados which maintains a totally voluntary system. In some countries, legislation has also assisted in advancing the justiciability of hitherto unenforceable voluntary collective labour agreements.48 Although initially legislations were passed in a piecemeal manner, over time, especially in the Eastern Caribbean States, moves were made towards consolidation Acts to enhance their accessibility and provide coherence49 for provisions that largely affected similar groups of workers. In this regard, two approaches appear to be utilised. On the one hand, some States have enacted two major pieces of legislation each addressing the major branches in the field; thus, individual employee protection issues are encompassed in one statute, while a commensurate legislation focuses on the substantive regulatory aspects of industrial relations and collective labour.50 On the other hand, some jurisdictions take a wide-ranging approach and have enacted one overarching statute that regulates all aspects of labour and employment relations in the form of a legislated Code.51 Antigua and Barbuda was the forerunner in the latter approach by implementing the Labour Code in 1975, showing remarkable foresight. Indeed Byron CJ (Ag) opined that the Code was an ‘innovative and important enactment which made substantial changes to the industrial law of Antigua’.52 The statute’s stated policy focus was ‘… to bring together, insofar as is practicable, all legislation applicable to employment, employment standards, and industrial relations in Antigua and Barbuda’.53 However it excluded provisions establishing adjudicatory and administrative institutions necessary for its effective operation.54 In a similar vein, an even more comprehensive approach to consolidation has been adopted by the Montserrat Labour Code55 and the St. Lucia Labour Code. The latter’s clear intention was to ‘… consolidate and reform legislation applicable to labour and industrial relations in Saint Lucia, taking into account existing local standards and international labour law standards’.56 This extensive statute repeals all previous legislation dealing with labour and employment57 and institutes a discrete legal framework which is expected to ‘… present a balanced approach; not only to give rights but corresponding responsibilities … which is even more important as [the country] faces diminishing resources and external competition’.58 The St. Lucia model, no doubt influenced by its civil law antecedents, presents a valuable prototype 47 48 49 50 51 52 53 54 55 56 57 58 See discussion below pages 81–86. For example, Grenada Labour Relations Act 1999 (amended 2003); Dominica Industrial Relations Act 1986; Bahamas Industrial Act 1970. See discussion on the need to consolidate labour laws in Antoine, R.-M. B. (1992) The CARICOM Labour Law Harmonisation Report, Faculty of Law, University of the West Indies, p. 513. This is the case in St. Vincent and the Grenadines, Grenada, the Bahamas and Dominica. In this sense we refer to a legislated and legally enforceable set of laws, not to be confused with a ‘code of practice’ which may also be in the form of subsidiary legislation and is discussed below pages 26–28. Universal Caribbean Establishment v Harrison (1997) 56 WIR 241 p. 243. Section A2. These issues were addressed by separate enactments; Labour Commissioner Act (1951); Industrial Court Act (1976); The British Virgin Islands also enacted a Labour Code in 1975 that, at the time, was also considered far reaching. However, this has now been superseded by a new Labour Code, which was passed in July 2010. Act 20 of 2012 (adopted 27 December 2012). Long Title of the Code Act 37 of 2006 (came into force on 1 August 2012). Section 462; The Montserrat Labour Code adopted the same approach (Section 187). From speech of Ray Narscisse, Acting Labour Commissioner, at the launch of the New Code; the Montserratian legislation also adopted the same approach. 24 Commonwealth Caribbean Employment and Labour Law for reforming labour legislation in the Commonwealth Caribbean. It is to be noted that St. Kitts and Nevis59 as well as Anguilla60 were, at the time of writing, undertaking extensive consultations with their tripartite stakeholders geared towards achieving consensus for the enactment of comprehensive Labour Codes that have already been drafted. These draft Bills are substantially in pari materia with their St. Lucian counterpart. However, it is noteworthy that the labour market in larger countries such as Jamaica, Trinidad and Tobago61 and Barbados continue to operate with archaic legislative provisions that were enacted in ad hoc fashion. What has resulted is a jigsaw puzzle of principal and subsidiary legislation encompassing diverse areas of employment and labour law that periodically produce intractable conflicts.62 This has created a virtual minefield for even the most experienced judge, legal practitioner, industrial relations and human resources practitioner to navigate, let alone the general public. The use of comprehensive Labour Codes in all states could therefore serve a useful purpose since, both in form and structure, it would provide an extremely functional text for utilisation by employers, employees, unions and all stakeholders within the labour market. In substance, such a move would of necessity compel legislators to purposefully examine the provisions of each law to ensure synergy in the application of underpinning legal principles. If the St. Lucia experience is anything to go by, this can be a protracted and hassle-filled process.63 The Code had its genesis in 2003, with a substantive draft being completed since 2006, yet it was not brought into force until 2012. The challenge of reconciling political agendas with conflicting and competing views of the principal actors on the employment and labour law stage will also no doubt impact any country’s effort to proceed with alacrity in this direction. However, based on prevailing economic conditions along with global and regional imperatives, such an effort would be well worth pursuing by other Commonwealth Caribbean states. This, coupled with the legal obligations that already exist among these countries via CARICOM, provides a compelling incentive to not only consolidate native labour legislations but also to harmonise the applicable legal principles, thereby enhancing the region’s prospects as an ideal location for multinational investment. Apart from strengthening, and in some instances redefining, accepted legal principles in the field, the use of legislation could also serve the commendable purpose of implementing standards in several new and emerging areas64 within the employment and labour law landscape. Issues such as personal data protection, the use of polygraph testing, fingerprinting and 59 60 61 62 63 64 See Article (1 May 2012) Efforts continue for a new Labour Code in St. Kitts and Nevis, available online at: www. sknclt.com/efforts-continue-for-a-new-labour-code-in-st-kitts-and-nevis (last accessed 5 June 2013). The Labour Code was drafted in April 2013. See article by Reid, R. (2013) Anguilla to revise labour laws and draft labour code, 29 April, available online at: www.caribbeannewsnow.com/topstory-Anguilla-to-revise-labour-laws-and-draft-labour-code-15615.html ( last accessed 31 May 2013). A draft Labour Code has been in existence since 2003. It should be noted that Trinidad contemplated a Labour Code from as early as 1959, but has not made any moves towards implementation; see the 1959 Report to the Government of Trinidad and Tobago on proposals for the revision and consolidation of existing labour legislation, Geneva: ILO. However, it appears that consideration is being given to enacting legislation to cover the mischief of providing notice on dismissal and encouraging the establishment of employment contracts or provisions of statement of particulars to employees: see Moonilal, R. (2006) Changing work arrangements and the scope of the employment relationships in Trinidad and Tobago, Port of Spain: ILO, available online at www.ilocarib.org.tt/cef/background%20papers/EMPLOYMENT%20TT_.pdf. A good example of this is the definition of essential terminology of ‘worker’ and ‘employee’ in Jamaica where the former wording is used in the LRIDA and the latter is used in the ETRPA purporting to address similar individuals. This is also exemplified in Anguilla, which also has a draft Labour Code since 2003 that is yet to be enacted. Fully discussed in Chapter 9. Chapter 2: Sources and Institutions of Employment and Labour Law 25 biometric technology in the recruitment, disciplinary and dismissal process have become increasingly in vogue among employers. However, for the most part, there exists no clear legal framework to govern their application, resulting in some employees being exposed to arbitrary decisions based on their usage. Currently only the Bahamas65 and Trinidad and Tobago66 possess specific statutes addressing aspects of the subject. As well, in light of the international trend towards zero tolerance of corruption in public and private organisations, it is surprising that only Jamaica67 has so far enacted legislation that promotes the encouragement and protection of workers who blow the whistle on unscrupulous employer practices. Dealing with sexual harassment in the workplace has fared somewhat better, in that five countries68 have specific statutory provisions acknowledging the challenge and providing tangible remedies for the aggrieved employee. Another modern workplace issue is discrimination on the basis of one’s HIV status. In this regard the British Virgin Islands, Belize, Montserrat and St. Lucia69 have enacted legislation to address this global employment challenge. In the absence of legislation Jamaica has created a national workplace policy70 on the subject, modelled on the ILO’s Code of Practice on HIV/ AIDS and the world of work.71 Although not having the force of law it constitutes a first-step commitment to instituting legislation in due course. In 2005 Barbados utilised the accepted tripartite mechanism of the Social Partnership to develop and implement a Code of Practice on HIV/AIDS and other Life-Threatening Illnesses in the Workplace.72 As the name suggests, the Code is more expansive than the analogous workplace policies adopted in other jurisdictions as it contemplates that there are other diseases that may have similar effects on employees in the workplace. The enduring importance of legislation in the employment and labour law field cannot therefore be understated. We agree with the distinguished industrial relations specialist and former Judge of the Trinidad and Tobago Industrial Court, Zin Henry, that ‘labour legislation have had a positive impact on economic development by creating a more stable and conducive industrial relations environment’.73 However, these inroads have not been achieved without challenges. Thus Henry’s concerns surrounding the tendency to adopt legislation from other jurisdictions without sufficient modifications to local conditions, excessive delays between the passage of legislation and actual implementation, and the lack of adequate administrative infrastructure to apply statutory provisions74 which unfortunately impedes its continued effectiveness. To address these concerns it is imperative that an interactive and consultative approach be utilised by policy makers when contemplating amendments to and/or promulgation of new statutes. This will ensure that the law remains relevant by keeping in view the effect of judicial pronouncements and its practical implications for its users. This will invariably promote a 65 66 67 68 69 70 71 72 73 74 Employment Act 2001, ss 67-70; Data Protection (Privacy of Personal Information) Act 2003. Data Protection Act 2011. Protected Disclosures Act 2011. Bahamas Sexual Offences Act 1991, s 26; Belize Protection Against Sexual Harassment Act 1996; St. Lucia Criminal Code 2004, s 139 and Labour Code 2006, ss 267 and 272; British Virgin Islands Labour Code (2010) s 119; Guyana Prevention of Discrimination Act (1997), s 8. British Virgin Islands Labour Code (2010), s 82 (1) (e); Belize Labour Act, s 42 (1) (i); Montserrat Labour Code, s 62(e); St. Lucia Labour Code, s 131(1) (f ). National Workplace Policy on HIV and Aids adopted by Parliament in February 2013; Both Guyana and Trinidad and Tobago have also adopted National Workplace Policies in 2009 but they too lack legal enforceability. Adopted in 2001; the ILO has since adopted Recommendation No. 200 concerning HIV and AIDS and the World of Work in 2010. Available online at https://labour.gov.bb/hiv. Henry, Z. (1982) Impact of Labour Legislation on Industrial Relations in the Caribbean, paper presented at The Round Table for Caribbean Employers’ Organisations, Bridgetown: Barbados, p. 43. Ibid. p. 47. 26 Commonwealth Caribbean Employment and Labour Law more responsive and productive labour market that can more effectively compete in the global arena. While this fact is acknowledged, the legislatures of the Commonwealth Caribbean must, as far as practicable, ensure that the intent of the statutes being enacted are fully captured in the drafted enactments. Otherwise their purpose may well be distorted and ultimately defeated on strict judicial construction of the legislation, as exemplified by the Vincentian High court decision in Floral Fantasy v Bethel Brackin,75 which denied a severance payment claim on a highly restrictive interpretation of the Protection of Employment Act. Such cases bring into sharp focus another variable in the development of labour law: that of the court’s intervention, which has long been criticised as being in favour of employers to the detriment of individual workers.76 Codes of Practice Codes of Practice provide guidance for the conduct and promotion of good industrial relations in the areas of collective bargaining, personnel management and general administration of employment procedures. These instruments can either be established via legislation, as in the case of Jamaica (the Labour Relations Code)77 and the Bahamas (Code of Industrial Relations Practice),78 or through government-mandated administrative policy as in the case of Guyana (Labour Laws Primer).79 The intent of the legislated Codes transcends being mere guidelines; they provide directives on the practical application of accepted industrial relations principles. Particularly, the Bahamian Code provides guidance for the granting of negotiating rights and the negotiation of effective collective agreements.80 However, they are not legally binding since a breach of their provisions will not per se create liability for the offending party leading to proceedings.81 Notably Industrial Tribunals adjudicating matters to which the Codes apply must mandatorily consider any relevant provision in determining the issue at hand.82 Another unique feature of these Codes is that they are usually worded in unambiguous non-legal language since they are usually intended to be easily comprehensible by the common man. This apparent policy has much to commend it since the Codes serve as the best yardstick for best practices in workplaces that have not implemented work-rules and guidelines through collective agreements or otherwise. In Jamaica, since its enactment, the legal status of the Labour Relations Code has long been the subject of judicial examination.83 In R v IDT ex-parte Egbert Dawes,84 Gordon J opined that the Labour Code was ‘not an Act of Parliament but guidelines for promoting good labour relations. It is of persuasive force and should be applied unless good cause is shown to the contrary.’ In the case of Village Resorts Ltd. v Industrial Disputes Tribunal and Uton Green representing the Grand Lido Resorts Staff Association85 the Court of Appeal judges, though coming to differing 75 76 77 78 79 80 81 82 83 84 85 Unreported Eastern Caribbean Supreme Court (St Vincent and the Grenadines) Claim No. 17 of 2012 delivered 5 July, 2012; see also Downes, A. S. et al. (2004) ‘Labor Market Regulation and Employment in the Caribbean’, pp. 517-551 at p. 520 in Heckman, J. and Pagés, C. (Eds) Law and Employment: Lessons from Latin America and the Caribbean, Chicago, Il: University of Chicago Press. See Davies, A.C.L. (2004) Perspectives on Labour Law (1st Ed.), Cambridge: Cambridge University Press, p. 69. Labour Relations and Industrial Disputes Act (s 3). Industrial Relations Act (s 40). Launched in 2010, it outlines the basic laws of employment and is intended to guide employers and employees generally; this was preceded by the Handbook for Employers. Third Schedule IRA (Bahamas). LRIDA Section 3(4); IRA (Bahamas) Section 40 (2). LRIDA Section 3(4); IRA (Bahamas) Section 40 (3). See R v IDT ex-parte Egbert Dawes (1984)21 JLR 49; Village Resorts Ltd. v Industrial Disputes Tribunal and Uton Green representing the Grand Lido Resorts Staff Association (1998) 35 JLR 292. (1984) 21 JLR 49. (1998) 35 JLR 292. Chapter 2: Sources and Institutions of Employment and Labour Law 27 conclusions as to whether the IDT was correct in its conclusions, relied heavily on the provisions of the Code in justifying their arguments. In the landmark Privy Council decision of Jamaica Flour Mills Limited v Industrial Disputes Tribunal and National Workers Union86 the matter was again revisited. The case concerned the company’s dismissal of three workers by way of redundancy consequent on the outsourcing of the stevedoring functions they performed. Neither the workers nor their unions were consulted prior to the dismissal, which was to take immediate effect in clear breach of the Paragraphs 11 and 19 of the Code. The manner of the dismissals sparked industrial action and the underlying issues were eventually referred to the Industrial Disputes Tribunal for settlement. At the hearing, the company argued that the Labour Relations Code was not law but was merely a set of non-binding guidelines that need not be strictly complied with, if at all. In concluding that the workers were in fact unjustifiably dismissed, the IDT took into account the provisions of the Code that commanded consultation in the event that redundancies were contemplated. The Tribunal opined: The Code is as near to Law as you can get. The Act mandates it. It consists of ‘practical guidance’ by the Minister after consultation with Employers and Employees. It was (as legally required) approved by both the Senate and House of Representatives and can only be amended in the same manner as originally established. It is a statement of National Policy.87 Upon appeal, the Judicial Review Court, the Court of Appeal and the Privy Council judges all concurred with the decision of the IDT regarding the proper use of the Code in its deliberations. It was accepted that the view, previously espoused by the President of the Court of Appeal in the Village Resorts case, that the Code, the LRIDA and its Regulations represented the ‘comprehensive and discrete regime for the settlement of industrial disputes in Jamaica’88 was indeed correct. The upshot of these decisions virtually elevates the status of the legislated nonbinding Code to effectual obligatory law, since ignoring its tenets empowers the IDT to rule a dismissal as being unjustifiable. As such, employers can no longer be content in having a passing knowledge of the Code’s existence, especially in light of recent amendments to the LRIDA,89 which now allows non-unionised workers to conceivably have access to the Tribunal. This change widens the reach of its provisions to include all employees,90 where previously the Minister’s power of referral to the IDT was restricted to disputes involving unionised workers.91 It is clearly arguable that the effect of the Flour Mills decision was never what Parliament intended: that is to impute the ‘good industrial relations practice’ provisions of the Code into contracts of employment on pain of possible judicial sanction. Nevertheless, it is submitted that the result of the ruling has clearly inured to the benefit of the workers by virtue of employers becoming more cognisant of the Code’s provisions and acting in accordance therewith. In contrast the Bahamian Code does not appear to have received similar elevation through the judicial system. In the redundancy case of Neely v Credit Suisse Trust Limited 92 the Supreme Court reiterated that ‘failure to follow the Code does not in itself render a person liable to 86 87 88 89 90 91 92 Dispute No. IDT 22/99 decided 9 October, 2000; Full Court Suit No. M105 of 2000 (unreported) delivered 17 December, 2001; Court of Appeal SCCA 7 of 2002 (unreported) delivered 11 June, 2003; Privy Council Appeal No. 69 of 2003 (unreported) delivered on 23 March, 2003. Page 9 IDT award. Rattray, P in Village Resorts Ltd. v Industrial Disputes Tribunal and Uton Green representing the Grand Lido Resorts Staff Association (1998) 35 JLR 292, p. 299. Section 2 Act 8 of 2010 (Labour Relations and Industrial Disputes (Amendment) Act). See Brooks J dicta in Rosmond Johnson v Restaurants of Jamaica RMCA No. 17/2011 (unreported) delivered 30 March, 2012, implicitly acknowledging the possibility of the Code’s application to non-unionized workers after the 2010 amendment. See R v Minster of Labour and Employment, The Industrial Disputes Tribunal, Devon Barrett, Lionel Henry and Lloyd Dawkins Ex-parte West Indies Yeast Co. Ltd (1985) 22 JLR 407. Suit No. Com/Lab 15 of 2005 (unreported) delivered 28 January, 2009 (Supreme Court of the Bahamas). 28 Commonwealth Caribbean Employment and Labour Law proceedings of any kind’,93 and its applicability only extends to proceedings emanating under the Industrial Relations Act and could not be imputed to cases relating to other statutes such as the Employment Act. However, the courts have, on occasion, in obiter dicta referred to various provisions of the Code in examining the duties and responsibilities of employers, unions and employees within the workplace in making its decisions.94 The Guyanese Labour Law Primer reflects that government’s attempt to ‘provide literature outside legal texts which urges and promotes conformity with the labour laws of Guyana’,95 recognising that laws and regulations were useless and ineffective without robust and effective programmes to ensure and establish awareness and application. The modality used to promote this ideal is reflective of the high voluntaristic ethos of labour law in this territory. Regional (CARICOM) instruments The realities of shrinking global labour markets and adverse fiscal conditionalities have rendered it prudent for countries to create economic blocs to maximise labour efficiencies and reap available benefits. In this regard the Commonwealth Caribbean is no different.96 This was recognised early, precipitating the establishment of the West Indian Federation which, though ultimately failing, provided the kernel for a regional integration movement that has been rebirthed and developed over the past 54 years.97 This seed evolved from being a free trade area (CARIFTA) to a Common Market (CARICOM), ending with the current and still developing Caribbean Single Market and Economy (CSME). Initially CARICOM was established by the Treaty of Chaguramas in 1973, with one of its primary aims being (through a solid economic union) to empower member states to ‘fulfil the hopes and aspirations of their people for full employment and improved standards of work and living.’98 This original premise contemplated the free movement of labour and other factors of production across the region, which was to be given life through an organ of the community - the Standing Committee of Ministers of Labour (SCML). After the decision of the Heads of Government99 to transform the common market concept into a single market, the free movement of labour took on greater significance. The intent was to promote the full participation of member States and their citizens in the labour market anywhere within CARICOM. Through the SCML,100 CARICOM approved the Declaration of Labour and Industrial Relations Principles in 1995 as a statement of policy to be used as a ‘guide on labour matters [and a] … tangible expression of its commitment to equity and social justice through the adoption of common labour standards and principles.’101 Although representing a comprehensive statement of best practices in employment and labour law, aligned with accepted International Labour Standards, the Declaration has remains a somewhat hollow charter. Its implementation is clearly subjugated to each member State’s Constitutions and other relevant domestic law, which were usually established to protect 93 Ibid. para 26. 94 See Issac J decisions in Airport Airline and Allied Workers Union v Harding Suit No. 33 of 2007 (unreported) delivered 26 January, 2009; and Bahamas Hotel Catering and Allied Workers Union et al. v Registrar of Trade Unions et al. Suit No. PUB/JRV No. 16 of 2009 (unreported) delivered 30 July, 2009. 95 Speech of Permanent Secretary Ministry of Labour on the launch of the document on 1 December 2010. 96 See Wade, M. (2002) The Social and Labour Dimensions of Globalization and Integration Process; Experience of CARICOM, ILO publication. 97 The West Indies Federation existed between 1958 and 1962. 98 Preamble to the Original Treaty of Chaguramas. 99 Via the Grande Anse Declaration 1989. 100 Now superseded by the Council for Human and Social Development (COSHOD). 101 Carrington, E. W., Secretary-General, Caribbean Community Georgetown, Guyana 1998, Foreword to the Declaration of Labour and Industrial Relations Principles. Chapter 2: Sources and Institutions of Employment and Labour Law 29 insular national interests.102 While recognising the need for congruence among the labour and employment laws within the community, it appears that CARICOM itself is virtually powerless to enforce the principles accepted by the Heads of Governments in the absence of appropriate national legislative provisions to that effect. This reveals a palpable weakness of the union of Commonwealth Caribbean States; it possesses no supranational political regime with the power to mandate and ensure the realisation of agreed policy objectives. Girvan103 describes this as CARICOM’s ‘original sin’, bemoaning the fact that ‘… this position is set to continue as the countries have reaffirmed that CARICOM is a Community of Sovereign States’.104 Some member States have stubbornly retained their individual rights of self-government, accepting for implementation in their country only those principles within the Declaration considered advantageous to its citizens. The revised Treaty of Chaguramas, which was promulgated in 2001, further recognised the need to expand the reach of the integration movement via the formal establishment of the single market and economy. The revised Treaty has now been expressly incorporated into the legal framework of member States via legislation.105 It enshrines the principle of free movement of skilled persons106 and good industrial relations practices 107 as integral components of the single market. In furtherance of these objectives each member State was required to enact domestic legislation to facilitate free movement of labour (initially on a phased basis, with gradual expansion envisioned108) across the region. To their credit all member States have now enacted such statutes,109 but their practical applications have, in some cases, left much to be desired. St. Vincent and the Grenadines Prime Minister Ralph Gonsalves, in a statement to Parliament in 2009, lamented that although his country abided by the ‘letter and the spirit of the Treaty [of Chaguramas] and our laws, other member states were not reciprocating’.110 He called upon colleague Heads of State and Governments to address the ‘bundle of issues attendant on the “freedom of movement” matter, … as a failure and/or refusal to do so in a fair and reasonable manner is likely to invite the most deleterious consequences for the regional integration movement’.111 These comments are indicative of the challenges faced by nationals, especially from the smaller States within CARICOM, who arguably encounter virtual discrimination and obstruction when seeking to exercise their rights of free movement and employment within other member States. The legal enforcement of the Treaty and indigenous legislative provisions governing these entitlements are now squarely within the purview of the Caribbean Court of Justice (CCJ), 102 Article 1 - Declaration of Labour and Industrial Relations Principles. 103 See Girvan, N. (2011) CARICOM’s ‘Original Sin’, Address to the CARICOM Regional Civil Society Consultation, delivered in Port of Spain, Trinidad and Tobago, 10-11 February. 104 Rose Hall Declaration on ‘Regional Governance And Integrated Development’ CARICOM Heads of Government meeting July 2003. 105 For example, Jamaica Caribbean Community Act 2005; Trinidad and Tobago Caribbean Community Act 2005. 106 Article 46. See also Wickham, P. et al. (2004) ‘Freedom of Movement: The Cornerstone of the Caribbean Single Market and Economy’, paper developed for the Caribbean Policy Development Centre, January, available online at http://sta.uwi.edu/salises/workshop/papers/pwickham.pdf (last accessed 16 August 2013). 107 Article 73. 108 Commencing with university graduates, media workers, sports persons, musicians, and artists; now expanded to include teachers, nurses and workers with approved skilled certification. 109 For example: Jamaica Caribbean Community (Movement of Skilled Persons) Act 1997; Antigua and Barbuda Caribbean Community Skilled Nationals Act 1997; St. Vincent and the Grenadines Immigration (Caribbean Community Skilled Nationals) Act 1997; Trinidad and Tobago Immigration (Caribbean Community Skilled Nationals) Act 1996. 110 Gonsalves, R. (2009) ‘Freedom of movement in CARICOM’ - Statement to St. Vincent and the Grenadines Parliament on 14 May. 111 Ibid. 30 Commonwealth Caribbean Employment and Labour Law which exercises original jurisdiction in these issues and to which all member States are bound.112 However, as noted by Justice Simmons: … the CCJ is not [itself] a supra-national institution. The States of the Caribbean which have signed the Revised Treaty and submit to the original jurisdiction of the Court are all sovereign, independent States. They have not ceded any of the attributes of sovereignty to any supranational entity as, for example, is the case with the European Union.113 There is consequently no executive body capable of enforcing the Treaty. It therefore remains to be seen how the court in the exercise of its functions will address these cogent concerns in its nascent phase of development. Despite these deep and genuine concerns, CARICOM continues to pursue the ideals of economic integration and, particularly, harmonisation of laws to ensure workers’ equality, thereby at least notionally facilitating effective free movement of labour within the region. It recognises that divergent issues relating to the application of labour and employment law principles exist among individual member States.114 Although the basic tenets of the legal framework in most States are relatively similar, there were differentials in implementation and practices in both the labour/industrial relations (collective sphere) and the employment (individual sphere). Using the Declaration as its foundation115 and collaborating with the ILO, CARICOM has drafted four model legislations in the areas of: termination of employment; registration, status and recognition of trade unions and employer organisations; equality of opportunity and non-discrimination in employment; and occupational safety and health and the working environment. This was in an effort to jumpstart the development of a fully synchronised labour relations system. CARICOM has also produced model laws specifically geared towards women’s employment issues including sexual harassment, equal pay and equality of opportunity in employment. It is being recommended that member States utilise these drafts116 as benchmarks in upgrading their current statutes to promote the harmonisation process, while concurrently aligning them with international labour standards.117 The existence of laws that are consistent across all States is not only beneficial to migrant workers but also to employers and other entities desirous of investing capital in labour intensive enterprise as it would provide a common regulatory framework. Indeed, Mahabir is of the view that ‘a regional approach to industrial relations, a codification of labour laws and practices would be of considerable benefit in building up CARICOM as an industrial base as well as establishing acceptable standards of employment’.118 Since there is already a common legal system in most CARICOM countries119 it is expected that governments will take steps to incorporate the tenets of the model laws in short order. However, it would not be surprising if this does not occur in the foreseeable future in light of perennial political challenges that dog issues of this nature. 112 See discussion below pages 49-55. 113 Simmons, D. (2005) ‘The Caribbean Court of Justice: A Unique Institution of Caribbean Creativity’, 31 Commonwealth Law Bulletin 71 at p. 82. 114 See generally ILO (2003) Regional Integration and Free Trade in the Americas: The Labour Challenge in CARICOM, ILO: Regional Office in the Americas. 115 ILO (2003) ‘Labour aspects associated with integration processes and Free Trade Agreements in the region’, p. 68 in Labour Overview, ILO Publication. 116 Only Belize, St. Lucia and Guyana have so far availed themselves of this opportunity. 117 All but two CARICOM countries have ratified the eight core ILO Conventions. 118 Mahabir, D. (1989) ‘Industrial Relations in the Caribbean: The Need For New Roles’, Caribbean Affairs, Vol. 2 No 4, October, pp. 172-178 at 174. 119 Suriname operates a full civil law system, whereas St. Lucia and Guyana operate a mixed system; all other countries have a common law ethos. Chapter 2: Sources and Institutions of Employment and Labour Law 31 International law Most independent member States of the Commonwealth Caribbean are signatories to several international instruments promulgated by the United Nations that have implications for labour and employment rights. One of the most influential (though in theory non-binding) is the Universal Declaration on Human Rights 1948,120 which enshrines the right to work, the prohibition of forced labour and the freedom of association for all citizens. These broad rights were further delineated in two binding treaties: the International Covenant on Economic, Social and Cultural Rights (ICESCR)121 and the International Covenant on Civil and Political Rights (ICCPR).122 With the exception of St. Lucia, St. Kitts and Nevis, and Antigua and Barbuda, all Commonwealth Caribbean States have either signed and/or ratified the ICESCR, while only the latter two countries have neither signed nor ratified the ICCPR.123 These two instruments were adopted by the United Nations in response to the perceived need to elaborate the general rights provided by the Universal Declaration by dividing them into civil and political on the one hand and economic, social and cultural on the other. For the purposes of labour and employment law the ICCPR is important as it stipulates the broad right to freedom of association and the right not be discriminated against on that basis, while the ICESCR’s significance in the field is its prescription on the rights to work, to strike, and for workers to be afforded decent working conditions. The positioning of labour rights within these instruments has prompted some schools of thought to classify them as genres of human rights and this has fuelled academic debate regarding the efficacy of this view. 124 One of the main challenges of adopting this general human rights view is the perceived unavailability of mechanisms to effectively enforce the ‘rights’ of aggrieved individuals when breached. It has been argued that civil and political rights are more apt for enforcement than economic and social rights since the ICCPR mandates States to ‘give effect to’125 its provisions, whereas the ICESCR only exhorts them to ‘take steps … with a view to achieving progressively the full realization of the rights’.126 On the other hand, customary international law principles embodying ‘evidence of a general practice accepted as law’,127 generally determined through two factors (state practice and opinion juris), has had some value among States that accept certain general practices as being binding upon them. The vehicle of customary international law128 has been adopted to give effect to analogous principles in the domestic sphere and, in this regard, the judiciary of some Caribbean countries has examined international human rights law precepts in arriving at decisions in cases where the issues are particularly complex.129 120 Articles 20 & 23. 121 Articles 6-8. 122 Article 21 & 22. 123 For a review of the role of these instruments in relation to labour standards see Valticos, N. (1998) ‘International labour standards and Human Rights: approaching the year 2000’, International Labour Review Volume 137, No. 2. 124 See generally – Antoine, R.-M. B. (2009) Commonwealth Caribbean Law and Legal Systems (2nd Ed.), Abingdon, Oxon: Routledge Cavendish (Ch. 12, pp. 204-228); Mantouvalou, V. (2012) ‘Are labour rights human rights?’, 3 European Labour Law Journal 151; Russell-Brown, S. (2003) ‘Labour rights as human rights: the situation of women workers in Jamaica’s Export Free Zones’, 24 Berkley Journal of Employment and Labour Law p. 179; Davies, A.C.L. (2004) Perspectives on Labour Law (1st Ed.), Cambridge: Cambridge University Press, Ch. 3. 125 Part 2 Article 2. 126 Part 2 Article 2. 127 International Court of Justice Statute, Article 38(1)(b). 128 See North Sea Continental Shelf Cases [1969] ICJ Rep. 3; Trendtex v The Central Bank of Nigeria [1977] QB 529 (CA); R v Bow Street Metropolitan Stipendiary Magistrate (Ex-parte Pinochet Ugarte) (No. 3) [1999] 2 All ER 97. 129 For example, see the CCJ decision of Attorney General of Barbados v Joseph and Boyce (2006) 69 WIR 104. 32 Commonwealth Caribbean Employment and Labour Law Notwithstanding recent decisions, there is still controversy surrounding whether this legal construct is unequivocally accepted in the Commonwealth Caribbean.130 An example of a labour right that is almost universally considered by many States as binding is the right to strike,131 in furtherance of the human right of freedom of association. In common law countries this ‘right’ is often not legislated for outright, in contrast with states like Sweden and France132 that boast a civil law tradition where they are accorded constitutional status. In the former case, parties to industrial conflicts must of necessity rely on the explicit statutory provisions that regulate this practice, rather than an arguably ethereal international principle. In the Commonwealth Caribbean there has been judicial consideration133 and academic debate134 on whether, in fact, the right to strike is guaranteed by either international or domestic law. The overwhelming consensus has been that there is no right to strike but rather a freedom to strike, which comes with the possibility that in appropriate cases legal sanctions can be imposed on workers who engage in such activities. Thus, in the Commonwealth Caribbean, precepts of customary international law have not transmuted into the labour standards arena since generally they are not considered jus cogens, as would be expected for customary international law generally.135 The International Labour Organization, its Conventions, Recommendations and Codes of Practice Because of the relatively fragile and aspirational nature of above-mentioned international legal instruments, the international standards delineated by the International Labour Organization (ILO), the United Nations specialist labour standard setting body, take on added significance as an implicit source of labour law. Since its inception in 1919 the ILO’s Constitution has consistently advanced the view that labour is not a commodity, and that the dignity of work should be recognised and protected, with emphasis placed on non-discrimination and freedom of association as being essential elements in achieving that goal. The principles expounded by the ILO Constitution itself are considered as a primary source of international labour law because ILO membership imputes a requirement that countries will accept and apply the principles domestically.136 The ILO operates under a unique tripartite structure where governments, employers and workers’ representatives collaborate to formulate authoritative labour standards. The ILO consists of three bodies, namely the International Labour Conference (ILC), the Governing Body and the International Labour Office. Together these bodies carry out the work of the 130 See enlightening discussion on this point in Robinson, P. (2011) ‘Achieving ‘The Admittedly Desirable Results’: Difficulties in Constructing Bridges to the Unincorporated Treaty’, 36 WILJ pp. 11-114. 131 Further discussed in chapter 8. 132 See discussion in Kirkaldy, G. Industrial Relations Law and Practice in Jamaica (1998) Caribbean Law Publishing Company, pp. 234-257. 133 Collymore and Abraham v AG [1969] 2 All ER 1207 (PC); Banton v Alcoa Minerals of Jamaica (1971) 17 WIR 275. 134 Chaudhary, R. (1979) ‘Freedom of Association and the Right to Strike’, Public Law, p. 6; Chaudhary, R. (1974) ‘The Law of Strikes and Picketing in CARICOM Countries’, Lawyer of the Americas, p. 710; Okpaluba, C. (1975) ‘Freedom to Strike’ p. 48 in Essays on Law and Trade Unionism in the Caribbean, Key Caribbean Publications. 135 See discussion in Vasciannie, S. (2007) ‘The relationship between international law and Caribbean domestic law’, WILJ, Vol. 32 (1), p. 51. 136 See Deakin, S. and Morris, G. (2012) Labour Law (6th Ed.), London: Hart Publishing, pp. 113-117; Nicolas Valticos formerly of the ILO: ‘The ILO constitution which the member states of the organisation have accepted lays down the principle of freedom of association; it has therefore been held that this principle should be observed by all states by virtue of their membership of the organisation alone’; see also Russell Brown, S. (2003), p. 189. Chapter 2: Sources and Institutions of Employment and Labour Law 33 Organisation, formulating and adopting various conventions and recommendations for the guidance of member countries upon examination of issues surrounding labour and employment worldwide. Davies posits that the ILO ‘gained legitimacy by emphasising (relatively) uncontroversial rights and by tapping into the powerful rhetoric of human rights’.137 Therefore it is unsurprising that the independent nations of the Commonwealth Caribbean are all members of the ILO and are required to bring relevant international instruments to the attention of competent state authorities for action within eighteen months of their adoption.138 ILO conventions and recommendations are considered as part of the corpus of international law and their texts prescribe the minimum international standards in various aspects of employment relationships. The ILO also formulates Codes of Practice which, like their national equivalent, provide practical directions for public authorities, employers and employees and their representatives on particular aspects of employment and labour law.139 In dualist countries conventions, while not usually legally binding per se, can nevertheless influence the character and content of national legislation. Recommendations on the other hand, though non-binding, involve procedural obligations and often supplement a convention by providing detailed guidance on its implementation. Codes of Practice, while also nonbinding, utilise an approach that maximises flexibility by avoiding obligatory prescription. Both are therefore considered as international best practices where there is no convention dealing with the particular subject matter, and can also be used to inform the development of works rules, collective agreements, policies and legislation. However, it should be noted that the ILO has been criticised as having an excellent standard setting mechanism but a weak enforcement structure140 as will be explored below. Their main sanction is the issuing of a ‘special paragraph’ in a General Report considered annually by the ILC where countries in breach of Conventions are subject to ‘naming and shaming’. This threat of international public reputational loss is intended to encourage compliance with state party obligations, but it is questionable whether this objective achieves its desired effect, especially for countries that deliberately ignore their responsibilities.141 Therefore the ILO’s modus operandi of moral persuasion and technical assistance, though understandable from a tripartite perspective, provides limited substantiation as an enforceable source of law. The establishment of local laws in each country is therefore critically important to incorporate these labour standards into the native jurisprudence. Throughout the Commonwealth Caribbean,142 ILO conventions are not automatically assimilated into the domestic jurisprudence since international law instruments exist within a completely distinct legal sphere, even if ratified by a member state.143 This evinces the ‘dualist doctrine’144 that requires the specific enactment of domestic legislation to transpose international legal principles into a country’s indigenous legal framework. In Antigua and Barbuda this principle is specifically enshrined in legislation by Section 3 (3) of the Ratification of Treaties Act (1987),145 which provides that ‘… no provision of a treaty shall become, or be enforceable 137 See Davies, A.C.L. (2004) Perspectives on Labour Law (1st Ed.), Cambridge: Cambridge University Press, p. 56. 138 Article 19 (5) (b) ILO Constitution. 139 For example, the Code of Practice on HIV/AIDS and the World of Work (2001) and Code of Practice on the Protection of Workers’ Personal Data (1996). 140 See Davies, A.C.L. (2004) Perspectives on Labour Law (1st Ed.), Cambridge: Cambridge University Press, p. 58. 141 Thomann, L. (2011) Steps to Compliance with International Labour Standards (1st Ed.), Springer, VS Verlag Research, p. 102. 142 See the ILO website for the eight Core Conventions that all countries have ratified (save St. Lucia that ratified seven and Suriname that ratified five). 143 See Vasciannie, S. (2007) ‘The relationship between international law and Caribbean domestic law’, WILJ Vol. 32 (1), p. 51. 144 This is the opposite of the monist theory where domestic and international law are considered analogous and therefore capable of immediate application in solving employment disputes. 145 Chap. 364.1. 34 Commonwealth Caribbean Employment and Labour Law as, part of the law of Antigua and Barbuda except by or under an Act of Parliament’. Thus, within the region the accepted modus operandi is through enactment of statutes encompassing the particular principle covered by a convention. This practice concurrently makes allowance for the assimilation of existing domestic custom and practice in the labour and employment sphere. Belize constitutes an exception to this pattern as, through the International Labour Organisation Conventions Act 1999,146 it not only expressly bestows the force of law on ratified ILO conventions but also gives them supremacy if there is conflict with other domestic legislative provisions.147 However, unratified conventions remain only persuasive, as seen in the case of Palacio v Belize City Council 148 where the court noted that: Belize has adopted several international conventions concerning employment and labour. Several have not been incorporated into or reconciled with the provisions of the relevant existing statutes. Cases brought to Court continue not to take those conventions into account. Notwithstanding the pre-eminence of the dualist methodology in Caribbean jurisdictions, the direct reliance on the principles undergirding international labour law in the domestic sphere has begun to gain some momentum. The ILO posits that conventions and recommendations can be used in three effective ways by national courts and tribunals: to interpret provisions in domestic law; as a source of jurisprudential principles grounded in international law; and to strengthen a decision predicated on domestic law.149 In the watershed case of Collymore and Another v The AttorneyGeneral150 the Privy Council directly quoted portions of the Freedom of Association and Protection of the Right to Organise Convention 1948 (No. 87) and referred to The Right to Organise and Collective Bargaining Convention 1949 (No. 98) (conventions ratified by Trinidad and Tobago) in concluding that there was no specifically delineated right to strike, either in those international labour law instruments or in their local legislation. There has been even further recognition of the potential import and impact of even unratified ILO conventions at the state level. The judiciary and other industrial relations adjudicators have relied on their terms as persuasive authority in the resolution of employment and labour law matters that are increasingly arising for determination. In two Caribbean countries judicial notice was taken of three core ILO conventions and one recommendation, namely: The Freedom of Association and Protection of the Right to Organise Convention 1948 (No. 87); The Right to Organise and Collective Bargaining Convention 1949 (No. 98); Termination of Employment Convention 1982 (No. 158) and Termination of Employment Recommendation 1963 (No. 119) in arriving at its decisions. The Industrial Court of Trinidad and Tobago in the dismissal cases of Bank and General Workers Union v Public Service Association of Trinidad and Tobago151 and Bank and General Workers Union v Home Mortgage Bank152 both referred to the provisions of ILO Recommendation No. 119 and Convention 158153 in deciding that aggrieved employees were dismissed in harsh and oppressive circumstances and in breach of the principles of good industrial relations.154 The court used 146 Cap 304:01. 147 Sections 3 and 4. 148 Claim No. 175 of 2005 delivered April 28, 2006 (unreported). 149 ILO (2010) International Labour Law and Domestic Law: A Training Manual for Judges, Lawyers and Legal Educators, ILO Publication, p. 3; see also Thomas, C., Olez, M. and Beaudonnet, X. (2004) ‘The use of international law in domestic courts: Theory, recent jurisprudence, and practical implications’ in Les normes internationales du travail:un patrimoine pour l’avenir; Mélanges en l’honneur de Nicolas Valticos, Geneva: ILO Publication; Beaudonnet, X. (2006) ‘How domestic jurisdictions use universal sources of international law’ in Labour Law: Its Trends and Potential, Geneva: ILO Publication, Labour Education, 2-3, No. 143-144. 150 (1969) 15 WIR 229 at p. 235. 151 TD No 15 of 2000 (unreported) delivered on April 27, 2001. 152 TD No. 140 of 1997 (unreported) delivered March 3, 1998. 153 Another such case is TD No. 2 of 2001 Banking Insurance and General Workers’ Union v Hindu Credit Union Cooperative Society Limited (unreported) delivered July 31 2001 at p. 58. 154 Requirement of Section 10 (3) and 10 (5) of the Industrial Relations Act. Chapter 2: Sources and Institutions of Employment and Labour Law 35 these ILO instruments to recognise two fundamental jurisprudential principles of employment and labour relations: a worker should not be dismissed without being provided with a fair opportunity to be heard in his own defence, nor should he be dismissed except for a valid reason associated with his capacity to perform his duties. In the latter case, the court acknowledged that although Convention 158 was not ratified by Trinidad and Tobago, ‘it was of no consequence … as it was not applicable as part of the domestic law … but as evidence of principles of good industrial relations practice which have accepted at an international level’.155 They therefore used the Convention as a guide to interpreting Section 10 (5) of Trinidad and Tobago’s Industrial Relations Act, which was prayed in aid by the dismissed worker. The Caribbean Court of Justice also examined the impact of the ILO Conventions 87 and 98, which both deal with the right of workers to freely organise and bargain collectively without the threat of sanctions from employers, in the Belizean Appeal case Mayan King Ltd v Jose L Reyes and Others.156 The case concerned the alleged unlawful dismissal of six workers because of involvement in union activities thus breaching the provisions of the Trade Unions and Employers Organisations (Registration, Recognition and Status) Act. This Act was passed ostensibly to fulfill Belize’s obligations under the two ILO conventions.157 In making its decision the CCJ considered not only this fact but also that the Act accorded with fundamental Constitutional provisions that: … have a major impact on work and living conditions, as well as on the development and progress of the economic and social system. The Act therefore promotes better job security and a more stable industrial, social and economic environment. The court thus implicitly acknowledged the importance of the relevant Conventions on the fabric of the nation and used them as an interpretative tool in considering Belizean Constitutional158 and statutory provisions.159 It even went further in referring to the ILO Director General’s Report in its deliberations,160 which arguably underscores the growing tendency of at least the CCJ to rely not only on international legal instruments but also publications of international organisations as interpretative aids to native legislative provisions. However, this approach should hardly be surprising since even though it operates two distinct jurisdictions - the original and the appellate161- both function parallel to each other being staffed by the same judges. Thus as Bernaz opined ‘… one can assume that in an institution where the same judges will settle both international and domestic disputes many opportunities will arise [for judicial dialogue] and the odds of keeping the exercise of the two jurisdictions strictly separated are low’.162 It is submitted that this probability augers well for the expansion of Commonwealth Caribbean labour and employment law jurisprudence, especially in states that are slow to enact national legislation to enliven their international obligations. The above-mentioned cases arguably substantiate the view that ILO conventions and recommendations as a source of labour and employment law can no longer be regarded as ‘amorphous [and] largely irrelevant … as we grow to recognize that this comfortable unconcern 155 TD No. 140 1997 Delivered March 3, 1998, p. 9. 156 (2012) 80 WIR 175. 157 (2012) 80 WIR 175 at 181. 158 Section 13. 159 Sections 4(1), (2)(g), 5(2)(b), (d) and (e) of the Trade Unions and Employers Organisations (Registration, Recognition and Status) Act. 160 (2012) 80 WIR 175 at 182 Internal Footnote 2: ‘See the Report of the Director-General of the International Labour Conference, 97th Session 2008 accessed 4 May 2012 at www.ilo.org/wcmsp5/groups/public/@ dgreports/@dcomm/documents/publication/wcms_096122.pdf’. 161 Discussed in detail below. 162 Bernaz, N. (2008) ‘The Caribbean Court of Justice: one court with two jurisdictions – a unique judicial institution?’ Unpublished paper delivered at International Law Colloquium, University of Georgia School of Law, 15 February, p. 9. 36 Commonwealth Caribbean Employment and Labour Law is no longer tenable’.163 They must now at least be considered a persuasive source of law in Commonwealth Caribbean jurisdictions and amenable for use as a tool of interpretation of statute and common law and therefore given more than a passing thought by governments, employers and employees alike.164 Apart from the direct judicial consideration of conventions and recommendations in local jurisprudence, it should be noted that the ILO operates various supervisory bodies whose decisions/pronouncements may also provide a source of legal guidance in the domestic sphere.165 Performing under the organisation’s reporting systems,166 these bodies examine whether States are in compliance with their obligations under the conventions and recommendations that they have ratified and/or adopted. The independent Committee of Experts on Application of Conventions and Recommendations167 (CEACR), which is appointed by the ILO Governing Body, consists of 20 persons from different geographic regions, legal systems and culture who possess legal qualifications.168 They are tasked with giving impartial objective decisions, comments and observations on reports that member States are required to provide to the ILO on a stipulated schedule. The CEACR issues a three-part Annual Report that provides general comments on member States’ adherence to their ILO Constitutional obligations and other international labour standards, while also giving a general survey of worldwide labour conditions. Another ILO supervisory body is the Conference Committee on Application of Conventions and Recommendations (CCAS), a tripartite body of the ILC that examines the CEACR’s Reports. The CCAS may call upon governments to appear before it and respond to observations made by the CEACR with a view to making recommendations to countries on how to address concerns regarding the problems raised.169 The ILO also operates a three-tiered complaints procedure system. Firstly, either aggrieved workers or employers can file a representation to the ILO that governments have failed to observe provisions of ratified conventions.170 Secondly, member States or the Governing Body itself may also file a complaint171 against another country alleging non-compliance with ratified convention requirements. Thirdly, because of the great importance placed on the principles of Freedom of Association, two specially constituted bodies were established to examine suspected infringement of trade union rights. The Governing Body Committee on Freedom of Association was instituted to consider complaints made by any member of the tripartite using a formal procedure where a de facto breach of a trade union right is alleged even if the country is de jure compliant. This committee is not obstructed by a country’s non-ratification of relevant Conventions nor does it need the consent of a recalcitrant government to perform its functions. After deliberations, it submits the findings and recommendations to the Governing Body for approval. The Fact Finding and Conciliation Commission on Freedom of Association is the 163 Barrow, D. (2012) ‘When and how judges and lawyers can use international labour law to solve labour disputes’, paper presented at Third Caribbean Course on International Labour Standards for Judges, Lawyers and Legal Educators, Port of Spain, 10 July. 164 See Cumberbatch, J. (2005) The Globalisation of Law and Justice, lecture presented at the Barbados Bar Association AGM, 4 June, where he argues ‘for a radical reform of the way in which international treaty provisions should be used in domestic legal fora’. 165 See Beaudonnet, X. (2006) ‘How domestic jurisdictions use universal sources of international law’ in Labour Law: Its Trends and Potential, ILO Publication, Labour Education 2-3 No. 143-144 at p. 15. 166 Section 22 ILO Constitution. 167 Article 22 of the ILO Constitution. 168 Currently Mr Denys Barrow, Retired Justice of Appeal of the Court of Appeal of Belize and former Justice of Appeal of the Eastern Caribbean Supreme Court and former High Court Judge for Belize, St. Lucia, Grenada and the British Virgin Islands, represents the region on the Committee. 169 See generally Neilsen, H. K. (1995) ‘The Supervisory Machinery of the ILO’, 64 Nordic Journal of International Law, p. 129. 170 Article 24 ILO Constitution. 171 Article 26 ILO Constitution. Chapter 2: Sources and Institutions of Employment and Labour Law 37 second specialist body which operates only occasionally and whose mandate is to investigate violations of trade union rights matters referred to it by the Governing Body. As a general rule cases are not referred to this body without governmental consent and its aim is to discuss the situation with the requisite government with a view to resolving issues by consensus. It can also be designated as a Commission of Enquiry under Article 26 of the ILO Constitution to review complaints relating to ratified conventions. The rulings of these supervisory bodies have been regarded by some as ‘the most authoritative reading of [ILO] instruments’ and, as such, national courts may explicitly or implicitly take account of their decisions.172 However, the palpable weakness of this argument was revealed in R v The Secretary of State for Foreign and Commonwealth Affairs Ex-parte Council of Civil Service Unions and Others.173 In this case, the UK unilaterally withdrew the right of workers employed in a sensitive defence department to be members of a trade union of their choice on the grounds of national security. The affected union made a complaint to the Committee on Freedom of Association which, after reviewing the matter, concluded that the UK was in breach of Conventions 87 and 98 that the UK had ratified. Armed with this decision the unions proceeded to the local courts to seek redress, arguing that the government’s actions were in breach of its international obligations. However, the Court of Appeal was not swayed by this contention. They opined that the Articles of the conventions were ‘by no means clear … and very general’174 and that both conventions must be read in tandem with Convention 151 Labour Relations (Public Service) Convention 1978, which contained a proviso allowing national law to exempt employees whose duties were of a highly confidential nature from unionisation.175 As such, the government was justified in taking its decision. The union’s further appeal to the House of Lords was also dismissed, with Lord Fraser concurring with the courts below deeming the arguments as a ‘minor matter’ since the ‘Conventions are not a part of the law in this country’.176 It is apparent therefore that, however instructive the observations and recommendations of these bodies may be, it must always be remembered that they are not courts of law. If a definitive interpretation of an ILO convention is required the matter must be reviewed by the International Court of Justice.177 As such the impact of decisions from these supervisory mechanisms, though persuasive and beyond doubt of high moral value, are not conclusive and need not be regarded by courts and industrial tribunals in the domestic domain. Much depends on the issue to be adjudicated and such other specific considerations related to the matters in question. INFORMAL/VOLUNTARY SOURCES Custom and practice As noted previously,178 the substantive intervention of the law in various aspects of the employment relationship is a relatively new construct, especially in the Commonwealth Caribbean. Because of this lack of legislative activism many of the guidelines in the employment and labour law spheres developed on the basis of accepted norms in particular types of organisations and 172 See Beaudonnet, X. (2006) ‘How domestic jurisdictions use universal sources of international law’ p. 15 in Labour Law: Its Trends and Potential, Geneva: ILO publication, Labour Education 2006/2-3 No. 143-144. 173 [1984] IRLR 353. 174 Paragraph 48. 175 Article 1.2. 176 R v The Secretary of State for Foreign and Commonwealth Affairs Ex-parte Council of Civil Service Unions and Others [1985] IRLR 28 (HL) p. 33 at para 26. 177 Section 37(1) ILO Constitution. 178 See Chapter 1. 38 Commonwealth Caribbean Employment and Labour Law businesses. These include agreements negotiated and agreed to by employers and unions via the collective bargaining process, which form the basis of many existing customs and practice. For a custom and practice to become entrenched and thereby considered to be a source of employment law it must be notorious, certain and reasonable.179 However, it must also be supported by evidence. Justification for this position is found in the landmark case of Sagar v H Ridehalgh and Sons Ltd180 where the practice of withholding wages for work not done with reasonable skill, which was established for over 30 years and accepted within the milling industry, was deemed authoritative. It was held that the practice must be fair, not arbitrary or capricious, and be generally established in the industry, regionally or generally, well known and clear cut.181 These parameters are not always universally acceptable and may be distinguishable on particular facts. Thus in Samways v Swan Hunter Shipbuilders Ltd182 the employer’s claim that it was an established practice to revert workers to a lower paying job could not be sustained as it was not sufficiently well known generally to bind the worker. An area where custom and practice has been heavily canvassed is in disciplinary procedures, as typified in Marshall v English Electrical Co. Ltd183 where it was held that there was an established practice of using suspension as a disciplinary measure and, as such, its operation was incorporated into the employee’s contract. In the Commonwealth Caribbean the issue of the use of custom and practice was addressed in the Barbadian case of M’Jays Enterprises Ltd v Patrick Weeks.184 Here the Court of Appeal refused to accept the appellant’s contention that custom and practice within the vehicle rental trade allowed them to suspend the respondent as a disciplinary measure in response to alleged misconduct on the job. Simmons CJ found there was no evidence of such a longstanding practice as to permit incorporation into the employment contract. This is to be contrasted with the Jamaican case of King v The Buzzer Ltd.185 where the Supreme Court found that the use of suspensions as a disciplinary measure, though sometimes abused, was a generally widespread practice in Jamaica, and specifically within the defendant’s organisation, for upwards of 50 years. It is to be noted that some customs were imported from the UK as a common law concept for domestic workers, as in the Belizean case of Martin v Abebe186 where the court declared that such contracts were for a one-year period and the customary notice in such cases was one month. In the case of R v IDT ex-parte Reynolds Jamaica187 the concept was also canvassed as the main argument against ‘arms of management’ being allowed to obtain union representation via a representational rights poll. The Supreme Court held that even if this view could be accepted, there was no proof that this was indeed an accepted custom and practice for any appreciable length of time. As such it would appear that custom and practice as a source of employment law will only be efficacious in particular circumstances where there is evidence supporting a longstanding, accepted system of operation which has crystallised into a full-fledged norm.188 However, the incidences where reliance is placed on this source are diminishing in light of the increased usage of written contracts and statements of particulars of employment. 179 Devonald v Rosser & Sons [1906]2 KB 728. 180 [1931] 1 Ch 310. 181 See Jamaica Public Service v National Workers Union IDT award 3 of 2003 (unreported) delivered August 29, 2003 [JM 2003 IDT 10]. 182 [1975] IRLR 190. 183 [1945] 1 All ER 635 (CA). 184 (2003) Barbados Magisterial Appeal No. 9 (CA) (unreported) delivered November 11, 2004. 185 (1980) 17 JLR 194. 186 Summary Action No. 23 of 1982 (unreported) delivered November 29, 1982. 187 (1980) 17 JLR 16. 188 In some legislation the existence of customs has also been recognized - see Jamaica ETRPA section 3(3) (c) (ii) and St. Kitts and Nevis Protection of Employment Act Section 3. Chapter 2: Sources and Institutions of Employment and Labour Law 39 Collective labour agreements The antecedents of unionism in the Commonwealth Caribbean lends itself to ensuring that collective labour agreements are an important source of employment and labour law. This is predicated on the fact that although the legal relationship between employer and worker is determined by the contract of employment, where there is union representation many individual contractual terms are established by the collective bargaining that is embodied in collective agreements.189 Generally speaking, such instruments serve a twofold purpose. In addition to settling these contractual terms (the normative function), they often also regulate the relationship between the unions and the employers, which is referred to as their ‘procedural or constitutional function’.190 It is, however, important to note that these agreements cannot incorporate unlawful terms notwithstanding the parties’ consent. Thus in Enmore Estates Ltd. v D.R. Singh191 the Guyanese Court of Appeal refused to validate a term in the collective bargaining agreement that removed the entitlement to overtime pay, which was guaranteed by the Factories Act. The term was not only a breach of the statute but also contrary to public policy, being advanced to evade the Act’s provisions and therefore void ab initio. It is said that at common law collective labour agreements are generally considered as ‘gentleman’s agreements’ and consequently legally unenforceable192 or binding either by the union itself or the employee individually. The union is not strictly to be considered an agent of the worker193 while the individual is considered a third party to the bargain with no privity.194 This construction was generally accepted in the Commonwealth Caribbean in the jurisdictions that have not legislated otherwise. Thus, in the Jamaican case R v Industrial Disputes Tribunal and Half Moon Bay Hotel Limited,195 Campbell J of the Full Court opined that ‘the better legal view of such agreements is that they are not enforceable because in the contemplation of the parties … they were never intended to be enforced by order of the court but only by industrial action’, while Parnell J stated ‘it is and always has been construed to give rise to mutual obligations only’. In R v Industrial Disputes Tribunal Ex-parte Shipping Association of Jamaica196 the judiciary began to shift away from this strict approach, which incidentally was never truly the extent of the UK dicta. In this case, where the Industrial Disputes Tribunal’s award was being impugned for failing to properly regard a collective labour agreement executed by the parties, the judicial review court held that the agreement was highly relevant, especially when its terms were clear. This view resonates with the contention that once the parties show an intention to be bound by all or particular sections of the collective labour agreement, it may be enforceable. Thus in National Workers Union and Collington Campbell v Jamaica Broadcasting Corporation197 the court was moved to state that ‘there was no rule to the effect that collective labour agreements were binding in honour only’. Indeed their Lordships were of the view that each agreement must be examined on the basis of its own specific terms to ascertain their enforceability. A similar view 189 See Shipping Association of Georgetown and Bookers Shipping (Demerara) Ltd v Arthur Hayden (1975) 22 WIR 135; National Coal Board v Galley [1958] 1 All ER 91 (CA). 190 Deakin, S. and Morris, G. (2012) Labour Law (6th Ed.), London: Hart Publishing, p. 69. 191 (1976) 22 WIR 206; see also Guyana Electricity Corporation Inc. v Stoby and others (2002) 66 WIR 232. 192 See Ford Motor Co. Ltd v Amalgamated Union of Engineering and Foundry Workers [1969] 2 All ER 481. 193 St Albans Holdings Limited v Mackey et al. [1990-91] 4 Caribbean Commercial Law Reports 182; but see an alternate view in Citrus Company of Belize v Garcia (1988) 1 Bz Law Report 340 that the actions of the parties evinced an intention that the acts of the union as agents were intended to bind the parties. 194 See Edwards v Skyways Ltd [1964] 1 All ER 494. 195 (1979) 16 JLR 333, 340 and 349 (SC). 196 (1979) 16 JLR 442. 197 (1981) 18 JLR 11. 40 Commonwealth Caribbean Employment and Labour Law was expressed in the Barbadian Appeal of Chefette Restaurant Limited v Cox198 where the terms of the collective labour agreement dealing with an employee’s duty to undertake overtime was examined. Here the Court of Appeal found there was no express or implied intention by the parties to make it legally enforceable. Based on this line of cases, it could be stated that collective labour agreements will have to be carefully worded to ensure their enforceability by the courts. Considering that many are not drafted by attorneys199 and are often merely ‘cut and paste’ updates in relation to specific issues, parties may find it difficult to glean the desired results if agreements become the subject of disputes and come up to be interpreted. In light of the abovementioned common law handicaps, it is unsurprising that some Commonwealth Caribbean countries have opted to remove the spectre of uncertainty surrounding the legality and enforceability of collective agreements by legislating on the issue. Two approaches have been taken in this regard. In Antigua and Barbuda,200 St. Lucia,201 and Guyana202 legislation has provided that once the collective agreements themselves have made specific provisions for all or portions thereof to be legally binding and they are lodged with the appropriate government functionary, they are to be treated as such. However, the agreements must be in writing, have a specified time frame for operation, have provisions for dispute resolution and be signed by the parties,203 whereupon they will be enforceable as any other contract in the courts.204 These countries therefore operate a system where, apart from certain basic provisions that are mandated by the legislation, the parties are allowed to substantively negotiate and fix their own agreements without the intervention of the state machinery. The Bahamas205 and Trinidad and Tobago206 have instituted more comprehensive and somewhat elaborate procedures for the acceptance and registration of such agreements. In both situations the industrial court or tribunal and also the Minister play a pivotal role. Firstly, parties to the proposed agreement must send a copy of the draft proposals to the Minister and/ or the Court/Tribunal for registration.207 These agreements must contain adequate dispute settlement provisions208 arising from their application, which could be considered an integral component allowing avenues to resolve issues internally. After consideration by the Minister209 the agreement may either be transmitted with or without concerns210 to the court or tribunal for action211 or, in the case of the Bahamas, it may be registered if the Minister has no objections.212 Where the court or tribunal reviews the draft agreement it may hear arguments from the parties before making a decision.213 In both jurisdictions the adjudicatory body may thereafter register 198 Suit No 7 of 1983 (CA) (unreported) delivered February 8, 1985. 199 Henry, Z. (1972) Labour Relations and Industrial Conflict in the Caribbean (1st Edition) Columbus Publishers, p. 116. 200 Labour Code K26 and 27. 201 Labour Code Section 379. 202 Labour Act Section 30. 203 St. Lucia requires that the parties to the Agreement must execute the same in the presence of the Labour Commissioner or his representative (section 378 (1) (f)). 204 Section 379 (3) of the St. Lucia Labour Code make agreements enforceable in the Tribunal created under the Act. 205 Section 46-62 Industrial Relations Act. 206 Sections 43-50 IRA. 207 Section 44 (1) Trinidad IRA; Section 48 Bahamas IRA. 208 Section 43 (2) Trinidad IRA; Section 46 (2) Bahamas IRA. 209 Must be within 14 days Section 45 (1) Trinidad IRA; if the Minister fails to act, either party to the dispute may approach the court personally to register the agreement. 210 Section 45 (4) Trinidad IRA; the Minister’s concerns may include the fact that an application by another union for certification is pending with the RRCB, the agreement does not have dispute settlement provision or is below the time threshold, or an application to vary the bargaining unit is pending. 211 Section 45 (1) Trinidad IRA. 212 Section 49 Bahamas IRA. 213 Section 49 (2) Bahamas IRA; Section 46 (2) Trinidad IRA. Chapter 2: Sources and Institutions of Employment and Labour Law 41 the agreement without modifications, with some changes if the parties consent, or it may refer it back to the parties for further negotiations.214 In Trinidad and Tobago the Industrial Court may refuse to register the agreement outright, if it conflicts with the Constitution or if another registered agreement is in force,215 and substitute its own amended version.216 However, what is extremely critical to note is that the agreement will not be effective unless it is registered,217 thereupon it becomes binding on the parties.218 In Trinidad and Tobago, upon registration, the agreement is deemed to be the employee’s contractual terms,219 which can only be enforced by the Industrial Court.220 In both jurisdictions collective agreement must be for a minimum term, which may be reduced if good and sufficient reason is given.221 In Trinidad it was opined in Texaco Trinidad Inc. v Oilfields Workers’ Trade Union222 that registered collective agreements constitute a ‘statutory code’ and their provisions cannot be altered by the parties or even the industrial court during its currency. However, it ceases to be binding after its expiration, save in the case of procedures contained therein for avoiding and settling disputes.223 Interestingly, according to Osadebay J in the Bahamas: it … must be noted that where an industrial agreement has been negotiated between trade unions of employees and trade union of employers the agreement must be executed by all the employer members of the trade union of employers individually as if each employer is contracting with the trade union if it is to bind that employer since such agreements do not fall within the definition of an industrial agreement.224 Also it is noteworthy in both jurisdictions that some agreements are unenforceable; for example, in the Bahamas those that restrict trade union members from entering individual agreements with their employer, agreements between trade unions, and agreements for the payment of penalty to trade unions by members or to receive benefits from trade unions.225 In addition to these exclusions, Trinidadian law restricts agreements that enjoin employers to hire or favour a union member, which in effect outlaws ‘closed shop’ operations.226 Essentially therefore in these jurisdictions the possibility exists that the will of the adjudicatory body may override the parties’ own agreement. This position stems from the fact that the best interest of the country generally may be viewed as being overarching in light of fiscal and social realities. Work rules It is not uncommon for organisations to prepare written work rules, company handbooks or policies, intra-office memorandum and notices, which may include provisions affecting workers’ 214 Section 49 (2) Bahamas IRA; Section 46 (1) Trinidad IRA. 215 Section 46 (3) Trinidad IRA – supplemental agreements are excluded. 216 Section 46(1) (d). 217 Amalgamated Workers Union and Chief Personnel Officer Trade Dispute 159 of 1987 (unreported) delivered December 16, 1988. 218 Sections 50 and 51 (1) Bahamas IRA; Section 47 Trinidad IRA; in Trinidad the registered majority union is the agent of the workers but in the Bahamas each worker is enjoined in addition to the employer and its successor if applicable. 219 Section 47 (2) Trinidad IRA. 220 Section 47 (1) Trinidad IRA. 221 Section 46 (2) Bahamas IRA; Section 43 (1) Trinidad IRA. 222 (1973) 22 WIR 516. 223 Oilfields Workers’ Trade Union v Alstons Building Enterprises Limited Trade Dispute No: ICA 11/86 (unreported) delivered 26 November 1987. 224 Osadebay, E. (2005) Labour Law in the Bahamas (An Outline) (2nd Ed.), The Nassau Guardian, p. 37. 225 Section 53 Bahamas IRA. 226 Section 43 (5) Trinidad IRA; see also generally McCarthy, W. E. J. (1964) The Closed Shop in Britain (1st Ed.) Oxford: Basil Blackwell. 42 Commonwealth Caribbean Employment and Labour Law employment. Determining if these documents are sources of the employment law will depend upon various factors, including whether they are incorporated into the employment contract either by express or implied terms and the intent of the parties. Whether the subject term is clear and unambiguous will also be a factor for consideration. Thus an employee’s contract may refer specifically to the employee handbook and its provisions as being a part of the contract and in such cases, once he has reasonable notice of them, they may be implied as terms of the contract. However, not all works rules are contractual. In Secretary of State for Employment v ASLEF (No.2)227 Lord Denning MR stated that generally, although an employee may sign a form indicating they will abide by rules, this does not make them contractual. However, this principle does not put the matter at an end since, if the rule is an articulation of managerial prerogative, it may well have other implications for the worker should he refuse to obey it. In the Barbadian case of Rogers v Discovery Bay Inn Ltd.228 the effect of work rules was extensively examined. Here the plaintiff, a bartender, was dismissed based on his rude behaviour towards guests in violation of the terms and conditions of the staff rules of the hotel and he claimed wrongful dismissal. The court held that the staff rules were not incorporated into nor did they form part of Mr Rogers’ employment contract with the hotel. However, it was a manifestation of the policy of the management in relation to its staff and the breach rendered him liable to dismissal with just cause by the employer. Chase J in his reasoning stated: ‘The rules are instances of lawful managerial commands … and there was an implied duty on the plaintiff to cooperate with the defendant and obey his lawful orders’.229 The Jamaican case of Saneth White v Victoria Mutual Building Society230 clearly illustrates this proposition. The plaintiff, an employee of the defendant company, was dismissed for fighting in a ‘disgraceful incident’ in the car park of her children’s school, which involved a fellow female co-worker, and they were at the time both attired in the company’s uniform. In dismissing her claim for wrongful dismissal, Campbell J held that ‘the V.M.B.S Staff Rules and Regulations make threatening and violent behaviour an offence that may bring about dismissal of an employee’. As such the employer was well within its rights to dismiss having found abundant evidence that she acted in such a manner at an internal inquiry. However, as with customs and practices, increased formalisation of employment contracts have reduced the reliance on this device. EMPLOYMENT AND LABOUR LAW INSTITUTIONS Courts In the Commonwealth Caribbean the ‘conventional court’ plays an influential role in the employment and labour law sphere. Since the common law undergirds many basic tenets, and the courts continue to evolve these principles, it retains its indispensable position. Thus the court hierarchy, with its heavy reliance on the doctrine of precedent, of necessity comes into play. Antoine describes this hierarchy as being a ‘three-tier structure corresponding to the rank which the particular court is accorded in the judicial system’.231 The three levels are: inferior 227 [1972] 2 All ER 949 (CA). 228 [1988-89] 1 Caribbean Commercial Law Reports 225. 229 Ibid. p. 243. 230 Suit No. HCV0155/2005 (unreported) delivered February 11, 2005 [ JM 2005 SC 16]. 231 Antoine, R.-M. B. (2009) Commonwealth Caribbean Law and Legal Systems (2nd Ed.), Abingdon, Oxon: Routledge Cavendish, p. 289. Chapter 2: Sources and Institutions of Employment and Labour Law 43 courts (generally courts with summary jurisdiction based on the provision of statutes); superior courts or courts of record (High Courts and Courts of Appeal); and final appellate bodies (either the Judicial Committee of the Privy Council or the Caribbean Court of Justice dependent on the jurisdiction). In Jamaica there is a unique jurisdiction (the resident magistracy) that falls between the inferior and superior courts, which are called intermediate courts having mixed jurisdiction to hear particular cases. Inferior courts Inferior courts are created by legislation and operate in defined geographic locations in each jurisdiction. They generally consist of magistrates and petty sessions courts and have limited powers since they are constrained by the statutory provisions that govern their existence.232 Although they may hear both criminal and civil matters, their decisions and judgements cannot exceed the mandated boundaries for monetary fines imposed or quantum of damages awarded based on the genre of cases being adjudicated. In the criminal jurisdiction, inferior courts operate in its trial function only in matters where breaches of employment/labour statute create summary offences. For example, in Barbados where an employer contravenes the provisions of the Employment of Women (Maternity Leave) Act, he may be subject to a maximum fine not exceeding 2,000 dollars or imprisonment for up to twelve months.233 In some jurisdictions a finding of guilt in relation to a criminal offence empowers the magistrate to concurrently order the payment of monetary sums commensurate to the employment benefit provided by the enabling statute without recourse to separate legal proceedings for recovery of debt.234 Generally, common law precepts and in some instances statutory provisions can invoke the civil jurisdiction of an inferior court where employment contracts are breached and litigants seek compensation within the limits of legislative guidelines. In the Jamaican context, the Resident Magistrate Court is bestowed with the specialised jurisdiction to hear and determine contractual claims where the provisions of the Employment (Termination and Redundancy Payments)235 and Holidays with Pay236 Acts are applicable. In these two provisions the court is provided with a fixed monetary limit for awarding compensation. Appeals from inferior courts are normally made directly to each jurisdiction’s Court of Appeal. Although inferior/intermediate courts, by virtue of their limited jurisdiction and somewhat less involved procedural requirements, tend to provide a quicker timeframe for resolution of legal actions than in superior courts, they have obvious disadvantages in labour/employment law matters. The magistrates generally lack experience with the peculiarities of the employment relationship and the important role played by custom and practice that impacts on contractual dealings between the parties. They sometimes bring excessive legalism and strict procedural rules to bear in attempting to resolve disputes. The heavy reliance on the oral contract within the Caribbean also stymies the judiciary’s role in making decisions between competing parties, with disproportionate resources to mount legal arguments often resulting in adverse rulings for the weaker employee. 232 Noel v Noel (Unreported) Civil Appeal No 4 of 1998, delivered November 23, 1998 (CA, Antigua & Barbuda). 233 Section 9. 234 Jamaica Maternity Leave Act s 7 (5) and Minimum Wage Act s 5 (2). 235 Section 17 - $1 million; see Thomas Welsh v Caribbean Aviation Training Centre et al. RMCA 09 of 2008 (unreported) delivered April 3, 2009. 236 Section 10 A - $500,000. 44 Commonwealth Caribbean Employment and Labour Law Superior courts Superior courts within the Commonwealth Caribbean are usually divided into two tiers - High Court (sometimes also referred to as the Supreme Court) and Court of Appeal. Both institutions are, however, often summarily referred to as the ‘Supreme Court’. These courts derive their existence from the written constitutions of each jurisdiction. In the Eastern Caribbean recognition is given to a regional court known as the Eastern Caribbean Supreme Court,237 which comprises a Court of Appeal and a High Court both headed by a Chief Justice, while associate puisne judges man the High Court in each jurisdiction.238 High/Supreme Courts The High Court is principally a trial court or court of first instance with original jurisdiction to determine cases. However, in some jurisdictions it has an appellate jurisdiction over matters arising from the inferior courts and a review function over the decisions of statutory/administrative tribunals, an important issue in employment and labour law where such bodies are routinely utilised. These courts have unlimited jurisdiction over both civil and criminal matters in determining sentences or making compensatory awards. This means that civil claims may be made by parties in the employment relationship for any breach of contractual239 or statutory employment terms, although more often than not such cases are limited to matters above the monetary jurisdiction of inferior courts. Claims may also be made in tort for breaches of statutory duty240 or negligence (personal injury) claims241 arising from accidents on the job. Determination of important points of law by way of Declaration242 is also usually sought at this level, as well as applications for injunctive relief where employers and the state allege breaches of regulatory legislation in the area of industrial action.243 Criminal proceedings in employment and labour law matters are rarely commenced in the High Court as most offences are created by statute and confined to the summary jurisdiction. The only other cases of criminal import addressed by the High Court in this field are contempt of court proceedings.244 It is to be noted that in Trinidad and Tobago the specialist Industrial Court245 is a superior court of record possessing all the requisite powers thereof. By far the most important role of the High/Supreme Court in the employment and labour law arena is its inherent appellate supervisory or review function.246 Generally only petty sessions courts’ appeals are countenanced. However, in Barbados appeals from magistrates’ courts may go to a special division of the High Court called the Divisional Court.247 Regarding its 237 Established by the West Indies Associated States Supreme Court Order No. 223 of 1967. 238 Subscribing States are Antigua, Dominica, Grenada, St. Lucia, St. Vincent, St. Kitts and Nevis, Montserrat, Anguilla and the British Virgin Islands. 239 Walton & Morse v Dorrington [1997] IRLR 488 - the employer breached an implied term to provide a safe workplace. 240 Pumps and Irrigation Limited and the Jamaica Public Service Company Limited v Winston Pusey (1995) 32 JLR 326 ( Jamaica); Aston Fitten v Michael Black Limited and Ken Henry (1987) 24 JLR 252. 241 Ifill v Rayside Concrete Works Limited (1981) 16 Barb L R 193; Cranston v Mars Auto Parts Limited (2005) No. CL 1996/C117 (unreported) Jamaica; Forbes v Burns House Ltd (2000) Supreme Court The Bahamas No. 432 of 1995 (unreported). 242 Sagicor Insurance v Carter and others (2007) 71 WIR 74. 243 See Bermudan appeal Burgess v Stevedoring Services Limited [2002] IRLR 810 and Jamaica LRIDA Section 32. 244 See Jamaica Labour Relations and Industrial Disputes Act Section 31 (2). 245 Section 4 (1) Industrial Relations Act (discussed further below). 246 See generally Fiadjoe, A. (1999) Commonwealth Caribbean Public Law (2nd Ed.), Abingdon, Oxon: Routledge Cavendish Publishing, Chapter 2. 247 See Magistrates’ Jurisdiction and Procedure Act (Cap 116) (1971 Rev), s 131 and Rudder v Dallaway (1984) 38 WIR 58; in practice it appears that most employment/labour appeals are heard by the Court of Appeal. Chapter 2: Sources and Institutions of Employment and Labour Law 45 review function, at common law these courts inherited the capability to ‘maintain applications for prerogative writs’ from their colonial predecessors.248 The High Court is also enjoined to facilitate judicial review proceedings where citizens allege breach of fundamental rights by organs of the State as guaranteed by the written constitutions of all Commonwealth Caribbean countries.249 Therefore, decisions from statutorily created industrial tribunals (discussed below) are subject to the High Court’s jurisdiction. Many of the enabling statutes possess ouster clauses that stipulate that the tribunal’s orders are ‘final and conclusive’, or not to be ‘questioned, challenged, appealed, reviewed or quashed’, while concurrently providing that decisions are only impeachable on points of law250 or certain specified grounds.251 Lord Diplock, in the celebrated case of Council for Civil Service Unions v Minister for the Civil Service,252 distilled the grounds of judicial review to be ‘illegality, irrationality and procedural impropriety’. As such, the court may only impugn decisions of an inferior tribunal on these bases, and cannot substitute its own views, since it is the decision-making process that is being examined and not the decision itself. This results from the established view that such tribunals are the final arbiter of the unique facts of each case, being rightly constituted to make these determinations. The supervisory role of the High Court should therefore not be confused with its appellate function. Review is purely an exercise in evaluating the legality of the inferior body’s decision. The principle was deftly articulated by Carey JA in Hotel Four Seasons Limited v NWU253 speaking of Section 12 (4) (c) of the LRIDA: Questions of fact are thus for the [Industrial Disputes Tribunal] and the Full Court is constrained to accept those findings of fact unless there is no basis for them. It is right then to emphasize the limited functions of the Full Court and to observe parenthetically that the Full Court exercises supervisory jurisdiction and is bereft of any appellate role when it hears certiorari proceedings from the Industrial Disputes Tribunal. In contrast, the appeal process is usually statutorily based, made on specific grounds where the subject ruling can be replaced or remitted for rehearing. Fiadjoe suggests that this dichotomy is ‘somewhat superficial and very confusing … because there is some overlap between the two processes’.254 The choice of pursuing judicial review vis-à-vis an appeal simpliciter rests upon the appropriateness of the remedy being sought, as decided in the case of O’Reilly and Others Appellants v Mackman and Others255 preserving the safeguards of good administration. Thus, where the decision being challenged is that of a public body such as an industrial tribunal or board of inquiry, judicial review is the most appropriate avenue to seek redress. Remedies available include the prerogative orders of mandamus, certiorari, prohibition, injunctions and declarations.256 248 See Re Application by Guyana Telephone and Telegraph Company Limited Suit No 4491 of 1995, decided on 13 January 1997 (Unreported) Guyana. 249 See Collymore v AG (1969) 12 WIR 5; [1970] AC 538. 250 Jamaica Labour Relations and Industrial Disputes Act s 12 (4) (c). 251 Dominica Industrial Relations Act s 15 (2). 252 [1985] AC 374 at 410. 253 (1985) 22 JLR 201 at 204 F-H ; see also R v IDT ex p Jamaica Civil Service Association (Unreported), Suit No M 36 of 2001, decided 12 April 2002 (SC, Jamaica), at pp 6–7. 254 Fiadjoe, A. (1999) Commonwealth Caribbean Public Law (2nd Ed.), Abingdon, Oxon: Cavendish Publishing, p. 19. 255 [1982] 3 WLR 1096. 256 See further de Smith, S. and Brazier, R. (1973) Constitutional and Administrative Law (2nd Ed.), London: Penguin, Ch. 30. 46 Commonwealth Caribbean Employment and Labour Law Courts of Appeal In contrast to the High/Supreme Courts, the Courts of Appeal exercise only appellate function, hearing appeals from the magistrate courts, high courts and special courts. Thus, for example, appeals from the Trinidad and Tobago Industrial Court are transmitted directly to that country’s Court of Appeal,257 so too are the decisions from the Bahamas Industrial Tribunal.258 Their role and function impact the labour and employment law landscape in that their decisions have the capability of conclusively determining legal points if cases are not further appealed. An example of this is the Jamaican criminal appeal case of Valerie Juggan-Brown and Marksman Limited v Regina259 where a union attempted to seek bargaining rights for security guards, relying on the amended provisions of the Labour Relations and Industrial Disputes Act. The employer refused to supply information requested by the Ministry of Labour to process the union’s claim, prompting the initiation of prosecution in the Resident Magistrate court. The magistrate found the company guilty of refusing to provide the required information, but the Court of Appeal quashed the conviction on a procedural point. Thus the substantive issue of whether the marginalised security guards were eligible for union representation was never addressed and the workers remain unrepresented with somewhat deleterious effects. Although the Court of Appeal’s role is limited to points of law on appeal some of the criticism levelled at the inferior level may still be applicable. Often members of the court are not aware of or au fait with many of the underlying factors governing employment relationships and may, therefore, take a narrow approach to their duties. The view held by some260 that a dedicated appellate Court, boasting a tripartite makeup with appropriate safeguards, akin to the UK Employment Appeals Tribunal261 should be adopted in the region has some merit. Appeal Court pronouncements on issues raised in decisions given by the fledgling Trinidadian Industrial Court262 and the Jamaican Industrial Disputes Tribunal263 evinced a marked lack of understanding by the Justices of Appeal of the underlying character of the employment relationship. They preferred to take a wholly literal approach to interpretation of statutory provisions, usually to the detriment of worker or their representatives.264 Rattray opined that the ‘inadequacy of the application of strict common law contractual circumstances … has not yet been grasped by our Court of Appeal’265 and therefore a ‘Charter of Rights enunciated in the clearest terms not subject to complete judicial interpretation’ should be formulated. This observation underscores the judiciary’s espoused view that any defects or deficiencies in the law was within the purview of parliament to address. Happily, it appears that the severe view taken by Courts of Appeal has over time become less stringent. Their judgments in cases such as Village Resorts Limited v IDT and Uton Green266 are proof of this assertion, with Antoine lauding 257 Trinidad and Tobago Industrial Relations Act s 18 (2). 258 Bahamas Industrial Relations Act s 64. 259 RMCA No 11/06 (unreported) delivered December 18, 2006 (CA) Jamaica. 260 See Ramchand, L. (1994) ‘The Jurisdiction of Labour Courts with particular reference to the Industrial Court of Trinidad and Tobago’ p. 40 in Proceedings of the Caribbean Conference on Industrial Courts ILO and Employer Consultative Association of Trinidad Publication Port of Spain Trinidad and Tobago 28-30 November 1994. 261 Composition described in Smith, I. and Baker, A. (2010) Smith and Woods Employment Law (10th Ed.), Oxford: Oxford University Press, p. 26. 262 See Trinidad Bakeries Limited v National Union of Foods and others (1967) 12 WIR 320; Fernandes (Distillers) Limited v Transport and Industrial Workers Union (1968) 13 WIR 336. 263 R v Industrial Disputes Tribunal, Ex Parte Palace Amusement Co Ltd (1982) 19 JLR 26 & R v Industrial Disputes Tribunal Ex Parte Alcan Jamaica Ltd (1980) unreported, Jamaica (SC) Suit M 35 of 1980 delivered December 1, 1980 [JM 1980 SC 43]. 264 See Cowell, N. (1992) Judicial Intervention and the Changing Balance of Power in Jamaican Labour Relations, paper presented at the Symposium in Honour of Carl Stone, UWI Mona, Jamaica, 16-17 November. 265 Rattray, C. (1985) The Worker and the Law, Joint Trade Unions Research Centre, Jamaica, p. 13. 266 (1998) 35 JLR 292. Chapter 2: Sources and Institutions of Employment and Labour Law 47 the efforts of the court in recognising the need of ‘labour law to reflect the changing social conditions as no other area of law has such direct implications for society and individuals’.267 Judicial Committee of the Privy Council Save for three states,268 the Judicial Council of the Privy Council269 represents the zenith of the hierarchy of courts in the region being the final court of Appeal.270 Of the 13 countries that still approach the Privy Council, nine are from the Commonwealth Caribbean.271 From its inception, one of the Council’s major objectives was to support consistency within the common law throughout the Commonwealth. It should be noted that it has a limited appellate function in that there is no intrinsic right to appeal in every case. In other words, an aggrieved party must either seek leave to appeal from the Court of Appeal (conditionally or not) or the Privy Council itself as a matter of grace. Aggrieved parties may also petition the Privy Council for special leave to appeal where this application is refused. Only in extraordinary cases will the Council countenance further appeals where it has already heard the substance of the new appeal.272 The avenues available for appeal are also restricted to matters elaborated by each country’s constitutions.273 For the purposes of employment and labour law, appeals usually relate to civil judgments that exceed statutory monetary limits, questions of great public importance274 that ought to be submitted to Her Majesty in Council for decision, or issues of constitutional interpretation. A celebrated labour law case in the latter category is the landmark case of Collymore v Attorney General275 where the Trinidadian constitutional provision that established the citizen’s right to freedom of association was held not to extend to the corollary ‘right’ to engage in industrial action in the form of a strike. Although this right of appeal is restricted, the Privy Council in Sundry Workers v Antigua Hotel and Tourist Association276 established that while Section 17 (4) of the Antigua Industrial Court Act ‘precludes any collateral challenge to a decision of the Industrial Court by judicial review or otherwise … once the Court of Appeal has entertained an appeal … and has given its decision thereon Section 17 (4) ceases to be of any relevance’. As such, a constitutional right of appeal exists once the original appeal has been heard by the Court of Appeal. The Privy Council is not obliged to follow its own precedents which, in theory, presents the foreseeable likelihood or challenge of inconsistency in judgments and, indeed, instability of the legal framework. However, in practice, the Council seldom rules against its previous decisions. This practice has the effect of constraining the Council in how far it will extend the common law in similar scenarios. In effect therefore the Privy Council’s appeal functions are severely limited by various mechanisms, some imposed while others are assumed, and this has 267 Antoine, R.-M. B. (2002) ‘Labour Law in the New Globalized Environment and the Failure of the Voluntary Model’ p. 385 in Cowell, C. and Branch, C. (Eds) Human Resource Development and Workplace Governance in the Caribbean, Kingston, Jamaica: Ian Randle Publishing. 268 Barbados, Guyana and Belize who subscribe to the Caribbean Court of Justice (discussed below). 269 Established by the Judicial Committee Act of 1833. 270 See generally Antoine, R.-M. B. (2009) Commonwealth Caribbean Law and Legal Systems (2nd Ed.), Abingdon, Oxon: Routledge Cavendish, Ch. 16. 271 These are Jamaica, Trinidad and Tobago, Antigua and Barbuda, Grenada, St. Lucia, St. Vincent and the Grenadines, St. Kitts and Nevis, Dominica, and the Bahamas. 272 Endell Thomas v Attorney General of Trinidad and Tobago Privy Council Appeal No. 20 of 1989 (res judicata pleaded). 273 See Jamaica s 110, Trinidad ss 54 and 109, Barbados s 87, Antigua and Barbuda s 122. 274 See dicta of Lord Bridge in Sundry Workers v Antigua Hotel and Tourist Association (1993) 42 WIR 145 p. 151. 275 [1970] AC 538. 276 (1993) 42 WIR 145. 48 Commonwealth Caribbean Employment and Labour Law the capability of negatively impacting parties who seek redress at the highest levels. Although the Court is not mandated to sit exclusively in London277 it rarely does elsewhere,278 forcing appellants to journey to the UK to have matters determined. The exorbitant expenditure associated with such travel coupled with attendant attorney’s costs279 virtually constitutes inaccessibility to the average litigant, who sometimes relinquishes the option of pursuing otherwise promising appeals on account of the expense. During the period 1962 to 2012, the Privy Council considered a total of 43 appeal cases280 relating to employment and labour law issues from the Caribbean. More than half of the Council’s conclusions accorded with the decisions of the courts/tribunals below, thus vindicating their judgments. Some of these decisions have had far-reaching effects, not just for the Caribbean but also within the Commonwealth: notably the Jamaican appeal case of General Engineering v Kingston and St. Andrew Corporation,281 which is often cited as authority regarding the illegality of ‘go-slows’ as a form of industrial action. Another such case is the Bermudan appeal in Burgess v Stevedoring Services Limited282 where the Privy Council distinguished cases where there were deliberate breaches of implied contractual terms when workers undertook ‘work-to-rule’283 from the instant matter where employees did not attend work as they were not obliged by their contract to provide services. Thus the region has indeed made its contribution to the expansion of common law jurisprudence in the field of labour law.284 As the final court of appeal the Privy Council’s judgements have definitive import in the employment and labour law realm. The continuing discourse within the region of whether this function should be retained therefore has serious implications for the discipline. The first president of the Caribbean Court of Justice, Michael De la Bastide, rightly opines that: … a number of these decisions which have extremely important consequences for the whole community are really policy decisions involving the weighing of competing interests and considerations … the decisions a final court of appeal is called upon to make are sometimes not very different from those made by a democratically elected parliament. In making such decisions one is determining what is best for a particular society at a certain point on their history. It is essential for the decision makers to have intimate knowledge acquired first hand of the society for whom the decision is made.285 This view resonates in the employment law arena when juxtaposed against the unique historical underpinnings in the Caribbean workplace and the pivotal role played by custom and practice in the operations of industrial relations mechanisms. It has been opined by various Caribbean jurists and commentators that the value of political independence is belittled by the sustained reliance on the adjudication of the court.286 Indeed in 2009 Lord Phillips, then prospective President of the UK Supreme Court, was quoted as saying that he wished ‘to curb the disproportionate time senior justices spent hearing legal appeals from independent Commonwealth countries to the Privy Council in London’ and that ‘in an ideal world, Commonwealth countries 277 Ibralebbe v The Queen [1964] AC 900. 278 It made history in 2006 by convening in The Bahamas for the first time and has returned there twice since. 279 Le Sueur, A. (2001) What is the future for the Judicial Committee of the Privy Council, The Constitution Unit, University College London, available online at www.ucl.ac.uk/spp/publications/unit-publications/72.pdf. 280 Information obtained from www.bailii.org. 281 [1988] 3 All ER 867. 282 [2002] IRLR 810. 283 See Secretary of State v ASLEF (No. 2) [1972] 2 QB 455. 284 See also discussion on this point generally in Antoine, R.-M. B. (2009) Commonwealth Caribbean Law and Legal Systems (2nd Ed.), Abingdon, Oxon: Routledge Cavendish, p. 323. 285 De la Bastide, M. (1985) ‘The Case for a Caribbean Court of Appeal’, 5 Caribbean Law Review 401 at p. 429. 286 Ramphal, S. (2011) Creating a Regional Jurisprudence, address given at Inaugural Distinguished Jurist Lecture of the Trinidad and Tobago Judicial Education Institute, 29 September; De La Bastide, M. (1985) ‘The Case for a Caribbean Court of Appeal’ 5 Caribbean Law Review 401. Chapter 2: Sources and Institutions of Employment and Labour Law 49 would stop using the Privy Council and set up their own final courts of appeal’.287 With this type of comment, the establishment and scope of the Caribbean Court of Justice has much to commend it. Quot homines, tot sententiae when discussions surrounding the removal of the Privy Council as the court of last resort arise; the question of whether to remove and, if so, when the last rites should be performed over that institution is clearly not a matter which is easily settled within the Commonwealth Caribbean. Caribbean Court of Justice As stated previously, the emergence and continued growth of CARICOM, and the attendant free movement of labour issues occasioned by the operations of the Revised Treaty of Chaguramas, demand the existence of an authoritative adjudicatory body to hear and determine disputes that will inevitably arise in its interpretation. The Caribbean Court of Justice was created to undertake this unique and exclusive role, in addition to providing an alternative to the Privy Council. Therefore, it exercises dual functions,288 operating as an international court in its original jurisdiction and as a court of last resort for CARICOM member states in its appellate jurisdiction. Established by the Agreement Establishing the Caribbean Court of Justice in 2001, which came into force in 2003 and was formally inaugurated in 2005, the CCJ declares its mission as encompassing: In its original jurisdiction it ensures uniform interpretation and application of the Revised Treaty of Chaguaramas, thereby underpinning and advancing the CARICOM Single Market and Economy. As the final court of appeal for member states of the Caribbean Community it fosters the development of an indigenous Caribbean jurisprudence.289 The seat of the Court is located in Port of Spain, Trinidad and Tobago, but it may sit as an itinerant court290 in any member state, and indeed has already utilised technology to do so virtually through teleconferencing as well as held sittings in Barbados and Jamaica. It is staffed by a President and not fewer than five but not more than nine other judges in any one hearing, of whom at least three shall possess expertise in international law including international trade law.291 The judges are appointed by a Regional Judicial and Legal Services Commission,292 while the President is also nominated by that body but must receive the approval of 75 per cent of CARICOM Heads of Government to be appointed.293 The Agreement also stipulates that judges should possess ‘high moral character, intellectual and analytical ability, sound judgment, integrity, and understanding of people and society’.294 The President is vested with a nonrenewable tenure of seven years in office or may continue until he or she attain the age of 72 years of age, whichever is earlier.295 The remaining judges may hold office until a similar age296 and all judges may only be removed from office for inability to perform the functions of his office, 287 Interview from the Financial Times, 20 September 2009. Available online at www.ft.com/intl/ cms/s/0/3c5b14a6-a61d-11de-8c92-00144feabdc0.html#axzz2HAOT1Jid (last accessed 5 January 2013). 288 Agreement Establishing the Caribbean Court of Justice Article 111(1). 289 Caribbean Court of Justice Mission Statement. 290 Agreement Establishing the Caribbean Court of Justice Article 111(3). 291 Agreement Establishing the Caribbean Court of Justice Article IV (1). 292 Agreement Establishing the Caribbean Court of Justice Article IV (7); this body is specially established to ensure transparency in the appointment of the judiciary. 293 Agreement Establishing the Caribbean Court of Justice Article IV (6). 294 Agreement Establishing the Caribbean Court of Justice Article IV (11). 295 Agreement Establishing the Caribbean Court of Justice Article IX (2). 296 Agreement Establishing the Caribbean Court of Justice Article IX (3). 50 Commonwealth Caribbean Employment and Labour Law whether arising from illness or any other cause, or for misbehaviour297 through a specified tribunal procedure,298 or by their own resignation.299 It should also be noted that the post of judge may not be abolished while there is a substantive holder in office.300 In its appellate jurisdiction the CCJ is a superior court of record, having jurisdiction and powers conferred on it by the Agreement, which established it, as well as the Constitution or any other law of a participating member state.301 In this forum the Court’s rules, procedure and appeals operate in pari materia to the Privy Council, thus appeals may be sought as of right302 or by leave of the Court of Appeal of a member State.303 In the employment and labour law realm, appeals usually concern civil matters exceeding a stipulated monetary value, the interpretation of constitutional rights and the determination of questions having great or general import.304 Applicants may also seek special leave of the CCJ itself from any decision of a member State’s Court of Appeal in criminal or civil matters.305 The approval of such applications is discretionary and therefore subject to the judges’ decision of whether the case merits the granting of leave, it being ‘purely a matter of grace’.306 However, the utilisation of the CCJ’s appellate function is a matter for the determination of each member State307 and is also subject to their constitutional provisions, which provide citizens with the right to appeal decisions of local courts to the Privy Council.308 These provisions are usually very entrenched to protect the right offered and must adhere to stringent procedures to facilitate amendment, failing which the changes are ineffective. Jamaica attempted to accede to the CCJ’s appellant jurisdiction309 without following these guidelines and the legislation was struck down by the Privy Council310 as being unconstitutional. There have been diverse arguments in favour of or against the utilisation of the CCJ’s appellate jurisdiction in each country. Those in favour of the former position suggest that the Law Lords of the Privy Council possess superior objectivity since they are far removed from the issues underlying cases brought before them and can therefore be more dispassionate in rendering their conclusions.311 It has also been mooted that there is a real possibility of political interference in the operations of the court since it is located within the Caribbean’s sphere of influence, and that Caribbean jurisprudence and jurists are of mediocre quality.312 Others express the view that it would be a ‘hanging court’313 with a covert mandate of reversing landmark Privy Council decisions like Pratt and Another v the AG for Jamaica and Another314 and seeking to actively advance the continued implementation of capital punishment within the region. 297 Agreement Establishing the Caribbean Court of Justice Article IX (4). 298 Agreement Establishing the Caribbean Court of Justice Article IX (5). 299 Agreement Establishing the Caribbean Court of Justice Article IX (9). 300 Agreement Establishing the Caribbean Court of Justice Article IX (1). 301 Agreement Establishing the Caribbean Court of Justice Article XXV (1). 302 Agreement Establishing the Caribbean Court of Justice Article XXV (2). 303 Agreement Establishing the Caribbean Court of Justice Article XXV (3). 304 Agreement Establishing the Caribbean Court of Justice Article XXV (2) & (3). 305 Agreement Establishing the Caribbean Court of Justice Article XXV (4). 306 See Griffith v Guyana Revenue Authority (2006) 69 WIR 320; see also Antoine, R.-M. B. (2009) Commonwealth Caribbean Law and Legal Systems (2nd Ed.), Abingdon, Oxon: Routledge Cavendish, p. 335. 307 Except for Barbados, Guyana and Belize that already subscribe to the appellate jurisdiction. 308 For example, the Jamaican Constitution s 110. 309 The Caribbean Court of Justice (Constitutional Amendment) Act 2004, Act 20. 310 Independent Jamaica Council for Human Rights (1998) Ltd and Others v Marshall-Burnett and Another (2005) 65 WIR 268. 311 See Antoine, R.-M. B. (2009) Commonwealth Caribbean Law and Legal Systems (2nd Ed.), Abingdon, Oxon: Routledge Cavendish, p. 324. 312 Simmons, D. (2005) ‘The Caribbean Court of Justice: a unique institution of Caribbean creativity’, 31 Commonwealth Law Bulletin 71, at p. 79. 313 See Anthony, K. D. (Dr The Honourable - Prime Minister of St. Lucia) (2003) The Caribbean Court Of Justice: Will It Be A Hanging Court? Address given at The Norman Manley Law School, 28 June 2003. 314 [1994] 2 AC 1, where the Privy Council held that the execution of two convicted prisoners more than five years after the sentence of death was pronounced constituted cruel and inhumane punishment. Chapter 2: Sources and Institutions of Employment and Labour Law 51 However, the Court itself has already debunked such a notion with its decision in Attorney General of Barbados v Joseph and Boyce,315 which in principle confirmed the sustainability of the Privy Council’s decision in Pratt and Morgan that the execution of a convicted person after five years constituted cruel and inhumane treatment. The preponderant view (at least from an academic standpoint) appears to be in favour of States subscribing to the appellate jurisdiction for the converse reasons.316 It is thought that the CCJ would be more accessible to appellants since it would be less costly both in travel and legal costs. Indeed the court possesses itinerant jurisdiction and may sit in any country from which a case originates. Another powerful argument supporting the acceptance of the court is the fact that, since it is based in the Caribbean, it would be more likely to be appreciative of the unique social, economic and political issues that confront the region. By extension, therefore, it is better able to make decisions aligned with the cultural experiences of the people and institutions for whom it adjudicates. As stated quite aptly by De La Bastide, who later became the court’s first president, ‘it is very important that the judges who make decisions which create our jurisprudence have a close and very intimate connection with our societies’.317 This thesis is all the more important for matters relating to labour and employment law, which is heavily reliant on customs and practices that are not only unique to the region but also may vary considerably within industries and types of enterprise. Yet another contention is that the utilisation of the CCJ in its appellate jurisdiction will serve to further develop and strengthen the Commonwealth Caribbean’s indigenous jurisprudence, to say nothing of the symbolic significance of breaking the yoke of the colonial linkage in the legal field.318 Notwithstanding the strong arguments made by academics and other stakeholders, only three states have so far acceded to the court’s appellate jurisdiction. It is noteworthy that since the revised Treaty is rooted in international law, the Court, of necessity, must utilise international legal principles319 when deciding matters pursuant to its original jurisdiction. It has also exercised exclusive jurisdiction320 in relation to interpretation and application of the Treaty and if such matters arise in the domestic sphere they must be referred to the CCJ for resolution.321 The acceptance of this sphere of the Court’s operation is therefore obligatory for all CARICOM member states that are signatory to the revised Treaty.322 The matters that may be heard by the court in this regard include disputes between member states, between the Community and member states, as well as referrals made to it by national courts or tribunals by virtue of its exclusive jurisdiction.323 It may also adjudicate in cases brought by nationals who are afforded locus standi if special leave is granted by the Court.324 Such nationals may approach the court if the following criteria are met: the Court determines 315 (2006) 69 WIR 104. 316 Bryan, R. (1997-1998) ‘Toward the development of a Caribbean Jurisprudence: the case for establishing a Caribbean Court of Appeal’, 7 Journal of Transnational Labour and Policy, p. 181; Pollard, D. (2004) The Caribbean Court of Justice: Closing the Circle of Independence, Kingston, Jamaica: Caribbean Law Publishing; Simmons, D. (2005) ‘The Caribbean Court of Justice: a unique institution of Caribbean creativity’, 31 Commonwealth Law Bulletin 71; Salmon, H. (2000) ‘The Caribbean Court of Justice: a march with destiny’ 2 Fl. Coastal Law Journal 231; Alexis, F. (1975) ‘The case against WI Appeals to the UK Privy Council’, Bulletin of Eastern Caribbean Affairs, June, Vo1, 1, No. 4. 317 De La Bastide, M. (2002) Replacing the Privy Council with a Regional Court, keynote address given at the Convocation on the Caribbean Court of Justice, Kingston, Jamaica, 9 April. 318 This theme was passionately argued by Pollard, D. (2004) in The Caribbean Court of Justice; Closing the Circle of Independence, Kingston, Jamaica: Caribbean Law Publishing. 319 Agreement Establishing the Caribbean Court of Justice Article XVII (1). 320 See Carnegie A.R. (2009) How Exclusive is ‘Exclusive’ in Relation to the Original Jurisdiction of the Caribbean Court of Justice? A Consideration of Recent Developments, University of the West Indies, Faculty Workshop Series, Faculty of Law, Cave Hill, Barbados, 25 November. 321 Agreement Establishing the Caribbean Court of Justice Article XIV (2). 322 Agreement Establishing the Caribbean Court of Justice Articles XII & XIV (1). 323 Agreement Establishing the Caribbean Court of Justice Article XII. 324 Agreement Establishing the Caribbean Court of Justice Article XXIV. 52 Commonwealth Caribbean Employment and Labour Law that the Treaty intended that rights conferred by or under the Treaty on a contracting party (member State) should enure to the benefit of such persons directly and the persons concerned have established that they have been prejudiced in the enjoyment of such benefits. The national should also show that the contracting party that is entitled to espouse the claim in proceedings before the Court has omitted or declined to do so, or has expressly agreed that the national may adopt the claim instead, and that the Court has decided that in the interest of justice the persons should be allowed to do so.325 ‘National’ in this regard encompasses not only natural but also juridical persons.326 Therefore, in appropriate cases, individuals and companies may approach the court for redress. This will no doubt impact such entities in a meaningful way by providing tangible access to the Court’s machinery to resolve disputes that will inevitably arise in an environment where regional integration, trade and free movement is being actively encouraged. Two very important principles of law also guide the procedures of the CCJ in its original jurisdiction. Firstly, the concept of non liquet327 applies, and therefore the Court is directed to determine matters brought before it and cannot decline jurisdiction on the basis that the law is obscure or is silent on an issue. The rationale behind this mandate is the supporting of judicial activism, within reason, thereby promoting clarity in the application of the Treaty’s provisions. Although Simmons avers that the utilisation of the principle ‘is justified on the grounds of certainty and predictability’ 328 it has been criticised by other commentators329 as being capable of creating a risk of bias, since much depends on the scope and appropriateness of judicial law making. Such a concern could have great implications for labour and employment law, especially in a context where there may be gaps in the legislative and common law framework and reliance is thus placed on the Court to determine the most appropriate recourse in particular cases. The second rule is that of the use of stare decisis330 where the Court is enjoined to be bound by its previous decisions, except where they are amended by virtue of an application made in light of new facts that were not available at the time the judgement was given.331 Again the reason for this approach is said to be the promotion of certainty, consistency and logic making decisions. On the converse, it is argued that slavish adherence to the doctrine of binding precedence stifles the exercise of flexibility by the judiciary which could, in some instances, lead to injustices being perpetrated upon aggrieved persons. Here it should be noted that in international law there is no general acceptance of this principle and thus it appears strange that this route has been chosen by the framers of the CCJ, since in its original jurisdiction it is an international court. Nevertheless, these two distinct features of the Court’s operation, though arguably having the potential to affect labour and employment law issues, may not be as intrusive as they appear considering that the likelihood of matters occurring in the original jurisdiction is slim, as will be further discussed below. Since its inauguration the CCJ has adjudicated twelve (12) cases that stand on an employment and labour law base in its appellate jurisdiction. All but three of the cases originate from Guyana and all those cases were related to dismissals in the field of public service employment.332 In the majority of the cases appealed special leave was refused, contingent on the fact that no 325 Ibid. 326 See Revised Treaty of Chaguaramas, Article 32 Paragraph 5(a) and Part 1.2 Original Jurisdiction Rules (2006). 327 Agreement Establishing the Caribbean Court of Justice Article XVII (2). 328 Simmons, D. (2005) ‘The Caribbean Court of Justice: a unique institution of Caribbean creativity’, 31 Commonwealth Law Bulletin 71 at p. 83. 329 Lim A Po, H.R. (2003) ‘Bridging the Divide’: The interface between the Civil System and the Common Law system, with specific reference to the role of the Caribbean Court of Justice, address given at the Symposium on the Caribbean Court of Justice, Paramaribo, held on 31 October. 330 Agreement Establishing the Caribbean Court of Justice Article XXII (2). 331 Agreement Establishing the Caribbean Court of Justice Article XX. 332 Information sourced from www.caribbeancourtofjustice.org. Chapter 2: Sources and Institutions of Employment and Labour Law 53 special circumstances existed to justify it where there was inordinate delay on the part of the applicants.333 Only in three cases were the appellants successful in their appeals334 with one being a consent order.335 The CCJ’s first ever case adjudicated came from Guyana and was primarily a civil issue addressing the alleged wrongful termination of a public servant. In Griffith v Guyana Revenue Authority and Another,336 the Court decided that the applicant could not surmount the obstacle of filing his appeal out of time without good reason and, furthermore, the case had little likelihood of success337 and it therefore dismissed the application for leave. The judges opined as it related to leave to appeal: … the grant of special leave is always a matter of discretion and never a matter of right. Thus it is a condition precedent of the exercise of that discretion in favor of the applicant that he or she should have an arguable case. Accordingly where it is clear that the appeal as presented is wholly devoid of merit and is bound to fail special leave will not be granted. The respondents have contended that the instant application should be dismissed on that ground.338 The Court decided the case mainly on a procedural point but, in the process, gave indispensable guidance on the question of legal costs and the circumstances under which a request by the applicant to be treated as in forma pauperis could be successfully countenanced. In the other Guyanese cases,339 where similar arguments were canvassed, the applications for leave proved unsuccessful because of failure to meet the Court’s procedural requirements and, in any event, the fact that the cases lacked substantive merit. However, in the case of Campbell v The Attorney General,340 although the appeal was dismissed, the arguments surrounded the averred capability of the government to abolish a post within the public service were viewed in light of the aggrieved public servant’s right to be compensated in accordance with the provisions of relevant pensions’ legislation rather than in damages, as would normally be the case in private law cases.341 The Barbadian case of Sandy Lane Hotel Co. Limited v Brigitte Laurayne342 provided the first matter where the Court was required to squarely address private employment law issues in the appellate jurisdiction. Here Justices had to consider under what circumstances the claim of wrongful dismissal in the form of constructive dismissal could be sustained. Ms Laurayne’s contention was that critical areas of her job functions were being removed from her direct control even though she was still to have overall responsibility as the Director of Leisure and Spa at the employer’s hotel. When she expressed unhappiness at this change, and was offered an alternate position, she refused it on the basis that it was subordinate to her current post, eventually absenting herself from duty and ultimately claiming wrongful/constructive dismissal. At the magistrate’s court Ms Laurayne’s case was dismissed but was upheld on appeal as the Court of Appeal was of the view that ‘the removal of her responsibilities for the spa meant that she was constructively dismissed’ since she would have in actuality been demoted and lost some 333 See Griffith v Guyana Revenue Authority and Another (2006) 69 WIR 320; Hendy v Commissioner of Police and Another (2007) 72 WIR 251. 334 Mayan King v Reyes and Others (2012) 80 WIR 175; Sandy Lane Hotel Co. Limited v Brigitte Laurayne [2013] CCJ 1. 335 Somrah v Attorney General of Guyana [2009] CCJ 5, under the court’s power to do so, Agreement Article XVI. 336 (2006) 69 WIR 320. 337 This could have been evidenced ‘by showing either that he held public office during his service with the Revenue Authority or that he had an existing right to property in the form of superannuation benefits or that he had a constitutional right to natural justice in respect of the termination of his employment with the Revenue Authority’, para 56. 338 Ibid. para 27. 339 Nauth v The Attorney General of Guyana and others [2007] CCJ 4 (AJ); Hendy v Commissioner of Police (2008) 72 WIR 251; Emptage v The Attorney General of Guyana [2008] CCJ 2 (AJ); Yasseen v The Attorney General of Guyana (2008) 72 WIR 317; Gibson v The Attorney General of Guyana (2008) 73 WIR 265. 340 (2009) 76 WIR 63. 341 See also Edwards v Attorney General of Guyana [2008] CCJ 10 (AJ). 342 (2013) 81 WIR 75. 54 Commonwealth Caribbean Employment and Labour Law ‘prestige and status’. However, the CCJ, having examined all the attendant facts, overruled the Appeal Court and concluded that there was no ‘substantial removal of part of her job … so as to strike at the root of the contract and enable her to consider herself as constructively dismissed’. Indeed it went further to say that there was no breach of contract at all as ‘flexibility in job function provided the employee has the appropriate skill sets is an implied term of employment of a senior employee’.343 This decision arguably indicates the direction the courts may take in such future matters; it is a holistic and common sense approach having regard to the salient facts of the case and the surrounding circumstances in a context of legal principles. This bodes well for the continuing development of the labour and employment law jurisprudence in the Commonwealth Caribbean. The Court’s propensity to be influenced by international law instruments was displayed in the Mayan King344case. Here the Court examined the provisions of the Belizean Trade Union and Employers Organisations (Registration, Recognition and Status) Act and its effect on workers’ rights to seek union representation. The Court acknowledged the underlying basis for the Act as compliance with ILO Treaty obligations,345 which concurred with Belizean constitutional rights to freedom of association. But the judges went a step further to recognise the fact that the Act ‘has a major impact on work and living conditions as well as on the development and progress of the economic and social systems … promotes better job security and a more stable industrial, social and economic environment’.346 In so doing it made reference to the ILO’s Director General’s report347 and embraced the role of international organisations’ best practices that inure to the benefit of workers. This judgement confirms Bernaz’s thesis that since the CCJ is strictly speaking a ‘double court’, where international and domestic legal features operate side by side and the same judges settle international and domestic disputes, then ‘the same judges are likely to be influenced by both orders and in particular more likely to use international law in their [appellate] rulings’.348 The CCJ has so far only tackled one employment law-related case in its original jurisdiction. In Doreen Johnson v CARICAD349 the applicant was a Barbadian national previously employed by CARICAD, an institution of CARICOM, whose mandate was to assist member States in improving their administrative capacity. Her position was made redundant after 17 years of employment and she thereafter claimed breach of contract, wrongful dismissal and violation of the Barbadian labour laws. She also alleged discrimination on the grounds of nationality since Barbadians were not eligible for pension benefits. In its judgment the Court provided exemplary guidance on the pivotal issues of whether individuals had locus standi to approach the Court under the Revised Treaty of Chaguaramas and, if so, which CARICOM functionaries could be sued. The decision defined the extent of the Court’s jurisdiction by establishing that suits may not be brought against Community institutions such as CARICAD, while commensurately acknowledging that legal action could however be brought against the CARICOM itself. The rationale for this stance was the fact that CARICOM possessed full juridical personality and, by extension, so too did Community Organs and Bodies, which were integral parts of the Community. However, CARICAD was merely an organisation having ‘some connection with the Community … and their acts and omissions were not necessarily attributable to the 343 Quoted with approval from MacKinnon v Acadia University (2009) 76 CCEL 3d 273. 344 (2012) 80 WIR 175. 345 Convention 87 and 98. 346 Paragraph 4. 347 Ibid. 348 Bernaz, N. (2008) ‘The Caribbean Court of Justice: one court with two jurisdictions – a unique judicial institution?’, unpublished paper delivered at International Law Colloquium, University of Georgia School of Law, 15 February, p. 9. 349 (2009) 74 WIR 57. Chapter 2: Sources and Institutions of Employment and Labour Law 55 Community’.350 As such, only CARICOM, and its Organs and Bodies as defined by the Treaty, could rightly be subject to legal challenges since they have the power to bind the Community by their actions. Member States as employers could also conceivably be a proper party to such actions since they endowed with legal personality and acceded to the provisions of the Treaty.351 The case also determined the types of matters that were actionable in the Court’s original jurisdiction. Berry opined that the ‘… court drew a bright line between the types of disputes which could be resolved in the original jurisdiction and which could not’352 and further opined that ‘since the original jurisdiction involves the interpretation of the Revised Treaty only a dispute regarding a breach of the Treaty would have been justiciable’.353 Therefore complaints of wrongful dismissal, breach of contract and breach of the Constitution and labour laws of Barbados, were not justiciable in the CCJ’s original jurisdiction. The Court also indicated that perhaps the only claim possibly sustainable was that of discrimination on the basis of nationality, which would have been contrary to Article 7 of the Revised Treaty. It appears therefore that there is limited scope for the adjudication of employment and labour law matters in the Court’s original jurisdiction, being restricted to persons who are directly employed by CARICOM, its organs and bodies or State Parties in areas which must have a nexus with the provisions of the terms of the Revised Treaty, to have more than a passing hope of gaining redress through this forum. As can be seen from the cases that have been decided so far in the CCJ it is more likely that employment and labour law cases will be adjudicated in the appellate jurisdiction than in its original forum. With this in mind the Court’s impact may not be extensive except in countries that have acceded to that jurisdiction. The CCJ’s decisions will be only persuasive precedent in the other Caribbean countries. Even so it is clear that the Court in its nascent stage, while seeking to fully devise its scope and function, has concentrated its efforts on procedural issues and therefore the substantive merits of employment law cases have not yet been fully examined. In the Mayan King354 case it have even appeared to be conservative in its stance regarding compensation for aggrieved persons in employment law disputes. While agreeing that the employer acted in bad faith by dismissing the workers, they nevertheless further reduced the amount of compensation by half of the already discounted figure awarded by the Belizean Court of Appeal. This could be considered regrettable in light of the obvious wrongs meted out to the workers and their families and the passage of time to the case’s resolution made the sum’s value derisory. Whether the Court’s vision statement of providing the Caribbean community with an ‘accessible, fair, efficient, innovative and impartial justice system built on a jurisprudence reflective of our history, values and traditions’ will ring true in the employment and labour law arena is yet to be determined. However, this truism must also be viewed in light of the fact that the Court is still under a decade old and the number of cases adjudicated has been low. It is still building its jurisprudential prowess and should be allowed more time to come of age. Industrial courts and tribunals The establishment of specialised courts and tribunals possessing jurisdiction to address conflicts arising within the employment and labour law arena is considered by some academics as a 350 Ibid. para 14, p. 62. 351 See De la Bastide, M. (2010) Five years of CCJ’s contribution to Caribbean jurisprudence, keynote address given at the Hyatt Regency, Port-of-Spain, Trinidad and Tobago, 30 April, pp. 3-4. 352 Berry, D. (2009) Building a Legal Framework for the CSME: The Caribbean Court of Justice’s First Original Jurisdiction Decisions, Faculty of Law Workshop Series, UWI, Cave Hill, Barbados, 30 September. 353 Ibid. 354 (2012) 80 WIR 175. 56 Commonwealth Caribbean Employment and Labour Law necessity to ensure that ‘labour law escapes the clutches of common law thinking and procedures’.355 This view evolved from the obviously stringent approach taken by the conventional courts when examining employment contracts, in addition to the sometimes blatant disregard of customs and practices that formed the bedrock of industrial relations in many jurisdictions. The common law courts have in great degree remained somewhat hostile to the actions of collective groupings and their membership.356 This is well illustrated by the court’s intervention extending tortious liability against unions, notwithstanding the interposition of parliament by providing immunities. It must be remembered that the ordinary courts are staffed by judges who, for the most part, are unfamiliar with the machinations of the labour and employment systems and are more inclined to focus their deliberations in accordance with the letter and not the spirit of statutes being considered.357 It was therefore believed that a specific forum, manned by personnel conversant with the peculiarities of this unique area of law and operated in line with its tenets, would mitigate ‘political and ideological biases and anti-labour judicial attitudes’.358 Thus for the most part industrial courts and tribunals usually function with a tripartite constitution having members representing workers’ and employers’ interests, working alongside government-appointed representatives sometimes possessing legal qualifications. There is no doubt that, apart from the perceived need for a specialised adjudicatory setting, one of the principal motives for setting up special courts and tribunals to address employment and labour matters has been the belief that they will be more accessible, informal, cheap and expeditious than ordinary courts.359 The espoused view was these ‘industrial juries’360 would be ideal for the settlement of disputes, as opposed to an adversarial court, since the parties, especially in collective labour disputes, do not intend to sever their employment relationship but rather are resorting to external assistance to find a solution to their concerns. As such it is in the best interest of all concerned that disputes are resolved in the least contentious atmosphere thus making it conducive for a continuing amicable working relationship. In the employment law sphere, the measured and relatively informal procedures applicable in these courts and tribunals would, at least in theory, allow employees regardless of their capacity to afford legal representation and the ability to seek redress, although in reality the industrial courts have become increasingly legalistic361 in their approach to settling disputes. This could be due to the fact that the courts have progressively been asked to interpret legal rights provided by statutes versus rights negotiated by collective agreements and other customary practices, which do not themselves connote prescriptive requirements. Another powerful argument in this regard is the right of appeal on points of law and the incursion of the legal profession in arguing of cases that insidiously advocates adherence to strict legal principles. Nevertheless the desire for a separate and independent jurisdiction to interpret and enforce aspects of the labour law continues to have many proponents362 and has spawned the creation of ‘industrial or labour courts’. This term is, however, extremely wide and has the 355 Wedderburn, Lord (1987) ‘Labour law from here to autonomy’, 16 ILJ 1 at p. 26; see also Hepple, B. A. (1988) ‘Labour courts: some comparative perspectives’, 41 Current Legal Problems, p. 169; Ewing, K.D. (1988) ‘Rights and immunities in British labour law’, Comp Lab LJ, p. 35. 356 See Kahn-Freund, O. (1997) Labour and the Law (6th Ed.), London: Stevens and Sons. 357 Cowell, N. (1992) Judicial Intervention and the Changing Balance of Power in Jamaican Labour Relations, paper presented at the Symposium in Honour of Carl Stone, UWI, Mona, Jamaica, 16-17 November. 358 Antoine, R.-M. B. (2009) Commonwealth Caribbean Law and Legal Systems (2nd Ed.), Abingdon, Oxon: Routledge Cavendish, p. 347. 359 Wedderburn, Lord (1991) ‘The Social Charter in Britain: Labour Law and Labour Courts?’ 54 MLR 1, p. 27; this echoed the original proponent of industrial tribunals in the UK, Lord Donovan, in the Royal Commission on Trade Unions and Employers Association (1968) Cmnd. 3623. 360 See designation by Lord Donaldson in Sheridan v British Telecommunications [1990] IRLR 27, 30. 361 Munday, R. (1981) ‘Tribunal lore: legalism and the industrial tribunals’, 10 ILJ 146. 362 McCarthy, W.E.J. (1990) ‘The case for labour courts’, Vol. 21, Industrial Relations Journal, p. 98. Chapter 2: Sources and Institutions of Employment and Labour Law 57 capability of being misinterpreted since it may be used to describe a number of heterogeneous institutions. It encompasses: … legally established Superior Courts of Record either as specialised labour courts which are fully integrated into the system of courts … or specialised adjuncts to the civil courts … at one end of the scale as well as tribunals and similar bodies dealing with certain aspects of legal rights in employment at the other … and even covers those quasi-judicial and administrative bodies which deal with limited aspects of labour relations.363 This disaggregation of bodies falling into these categories is representative of various employment and labour dispute resolution entities that exist in the Commonwealth Caribbean. In this regard it should be noted that specialised ‘industrial courts’, in the stricto senso legal disambiguation, operate only in Antigua and Barbuda and Trinidad and Tobago,364 while Guyana utilises its ordinary High Court365 to hear and determine claims for unfair dismissal and disciplinary actions. Permanent quasi-judicial tribunals have been established in The Bahamas,366 Belize,367 Bermuda,368 Dominica,369 Jamaica,370 St. Lucia371 and, at the time of writing, a tribunal is being created in Barbados.372 Antigua and Barbuda holds the distinction of having a panel of Arbitrators or a single Code Arbitrator373 that may be appointed to address any major trade dispute that has led or may lead to industrial action. Other ad hoc tribunals have been established in Barbados,374 Grenada,375 Guyana,376 St. Vincent and the Grenadines,377 and St. Kitts and Nevis378 to address disputes within the essential services and other stipulated industries as the circumstances warrant. It should also be noted that parties may also opt to utilise private arbitration mechanisms379 to reconcile their differences, especially in cases where collective agreements make such provisions. This modality is regularly employed in the hotel industry in the Bahamas.380 Interestingly the Moyne Commission Report381 made a proposal for the establishment of a regional industrial court but this was never implemented and, though another attempt was made to do so through the Senate of the now defunct West Indies Federation, this too never came to fruition.382 In light of the current march towards the full implementation of the CSME, 363 Ramchand, L. (1994) ‘The Jurisdiction of Labour courts with particular reference to the Labour Court of Trinidad and Tobago’, Proceedings of the Caribbean Conference on Industrial Courts ILO and Employer Consultative Association of Trinidad Publication Port of Spain Trinidad and Tobago 28-30 November 1994, p. 27. 364 See generally Antoine R.-M. B. (2009) Commonwealth Caribbean Law and Legal Systems (2nd Ed.), Abingdon, Oxon: Routledge Cavendish, Ch. 18, pp. 345-351. 365 Section 19 Termination of Employment and Severance Pay Act 1997. 366 Industrial Relations Act s 54 establishes the Industrial Tribunal; indications are that the Bahamas is currently considering legislation to convert their Industrial Tribunal into a superior court of record. 367 Part XX Labour Act as amended (2011) s 200 establishes the Labour Complaints Tribunal to hear and determine complaints of unfair and wrongful dismissals. 368 Employment Act (2000) s 35 establishes the Employment Tribunal. 369 Industrial Relations Act Cap 89:01 (1986) s 6(5) provides for the selection of members to constitute the Industrial Relations Tribunal. 370 Labour Relations and Industrial Disputes Act (1975) s 8 establishes the Industrial Disputes Tribunal. 371 Labour Code (2006) Division 4 s 424 establishes the Labour Tribunal. 372 Employment Rights Act (2012) s 6 establishes the Employment Rights Tribunal. 373 Labour Code (1975) s B8. 374 Severance Payments Act Cap 355A (1973) s 38 (5) establishes a tribunal to hear and determine issues arising under that Act; Trade Disputes (Arbitration and Inquiry) Act s 4 deals with trade disputes. 375 Labour Relations Act 1999 as amended s 46 establishes the Arbitration Tribunal to determine trade disputes. 376 Public Utility Undertakings and Public Health Services Arbitration Act (1956) s 4 creates the Public Utility Undertakings and Public Health Services Tribunal to address essential service disputes. 377 Trade Disputes (Arbitration and Inquiry) Act s 4. 378 Trade Disputes (Arbitration and Inquiry) Act s 4. 379 Guided by the provisions of the various Arbitrations Acts of each country. 380 Goolsaran S. (2005) Caribbean Labour Relations Systems: An Overview (2nd Ed.), ILO Publication, Port of Spain, Trinidad and Tobago, p. 11. 381 Ch. 10, para 55, p. 209. 382 See Putman, F. (1991) Statutory Arbitration Systems in the Caribbean Region, ILO Publication. 58 Commonwealth Caribbean Employment and Labour Law however slow, and its implications for labour and employment, the time may again be ripe for the consideration of a regional industrial court,383 perhaps under the auspices of the CCJ. However, this would require a full discussion of the various issues by the CARICOM member States and a purposive examination of the proposals to harmonise the employment and labour legislation across the Caribbean, thus preparing the way for the effective operation of such a body. Notably many quasi-judicial tribunals possess the power of compulsory arbitration over industrial or trade disputes, as defined by the various statutes that institute them. As such they only have a specific jurisdiction to hear and determine these particular disputes, otherwise they would be acting ultra vires and their action subject to judicial review. In the following paragraphs we explain the structure and procedure of the two industrial courts within the Commonwealth Caribbean and also examine the workings of industrial tribunals in Jamaica, Bahamas and Dominica. Trinidad and Tobago Industrial Court The idea of establishing an industrial court in Trinidad and Tobago was not novel as, in 1920, the Industrial Court Ordinance was enacted to provide for compulsory arbitration of trade disputes.384 However, it was never implemented. The modern Industrial Court began its life under the now repealed Industrial Stabilisation Act (ISA).385 It is a superior court of record,386 equivalent to the High Court jurisdiction, and possesses all the powers inherent in such a court concurrent with the jurisdiction endowed by the Industrial Relations Act (IRA)387 which replaced the ISA.388 The court consists of two Divisions (General Services and Essential Services389) each headed by a Chairman and at least two other members appointed to that specific Division.390 There is also a Special Tribunal,391 which is established by the Civil Service Act and staffed by the Chairman of the Essential Services Division and two other members of that Division, which sits as required.392 This unique entity is charged with the responsibility of addressing disputes in specific areas of the public service as though they were an essential service.393 Membership of the court The court boasts a President who must be either a Judge of the Supreme Court so designated after consultation with the Chief Justice or a person who is qualified for such appointment.394 383 See discussion on the need for a regional court in Antoine, R.-M. B. (1992) The CARICOM Labour Law Harmonisation Report, Faculty of Law, University of the West Indies, p. 512. 384 See generally Khan, A. (2006) The Law of Labour and Employment Disputes in Trinidad and Tobago, Derwent Press, Chs 1 and 2; ‘The Industrial Court of Trinidad and Tobago’ pp. 92-101 in Okpaluba, C. (1975) Essays on Law and Trade Unionism in the Caribbean, Key Caribbean Publications. See also Thomas, R. D. (1989) The Development of Labour Law in Trinidad and Tobago, Wellesley, MA: Calaloux Publications, p. 19. 385 Act 8 of 1965. 386 Public Services Association v Water And Sewerage Authority ESD IRO No. 2 of 1993 (Industrial Court) unreported, delivered June 24, [1994 TT1994 IC 41] where the court traced the history of superior courts and found that, once designated by the enabling statute, they possessed inherent jurisdiction inuring to them (pp. 15-23). 387 Act 23 of 1972. 388 Section 4(1). 389 As defined in the First and Second Schedules. 390 Section 4 (2A). 391 See Civil Appeal No. 7 of 1981 Trinidad and Tobago Police Service v Chief Personnel Officer (unreported) delivered December 12, 1993. The Court of Appeal advised that the Special Tribunal is not a part of the Industrial Court. 392 Section 4 (2C). 393 These are The Civil Service, The Teaching Service, The Fire Service, The Prison Service, The Supplemental Police and the Central Bank. 394 Section 4 (3). Chapter 2: Sources and Institutions of Employment and Labour Law 59 It also has a Vice-President who must be an Attorney-at-Law of not less than 10 years’ standing. The remaining members of the court are appointed independently from among persons experienced in industrial relations or qualified as economists, accountants or are attorneys of not less than five years’ standing.395 The emphasis on incorporating non-judicial members in the court’s quorum is a significant feature. This composition is arguably vital to its effectual operation bearing in mind the rationale for its establishment. The Court of Appeal in Caribbean Printers Ltd. v Union of Commercial Industrial Workers396 aptly enunciated the point through Rees JA: It is such persons who conceived these practices and principles for their own use and consequently they ought to know exactly what those principles and practices are. Perhaps it is for that reason more than any other that the composition of the Industrial Court is as it is … such a court is far better equipped than this court, comprised as it is solely of lawyers, to determine in any given set of circumstances, whether the principles and practices of good industrial relations have been observed or not. All the appointments to the court (except its President) are made by the President of Trinidad and Tobago for a term of not less than three but not more than five years.397 It is important to note that the court may be properly constituted with one member398 and, where a matter is being ventilated by a panel comprising more than one member and a vacancy arises during the course of the hearing, the case may proceed and its decision shall not be invalidated by reason of a member’s absence.399 The court’s decisions are determined by a majority and should there be a deadlock the matter will commence de novo to the exclusion of the previous members.400 With regard to its convening, it may sit wherever the President considers it expedient to fulfil its obligations.401 The President of the Court is the de jure Chairman of the Division of which he is a member and the Vice President will be the Chairman of the other Division if he is a member. If the President and Vice President are members of the same Division, the Head of State must appoint a Chairman to lead the other Division.402 Acting appointments may be made where any member of the court is unable to carry out their functions and these appointees are vested with the same powers as the incumbent.403 A member of the court cannot be removed from office except for reasons of physical or mental incapacity or misbehaviour and this must be in accordance with Constitutional provisions.404 Jurisdiction and powers of the court In addition to its ingrained remit as a superior court it also has jurisdiction to hear and determine trade disputes, register collective agreements and adjudicate in matters relating to their registration, in addition to ordering workers, trade unions, employers and any other persons to desist from 395 Ibid. 396 TT 1972 CA No. 30 of 1972 (unreported) delivered February 27, 1975. 397 Section 5 (1) – each member is eligible for reappointment on the expiration of the term and may, with the permission of the President, remain in office beyond the expiration of his term to deliver judgments or maintain involvement in any matter previously commenced. 398 Section 7 (3), however, contempt matters must have at least two judges sitting. 399 Section 7 (5). 400 Section 7 (9). 401 Section 7 (4), currently the court has permanent accommodations in Port of Spain and San Fernando. It also sits occasionally in Tobago. 402 Section 4 (3A). 403 Section 4 (4) (5) (6) (7). 404 Section 4 (8). 60 Commonwealth Caribbean Employment and Labour Law taking or continuing industrial action.405 The court may also hear and determine proceedings for industrial relations offences under the IRA or any other matter brought before it, pursuant to the Act’s provisions.406 Section 10 (3) of the Act enunciates the essential overriding principle that guides the court in all these functions. In exercising its powers the court must make orders that are just and fair, having regard to not only the interest of the persons immediately concerned but also to the community as a whole. It must also act in accordance with equity, good conscience, the substantial merits of each case and hold true to the principles and practices of good industrial relations. This tenet has the effect of mandating the court to take a broad view of the facts before it while being guided by general legal principles. In the Civil Service Association of Trinidad and Tobago v The Marketing Board and The Attorney General on behalf of the People of Trinidad and Tobago407 the court’s first President stated: the court is not a court in the usual or ordinary sense [but] is clothed with a wide and flexible jurisdiction to do what is called justice between the parties to a dispute before it … In exercising this wide and flexible jurisdiction the court may not act arbitrarily or capriciously or spin a coin or consult an astrologer to determine what its order should be. It must keep steadily in view the object the Act was designed to achieve … and make such order as will settle the dispute in a manner that is fair, reasonable and just. In addition to the abovementioned matters the court has jurisdiction to determine claims under the Minimum Wages Act 2000,408 the Retrenchment and Severance Benefits Act 1985 (RSAB),409 the Maternity Protection Act 1998410 and the Occupational Safety and Health Act 2004 (OSHA).411 The court is also authorised to determine cases stated by the Registration, Recognition and Certification Board412 and hear applications for ex-parte injunctions instituted by the Minister.413 It is empowered to make interim and provisional orders414 or awards and impose fines, award compensation for breach of an order or award to a complainant other than damages.415 The court’s orders and awards are binding on all parties who are represented, whether they appeared or not, as well as successor employers.416 It may also make retroactive orders and awards,417 and enforcement of any order made by the court is recoverable as a civil debt in the High Court upon the filing of the Court’s Registrar Certificate.418 Another important power conferred upon the court is the binding interpretation of its orders and awards upon application by any party on the Minister.419 Additionally, in furtherance of its authority to register collective agreements, it is charged with interpreting the applicability of the provisions of any such instrument.420 This power has also been subject to much litigation 405 Section 7(1). 406 Ibid. 407 (1965-1975) 1 TTICR 9; 17 B. 408 Section 22 B. 409 Section 24. 410 Section 12. 411 Section 97 A. 412 See discussion below, pp. 83–86. 413 Section 65 (1). 414 Section 10 (1) (b). See IRO No. 9 of 2003 Trinidad Sugar and General Union v Caroni (1975) Limited (unreported) delivered March 28, 2003 interim order granted barring the execution of a voluntary separation exercise pending proceedings. 415 Section 10 (1) (c). 416 Section 19. 417 Section 15. See also TD 103 of 1972 Caribbean Salvage Limited v Transport and Industrial Workers’ Union (unreported) delivered January 31, 1974. 418 Section 14. 419 Section 16 (1). See TD 40 of 1983 Transport and Industrial Workers’ Union v Consolidated Appliances Limited (unreported) delivered November 19, 1990. 420 Section 16 (2). Chapter 2: Sources and Institutions of Employment and Labour Law 61 within the court with concrete principles being established on how this jurisdiction is to be exercised. Thus an expired agreement will not be examined421 and damages should not be ordered if an employee is deemed to have suffered detriment by the wrongful administration of a collective agreement.422 Initiation of proceedings It was previously believed that initiation of proceedings at the Industrial Court required the transmission of a certificate of unresolved dispute from the Ministry of Labour to the court, accompanied by an acknowledgement from the union or employer.423 However, in Steel Workers Union of Trinidad and Tobago v Ispat424 the court held that ‘there is nothing in the sections 59(1) and (2) of the Act to lead us to conclude that the certificate of the Minister is mandatory for the purpose of jurisdiction’. As such once the court is satisfied that the conditions precedent for the issuing of the certificate exist, it would not act ultra vires in proceeding to hear the matter in its absence. It should be noted that, originally, the scheme of the Act did not ordinarily permit individual workers to approach the court.425 This showed the manifest intention of the government of the day to favour collective representation above the individual’s right to pursue an otherwise clear breach of statute. However, the provisions of the Occupational Safety and Health Act (OSHA)426 now allows individuals to approach the court for relief, which conceivably evinces a slight shift away from the previously dominant requirement of membership or affiliation with a collective organisation to gain access to the court.427 This change, though interesting, is, in practical application, a mere blip on the radar since in all other cases a worker must move the Minister to action through a Recognised Majority Union or another collective body, which is a requirement under the IRA.428 Employers may also file claims in the court using the stipulated procedures429 and the Minister of Labour may also initiate some actions.430 However, it should be noted that the court is estopped from determining matters which are ‘otherwise determined or resolved’.431 Unfair dismissals and reinstatement A major plank of the Industrial Court’s jurisdiction is the adjudication of matters relating to workers’ dismissals.432 In doing so it must determine whether the worker was dismissed in circumstances that were ‘harsh and oppressive or not in accordance with the principles of good industrial relations practice’.433 There has been immense debate on what actions are ‘harsh 421 TD ICA 11 of 1986 Oilfields Workers’ Trade Union v Alstons Building Enterprises Limited (unreported) delivered November 26, 1987; Civil Appeal No. 9 of 1995 Bank Employee Union v Republic Bank Limited (unreported) delivered April 3, 1998. 422 Civil Appeal No. 202 of 2000 Hyrdo Agri Trinidad Limited v Oilfields Workers’ Trade Union (unreported) delivered February 8, 2002. 423 Section 59. 424 Civil Appeal No. 249 of 1998 (unreported) delivered April 30, 2001. 425 See Thompson Boddie, R. (1994) ‘Access to the Industrial Court of Trinidad and Tobago’ in Proceedings of the Caribbean Conference on Industrial Courts, p. 42. 426 Section 83 A. 427 RSBA s 22 purports to provide this right but it is only conferred to the worker through the recognised majority union or the Minister. 428 Section 51 (1) (b) & (c). 429 Section 51 (1) (a). 430 For example, s 65, application for ex-parte injunction in the national interest. 431 Section 51 (1). See also TD 68 of 1967 Myerson Mouldings Limited v Transport and Industrial Workers’ Union (unreported) delivered April 3, 1968. 432 Discussed further in Chapter 6. 433 Section 10 (5). 62 Commonwealth Caribbean Employment and Labour Law and oppressive’ and what constitutes a ‘principle of good industrial relations’ since the term is not defined in the IRA. The decided cases have concluded that such a determination is within the purview of the Industrial Court, which is the sole arbiter of facts. This is confirmed by De la Bastide CJ in the case of Caroni (1975) Limited v Association of Technical Administrative Supervisory Staff.434 He was of the view that ‘a harsh and oppressive dismissal is something which according to the Act may be identified only by the Industrial Court, as Parliament believed it was clearly not grounded in law but in industrial relations practice … not codified in our jurisdiction but to be determined and applied to facts’. In the Court of Appeal case Caribbean Printers Ltd. v Union of Commercial Industrial Workers435 Rees JA attempted to give a definition of the latter concept. He stated: The [Industrial] Court is under an obligation to pay due regard to the principles of and practices of good industrial relations which have been aptly described as those informal, uncodified understandings which are ancient habits of dealing adopted by trade unions and acquiesced in, or agreed to by employers … the principles and practices of good industrial relations are clearly not law. They are useful convenient practices which have been for a long time observed and understood to govern the relationship of employer and employee in the diverse and varying conditions of persons in the field of industry. Such a view points to the enduring importance of customs and practice as a guideline for determining a pivotal concept underpinning the employment and labour law in Trinidad and Tobago. Arguably international law principles, as discussed above, could also be imputed as useful standards in this regard. The Act provides that in any dispute concerning the dismissal of a worker the court may order conditional reengagement or reinstatement in the worker’s former position or one similar, if it thinks fit, or it may impose an order for the payment of compensation or damages.436 Such payments may be ordered in lieu of reinstatement or reengagement, or be in the form of exemplary damages. In coming to its conclusion the court is not bound by any rule of law relating to assessment of such compensation; in conformity with its primary mandate, its yardstick is what it considers ‘fair and appropriate’.437 After the predecessor ISA was first enacted it became clear that the court erroneously believed it had the power of reinstatement. This was dispelled by the Court of Appeal’s decision in Trinidad Bakeries Ltd v National Union of Foods Hotel Beverages and Allied Worker and the Attorney General.438 The verdict forced an almost immediate amendment to the Act to specifically institute this power,439 but this change was still not fully understood by the court, as forcefully shown by the Court of Appeal’s overturning of their ruling in Fernandes (Distillers) Limited v Transport and Industrial Workers’ Union.440 Several points were disclosed in the judgement including that the court’s power to reinstate is hinged on the finding of harsh or oppressive and unreasonable and unjust action by an employer, which can be found even if the dismissal is lawful or wrongful. Also important is the fact that a substantial case must be disclosed by the union representing the employee and it is not for the employer to disprove. The current IRA provisions relating to reinstatement, though differently worded,441 in principle encapsulates 434 (2002) 67 WIR 223, 226. 435 TT 1972 CA No. 30 of 1972 (unreported) dated February 27, 1975. 436 Section 10 (4). 437 Section 10 (5). 438 (1967) 12 WIR 320, the Court of Appeal ruled that the Industrial Court had no such powers under the legislation. 439 Act 11 of 1967. 440 (1968) 13 WIR 336. 441 The IRA uses the broader term ‘not in accordance with the principles of good industrial relations’ in s 10 (5) in deference to the ISA’s ‘unreasonable and unjust’ in s 13A. Chapter 2: Sources and Institutions of Employment and Labour Law 63 similar guidelines. Thus in Caribbean Development Company Limited v National Union of Government and Federated Workers Union,442 a case that questioned the Industrial Court’s order for reinstatement, the Court of Appeal, in declining to review the decision, recognised that the Industrial Court must consider that factors within the peculiar knowledge of its members are based on evidence. They further opined that ‘the legislature expressly ousted the Court of Appeal’s jurisdiction in certain matters considered essential to determining good industrial relations practice’.443 Right of Appeal ouster clause Section 10 (6) of the Act stipulates that when, in the court’s opinion, a worker is dismissed in the circumstances described above, its decision cannot be ‘challenged, appealed against, reviewed, quashed or called into question in any court on any account whatsoever’. This provision is buttressed by Section 18 (1) (a) which, apart from repeating the terms verbatim, further proclaims that the court’s orders and awards are immune from the application of prerogative orders made by any court.444 There is rich jurisprudence emanating from the Trinidadian Appeal courts in this regard. It has been asked to determine just how far this buffer extends in light of the provisions of Section 18 (2), which provides that an order or award of the court may be challenged on the grounds of being in excess of its jurisdiction, having no jurisdiction, erroneous on a point of law, obtained by fraud or some other illegality. There was an uneasy interplay between these provisions, which are arguably incompatible in operation.445 In Flavourite Foods Ltd. v Oilfields Workers’ Trade Union446 the Court of Appeal expressed the view that Section 10 (6) occupied a unique position in the law and was deliberately inserted to make it clear that the decisions of the Industrial Court in that regard cannot be impeached, regardless of the existence of Section 18 (2) which could only be invoked in specific circumstances. It also thought that this position was ‘sensible and logical’ as its members were selected for their specialised knowledge and experience in industrial relations and, as such, their reasoning should be more readily accepted than judges of the ordinary courts who lacked these qualifications. Further, Justice Hyatali opined that the Industrial Court, having made its decision, ‘not only renders the opinion of the court unassailable, but also bars the company from challenging it and precludes this court from enquiring into it’.447 This view has been consistently upheld by subsequent Court of Appeal decisions,448 as typified in Caribbean Ispat Ltd v Steel Workers’ Union of Trinidad and Tobago449 where it was held there was no right of appeal when the claim merely challenged the decision of the court on the basis of an alleged error of law. The Court of Appeal again examined the issue in the case of Bank Employees Union v Bank of Commerce (Trinidad and Tobago) Ltd,450 expressing the view that clearly Section 18 (2) was subject to Section 10 (6). In other words, an appeal that would otherwise be admissible under section 18 (2) was not actionable if the Industrial Court’s decision as to whether a dismissal was ‘harsh and oppressive 442 [TT 2003 CA 63] Civil Appeal No. 83 of 2002 (unreported) delivered December 17, 2003. 443 Ibid. 444 Section 18 (1) (b). 445 See Castagne, R.M. (1980) ‘The Right of Appeal from Trinidad and Tobago’s Industrial Court’, 12 Lawyer of the Americas, p. 343. 446 TT 1983 CA 5 CA No. 81 of 1978 (unreported) delivered January 26, 1983. 447 Ibid. 448 Neal and Massy Industries Ltd. v Transport and Industrial Workers Union Civil Appeal 21 of 1978 (unreported) delivered July 26, 1984; All Trinidad Sugar and General Workers’ Trade Union v Caroni (1975) Limited Civil Appeal 114 of 2000 (unreported) delivered November 27, 2000. [TT 2000 CA 42]. 449 (1998) 55 WIR 478. 450 TT 2001 CA 70; CA No. 114 of 1999 delivered December 1, 2001. 64 Commonwealth Caribbean Employment and Labour Law and not in accordance with good industrial relations practice’ was being impugned, since the court’s decisions on questions of fact were unimpeachable. It is clear that the Industrial Court is vested with wide-ranging powers and a modicum of protection in relation to its decisions is subject only to what could be considered a limited right of appeal. But even this restricted right has been criticised as being subject to an appeal court lacking the requisite skillset to review its decisions, on the basis of the court’s specialist experience in employment and labour law. Perhaps, as postulated by Castagne, the better view is the consideration of ‘a general right of appeal to a higher authority within the Industrial Court structure’,451 which could be akin to the tripartite Employment Appeal Tribunal in the UK. This could possibly address understandable apprehension felt by stakeholders when faced with appeals in the Court of Appeal. Representation at the court Parties to proceedings may elect to appear in person to present their case, or may be represented by attorneys–at-law or other duly authorised persons.452 In practice trade union officers regularly represent aggrieved workers with varying degrees of success and, in recent times, there has been a growing practice for former judges/members of the court to act as counsel for parties. There have been concerns raised about the desirability of this praxis on the basis that current members may experience conflict when faced with their former colleagues arguing cases before them.453 Notwithstanding these arguments its existence undoubtedly underscores the prevalence of informality in court proceedings. However, should a party elect to utilise the services of an attorney, the industrial court will not make an order as to costs except in exceptional cases and neither will the Court of Appeal on any matter brought before it.454 This was well illustrated in the case of All Island Sugar and General Workers’ Trade Union v Caroni455 where the Court of Appeal expressed the view that the appellant’s contention that the company was negligent in not seeking a stay of execution of the Industrial Court’s order, or that the said court decision was ultra vires, did not cross the exceptional reason bar. Conversely, in the case of Airports Authority of Trinidad and Tobago v Estate Police Association,456 the Court of Appeal ruled in favour of an application where it was clear on the facts that there was a binding authority that precluded a successful appeal from the Industrial Court’s decision. Therefore the appellant’s ill-conceived application constituted an exceptional circumstance where costs attached. Timeframes in the Act: expeditious disposal of disputes The court may also regulate its practice and proceedings to facilitate the expeditious hearing and determination of any matter before it.457 Although the Act does not specify a time frame 451 See Castagne, R.M. (1980) ‘The Right of Appeal from Trinidad and Tobago’s Industrial Court’, 12 Lawyer of the Americas pp. 343 and 357. 452 Section 9 (2). 453 See discussion by Jones, M. (2010) ‘Is the Industrial Court fulfilling its role?’ Trinidad and Tobago Guardian newspaper, dated 15 December, that it should not be allowed and judges should be treated as ordinary Supreme Court judges who cannot practise in the courts for ten years after retirement. 454 Section 10 (2). 455 TT 1985 (CA 82) No. 45 of 1985 (unreported) delivered December 12, 1985. 456 TT 2003 (CA 17) No. 13 of 2003 (unreported), delivered March 12, 2003. 457 Section 13 (1). See Roopchand and Moses v National Union of Foods Hotels Beverages and Allied Workers Civil Appeal 87 of 1970 (unreported) delivered July 18, 1973, the court stated ‘bearing in mind that the IC is not fettered by the limitation of rules which bind civil courts but can generate its own procedure and its proceedings as it thinks fit… the scope of its jurisdiction is wider than that of the civil courts’. Chapter 2: Sources and Institutions of Employment and Labour Law 65 for determination of general services disputes the court must act expeditiously in all the matters.458 It is, however, clear with regard to essential service matters as, once commenced, such cases should be heard on consecutive days and be disposed of within 30 days of referral but, in exceptional circumstances, a further 21 days may be allowed for conclusion of the matter.459 Interestingly, Section 22 D of the Minimum Wages Act prescribes a time frame of two weeks for delivery of judgements.460 These provisions illustrate a recognition of one hallmark of the specialised jurisdiction for employment and labour matters – the speedy resolution of disputes.461 The disputants are also constrained in pursing their claims. An allegation of commission of an industrial relations offence must be made to the court within three months of its origination.462 Parties cannot make a report to the Minister of Labour after six months463 has elapsed since the ‘issue giving rise to the dispute first arose’ but, in appropriate cases, the Minister may exercise discretion and allow an extension of time.464 This provision has been the subject of much judicial consideration since the enactment of the Industrial Stabilisation Act as parties are effectively nonsuited by an adverse determination. In Oilfields Workers’ Trade Union v Texaco Trinidad 465 the Industrial Court sought, by creative interpretation, to extend the time by construing the word ‘issue’ to mean the points raised at the end of pleadings to be eventually determined. The Court of Appeal466 roundly rejected this notion, intimating that the proper understanding should be the ‘event’ giving rise to the issue. When the issue surrounds ‘rights disputes’ this construction is quite plausible as points in time can be ascertained with some degree of certainty. However, when it concerns industrial relations offences or an ‘interest dispute’ the challenges are more apparent since determining the date of the ‘event’ could be problematic, especially when negotiations that disintegrate could be in-train for some time before the matter is reported to the Minister.467 In such cases the appropriate date is the submission of proposal by either party for the conclusion of a collective agreement. Parties should therefore make reports during the period and seek extensions from the Minister as required to ensure locus standi is maintained. Conciliation While attempting to amicably resolve disputes, the court can make suggestions and engage in actions geared towards a non-judicial resolution of the issues at any stage before a hearing commences. The process begins with the court issuing directions468 to the parties to ascertain the main issues surrounding the case. Thereafter the President may either remit the dispute, with or without conditions, to the parties themselves for further consideration469 or designate 458 See TD 370 of 1997 Bank and General Workers Union v Unit Trust Corporation of Trinidad and Tobago (unreported) delivered February 1, 1999, where Khan VP stated ‘the very nature of trade disputes require expeditious determination’. 459 Section 13 (3). 460 They must thereafter make weekly reports in open court indicating why the matter is not concluded until such time as it does. 461 See Dickens, L. and Cockburn, D. (1986) ‘Dispute settlement institutions and the courts’ p. 560 in Lewis, R. (Ed.) Labour Law in Britain, Oxford: Blackwell. 462 Section 84. 463 Section 51 (3), see also TD No 41 of 1970 Pan American World Airways Inc. v Communication and Transport Union (unreported) delivered December 1, 1970. 464 See also s 51 (4), the Minister may seek guidance from the court in this regard. 465 TD No 165 of 1967 (unreported) delivered June 30, 1969. 466 Oilfields Workers’ Trade Union v Texaco Trinidad Civil Appeal No. 42 of 1969 (unreported) delivered February 8, 1972. 467 See A No. 70 of 1981 Citibank N.A. v Bank and General Workers Unions (unreported) delivered July 22, 1981. 468 Section 10. 469 Section 10 (1), see also Oilfields Workers’ Trade Union v National Petroleum Co. Ltd. TD 43 of 2000 (unreported) delivered March 17, 2003. 66 Commonwealth Caribbean Employment and Labour Law a member of the court to offer conciliation as a methodology to secure a determination of the matter,470 which incorporates what is now known as ‘alternative dispute resolution’ mechanisms, a long-established practice in the industrial relations arena.471 Although predisposed towards amicable settlement of cases the court is, however, not constricted in its powers to dispose such matters. It is also vested with the authority to dismiss any matter that appears trivial, or where further proceedings would be unnecessary or undesirable in the public interest.472 Thus in Public Services Association v Chief Personnel Officer473 the court dismissed a 30-year-old dispute that was resurrected by the applicant, being of the view that no useful purpose would be served by a hearing and determination of the matter at that time. Contempt of court In executing its functions the Industrial Court has authority to punish parties for contempt of court474 under prescribed conditions.475 This extends to the initiation or continuation of industrial action while proceedings are pending, whether or not such action is taken due to dissatisfaction or disagreement with an award or order.476 It is left to the court’s absolute discretion to determine what constitutes contempt and the pursuit of any ensuing action to castigate the offender.477 Thus in Attorney General v Panday and Vanguard Publishing 478 the High Court declined to hear an application by the Attorney General on behalf of the court’s President advising that the Industrial Court possessed the authority to protect itself. Rees JA opined that: … from the Industrial Stabilisation Act is established … it was the clear intention of Parliament to have a Superior Court of record administering a system of law wholly distinct both in substance and matters of procedure from the system of law administered by the Supreme Court of Judicature … it seems only right that such a court should have the powers necessary to vindicate its own dignity.479 As such Chaudhary’s contention that contempt is ‘constituted by any conduct that tends to bring the authority and the administration of the law into disrespect or disregard’480 is instructive for parties to industrial disputes and for the operations of the Industrial Court generally. Procedural guidelines As a superior court of record, the Industrial Court has all the powers, rights and privileges as are vested in the High Court of Justice. Therefore it can summon witnesses481 and subpoena 470 Section 12 (2) - if conciliation is unsuccessful, that member cannot adjudicate the matter thereafter. 471 See Goolsarran, S. (2006) ‘An Overview of Industrial Relations within the Context of Labour Administration’ in Industrial Relations in the Caribbean, p. 13. 472 Section 10 (1) (d). 473 TT 2005 IC 115 (ST 15 of 1974; ST 6 of 1975) (unreported) delivered December 2, 2005. 474 Section 7 (2) and (7); see also Chaudhary R. (1981) ‘Contempt of the Trinidad and Tobago Industrial Court’, 30 ICLQ 260. 475 Section 7 (6) – if a member is sitting alone he may exercise power, otherwise a panel constituted of at least two persons one of whom must be the President, Vice President or a Division Chairman. 476 Section 66 (1) and (2). This power is also accorded to the Court of Appeal. 477 See Newton James v Attorney General of Trinidad and Tobago, Cynthia Riley Hayes and Ursula Gittens Civil Appeal No 606A of 1988 (unreported) delivered June 27, 1988. 478 (1976) 15 WIR 172. 479 Ibid. p. 179. 480 Chaudhary, R. (1981) ‘Contempt of the Trinidad and Tobago Industrial Court’, 30 ICLQ 260; see Metal Box (Trinidad) Ltd. Union of Food Hotel and Industrial Workers C 1 of 1975 (unreported) delivered March 21, 1975. 481 Civil Appeal No 120 of 1993 Nutrimix Feeds Limited and United Hatcheries Limited v Oilfields Workers’ Trade Union (unreported) delivered July 3, 1995. Chapter 2: Sources and Institutions of Employment and Labour Law 67 documents, hold hearings in camera or require evidence to be presented in writing,482 and may also appoint assessors to assist in the determination of any matter.483 Notwithstanding its judicial standing, because of its unique scope the court is not bound by formal rules of evidence prescribed by the Evidence Act and may act without regard to legal technicalities.484 However, this is not to say that the court can act capriciously for, as stated by noted Trinidadian attorney Reginald Armour, ‘though freed from the strictures of the rules of evidence the court cannot depart from minimum rules in a willy-nilly fashion … the power to depart from rules of evidence does not mean it is to have no regard to rules of evidence’.485 The court may also hear matters ex-parte when the absent party has been duly served with process and does not appear,486 but a disenfranchised party can seek to have the matter reinstituted if they are not at fault. The court can also join any person as a party to an action as it deems appropriate.487 In adjudicating on the matters transmitted to it the court must consider submissions, arguments and evidence presented either orally or in writing by the employer, trade union on behalf of the worker or the Attorney General,488 if he intervenes as provided by Section 20. The role and function of the Trinidad Court has over the years expanded and, despite criticisms levelled at it from both ends of the spectrum which is to be expected in labour and employment matters, it has garnered a level of respect from the general populace. The statistics indicate that, on average, some 600 cases are filed in the court annually in all its jurisdictions.489 The judges of the court recognise its unique eclectic nature and strive to meet the demands of its statutory mandate. The court’s dicta in Oilfields Workers’ Trade Union v Trinidad Cement Limited490 evinces that it has a clear understanding of the delicate balance that must be struck in the adjudication of the matters remitted for consideration and it merits extensive quotation: This Court is both a Court of law and a Court of industrial relations, and we are charged by s.10 (3) of the Act to deal with all matters which come before us in accordance with equity, good conscience, the substantial merits of the case, having regard to the principles and practices of good industrial relations. We are also required by that section to make such orders or awards as we consider fair and just having regard to the interests of the persons immediately concerned, and of the community as a whole. In our view one of the consequences or implications of this mandate is that the Court should at all times strive to strike a proper balance in the realm of industrial relations between judicious innovation on the one hand and reactionary stagnation or retrogression on the other. In other words the Court should be careful never to advance so far ahead of the prevailing norms of good industrial relations principles and practices as to be unnecessarily adventurous and innovative. On the other hand, the Court must be equally careful not to permit either employers or unions to drag their feet and continue to live in the past while the rest of the world (in today’s increasingly global economy with all its competitiveness and inter related realities) advances into the 21st century. 482 Section 8 (1) (3) (5). 483 Section 8 (6). 484 Section 9 (1); see Caribbean Printers Limited v Union of Commercial and Industrial Workers Civil Appeal No. 30 of 1972 (unreported ) delivered February 27, 1975. 485 Armour, R. (2005) ‘Powers of the Trinidad and Tobago Industrial Court’ published by the Trinidad and Tobago Guardian newspaper 8 April; see TD 80 of 1988 Transport and Industrial Workers’ Union v Public Transport Service Corporation (unreported) delivered April 30, 1990. The court noted that section 9 (1) did seem sufficiently wide to admit Hansard into evidence if the court found it necessary. 486 See TD No 10 of 1995 Oilfields Workers’ Trade Union v Petroleum Company of Trinidad and Tobago (unreported) delivered April 19, 1996 where Khan P stressed that parties who had been given an opportunity to be heard, and fail through their own fault or negligence to utilise that opportunity, do not have a ground of complaint. 487 Section 11. See also Port Contractors Limited v Shipping Association of Trinidad; Shell Trinidad Limited v Seamen and Waterfront Workers Trade Union (1972) 21 WIR 505. 488 Section 17. 489 Between 2002 and 2012, 6,319 matters were filed. 490 TD 82 & 84 of 1992 (unreported), delivered April 28, 1995 [TT 1995 IC 25]. 68 Commonwealth Caribbean Employment and Labour Law Table 1 Number of Matters Filed in the Industrial Court of Trinidad and Tobago 2002–2012 Year Number of Cases 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 TOTAL 702 635 643 455 656 481 560 692 781 878 935 6319 Source: Trinidad and Tobago Industrial Court Annual Reports 2002-2012. If this view is totally subscribed to by its members, the continued evolution of the court as the bastion of enlightened employment and labour law principles and procedures in Trinidad and Tobago will be assured and the current confidence491 reposed in its operations by employers and employees will be vindicated. Industrial Court of Antigua and Barbuda The Antiguan Industrial Court also began its life under one statute492 and was rebirthed with greater jurisdiction by another. The current court was established by the Industrial Court Act493 in 1976. It has many similarities with its Trinidadian counterpart as it is also itinerant,494 possesses wide jurisdiction including the hearing and determination of trade disputes,495 in addition to enjoining trade unions, workers or other persons as well as employers from taking industrial action.496 It is also empowered to hear and determine complaints and other matters referred to it by virtue of the establishing Act’s provisions.497 The most widely pursued cases are those of unfair dismissals, followed by negotiations of collective agreements as a distant second.498 The Antiguan Industrial Court is, however, not a superior court of record. When the Industrial Court Act was promulgated in 1976 it purported by Section 17 (4) to oust the supervisory jurisdiction of the Supreme Court by providing that any order, award, finding or decision could be challenged, appealed against, reviewed, quashed or called into question in any court on any account whatever. The section also sought to protect the Industrial Court from being subject to the issue of any prerogative order by a review court. In effect the Act sought to clothe the Industrial Court in the garb of the Supreme Court without having the requisite power to do so. 491 See Khan, A. (2006) The Law of Labour and Employment Disputes in Trinidad and Tobago, Derwent Press, p. 331 where he (a former Vice President of the Court) opines that ‘at the present time… both employers and trade unions feel assured that they can rely on the Industrial Court for independent and impartial judgements’. 492 Trade Disputes (Arbitration and Settlement) Ordinance No 13 of 1967. 493 Act No 4 of 1976 – s 4 (1). 494 Section 7 (5). 495 See definition in s A5 of the Labour Code – the essential feature is that disagreement between the parties leads to industrial action. 496 Section 7 (1) (a) and (b). 497 Section 7 (1) (c). 498 Between 2002 and 2012, of the 304 cases registered in the court, 231 related to unfair dismissals and a mere 16 were negotiations. Chapter 2: Sources and Institutions of Employment and Labour Law 69 This deficiency was clearly exposed in the case of Farrell v Attorney General of Antigua499 when the Court of Appeal ruled that Section 17 (4) was void but severable from the residual sections thus allowing them to remain in force. Effectively, therefore, the court could be considered as a semi-judicial body as it is not a formal part of the judicial hierarchy in Antigua. It possesses a somewhat hybrid structure in that, while not a superior court of record, it still remains vested with ‘certain powers, rights and privileges’ of the High Court in relation to the attendance and examination of witnesses, the production and inspection of documents and the enforcement of orders.500 The Act also endows the court with the authority to sanction any person who commits contempt and impose fines for failure to comply with an order or award.501 Proceedings may be commenced by the aggrieved organisation or individual while the court itself may summon a recalcitrant litigant to answer for breach of its orders.502 The composition of the court bears some parallels to the Trinidadian equivalent in that the members are persons who possess experience in industrial relations, business administration, or public administration, are either qualified as accountants, economists or are barristers or solicitors with a minimum of five years’ standing.503 However, there is a difference relating to the President, as the appointee may either be an attorney with not less than ten years’ standing or a person with substantial background and experience in industrial relations, business administration, public administration or accounts.504 The court is duly constituted if it consists of two or more members hearing a trade dispute, or at least one member when hearing any other matter as assigned by the President.505 Members may hold office for a maximum of five years and are eligible for re-appointment.506 Importantly decisions of the court are determined by a majority of the members507 and they may be assisted by assessors.508 It is clear that the composition of the court is a matter where esteem is given to personnel with proficiency in employment and labour law affairs, thus providing a specialised mechanism for the appropriate disposal of industrial disputes. In this regard the court, like its Trinidadian counterpart, is not bound to follow rigid legal form and may take into account opinion evidence it considers relevant.509 It may also make its own rules to regulate practice and procedure,510 including giving directions and advocating alternative dispute resolution procedures, as are necessary to determine matters with alacrity.511 Thus the court should, where practicable, give awards within 30 days of referral512 and, in relation to ‘major disputes’513 over which it has exclusive jurisdiction, within 21 days.514 Notably a claim cannot be made outside a six-month window from the origination of the complaint.515 499 (1979) 27 WIR 377. 500 Section 8 (1). 501 Section 7(2). 502 Section 7 (3) and (4). 503 Section 4 (4) (b). 504 Section 4 (4) (a); need not be a judge of the Supreme Court or qualified as such. 505 Section 4 (8). 506 Section 5 (2). 507 Section 7 (6). 508 Section 8 (6). 509 Section 9 (1). 510 Section 12. 511 Section 11. 512 Section 8 (7). 513 Section 2, Essential Services Act 2008 – a trade dispute that has seriously jeopardised or is likely to seriously jeopardise the health and safety of persons in Antigua and Barbuda or the economy… because of an interruption of work or threatened interruption of work. 514 Essential Services Act 2008 (Act 9) s 5. 515 Section 28. 70 Commonwealth Caribbean Employment and Labour Law Regarding representation of parties, the court will countenance trade union officials, legal practitioners and officers or an organisation of employers or workmen,516 but cannot order costs save in exceptional circumstances.517 To facilitate the expeditious disposal of matters the court may hear cases ex-parte and can order the joinder of any party to the proceedings before it where such a party is likely to be affected by an award or it appears just to do so.518 These provisions were examined in Jarvis v Carib Enterprises Ltd519 where the claimant unsuccessfully sought to mount a claim for wrongful dismissal in the High Court after the substance of the claim was previously unfavourably entertained by the Industrial Court. On further appeal the Court of Appeal confirmed the powers of the Industrial Court to not only institute its own procedures but also to conclude with finality the claim made by the aggrieved worker in the absence of conformity with its instructions. In the instant case the worker engaged a labour consultant who, despite strenuous efforts by the court to facilitate compliance, ignored requests for a written memorandum disclosing the basis of the claim. At the hearing the worker’s clear refusal to submit to the court’s jurisdiction caused it to dismiss the matter without consideration of its merits and to declare it finally determined. Thus the language of Section 11 of the Act authorised and defined the wide ambit for the court’s actions, which was endorsed by the Court of Appeal. The court is empowered to make interim orders/awards520 that may be retroactive in application.521 These range from reinstatement and reemployment to the payment of compensation or damages in lieu thereof, possibly extending to the payment of exemplary damages in appropriate cases.522 However, in coming to its conclusion, the court is enjoined to make orders that are just and fair having regard to the interest of the immediate parties as well as the community as a whole. It must also act in accordance with equity, good conscience and the substantive merits of the case and the principles and practices of good industrial relations as guided by the provisions of the Labour Code.523 This approach was exemplified in the locus classicus of Cable & Wireless (West Indies) Ltd v Hill and Others524 where the Industrial Court ordered reinstatement for certain unfairly dismissed workers and, on appeal, the Court of Appeal reversed this award remitting the case for assessment of compensation as being the most appropriate remedy. The Appeal Justices noted the Industrial Court should have regard ‘not only for the wishes of the employee but also the practicability of compliance with an order and any contributory fault of the employee’.525 This decision showed a holistic approach taken in light of fairness and the prevailing industrial relations climate in the subject company quite in line with the philosophy of the Act and the Labour Code. Particularly in relation to dismissals, the court may find that terminations occurred in circumstances that were harsh and oppressive and in breach of good industrial relations practice. If it confers compensation or damages as redress it is not bound by any rule of law regarding assessment but rather may rely on its own opinion of what amounts to a fair and appropriate award.526 Unlike its Trinidadian counterpart, where individuals are estopped from approaching the court except in specific cases as provided by statute,527 a party may personally approach the Antiguan Court for unfair dismissal redress regardless of whether they are affiliated with a 516 Section 9 (2). 517 Section 10 (2). 518 Section 11. 519 (1985) 35 WIR 205. 520 Section 10 (1). 521 Section 14 (1) – cannot extend past the date of inception of the dispute. 522 Section 10 (4). 523 Section 10 (3). 524 (1982) 30 WIR 120. 525 Ibid. 526 Section 10 (5). 527 See discussion above. Chapter 2: Sources and Institutions of Employment and Labour Law 71 Table 2 Number of Matters Filed and Settled in the Antigua and Barbuda Industrial Court 2002–2012 Disputes Referred to The Industrial Disputes Tribunal of Antigua 2002-2012 Types 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 Unfair dismissal 20 Dismissal 6 Constructive 2 dismissal Severance 1 Negotiations 2 Compensation 5 Unfair labour 1 practice Non-payment 1 of company portion of thrift fund Wrongful 0 dismissal Breach of contract 0 Unfair treatment 0 Redundancy 0 Bonus 0 Suspension 0 Unfair rate of pay 0 Unpaid terminal 0 benefits Unfair lay off 0 Termination 0 without notice Pension/gratuity 0 Outstanding 0 salaries owed Total 38 34 1 1 22 0 0 25 1 0 16 0 0 14 3 0 11 0 0 25 0 0 15 0 0 19 0 0 30 0 1 0 2 1 1 2 0 1 0 0 0 1 0 0 5 0 0 0 0 0 0 1 0 0 0 2 2 0 0 3 3 0 0 1 2 0 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 1 1 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 1 0 1 0 0 1 0 0 0 0 1 0 0 0 2 0 0 0 1 0 0 0 0 0 0 1 0 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 0 1 42 25 29 22 17 14 31 26 25 35 Source: Antigua and Barbuda Industrial Court. collective grouping or the dismissal is related to a trade dispute. In Universal Caribbean Establishment v Harrison,528 an appeal challenging the court’s jurisdiction to hear unfair dismissal cases, Byron CJ (Ag) masterfully dissected the provisions of the Industrial Court Act and concluded that the existence of a trade dispute was not a condition precedent for the exercise of its powers. This decision put beyond doubt the scope of the court’s functions as regards such cases. The court’s decisions may be appealed on a point of law if: it lacked jurisdiction and objection was formally raised during the progress of the case, it exceeded its jurisdiction, its order or award was fraudulently or otherwise illegally obtained,529 or the decision was erroneous on a point of law. The Court of Appeal may either remit the matter for full rehearing530 or, in relation to a particular point, it may dismiss the appeal if no substantial miscarriage of justice occurred, notwithstanding any point that may be decided in favour of the appellant.531 The question of whether the court acted speciously on a point of law was addressed by the Privy Council in Sundry 528 (1997) 56 WIR 241; overruling Krebbs v Universal Caribbean Establishment [AG 1997 HC 41] (1997) unreported Suit No. 136 of 1993. 529 Section 17 (1). 530 See Berridge and Another v Benjies Business Centre (1994) 49 WIR 50. 531 Section 17 (2) and (3). 72 Commonwealth Caribbean Employment and Labour Law Workers v Antigua Hotel and Tourist Association.532 Here, the workers who were dismissed on the grounds of participation in an unlawful industrial action sought redress from the industrial court which found the dismissal unfair. On appeal by the Hotel Association the Court of Appeal reversed the award, averring that the Industrial Court did not adequately address its mind to relevant issues in arriving at its decision. However, on further appeal the Privy Council concluded that on questions of fact the Industrial Court reigned supreme and there was sufficient evidence for it to conclude that the employers acted in a manner that was in breach of good industrial relations practice applicable in Antigua. This decision is in accordance with Section 10 (6) of the Act, which precludes any challenge in this regard which mirrors the Trinidadian provision. Industrial Tribunal (Bahamas) The Industrial Tribunal was created by the 1996533 amendment to the Industrial Relations Act, abolishing the Industrial Relations Board, that formerly had jurisdiction to address certain industrial essential service disputes, and the Arbitration Tribunal, which previously dealt with non-essential services disputes. The new incarnation is conferred with jurisdiction to hear and determine both types of disputes, register industrial agreements and adjudicate any dispute emanating from their application and to hear and determine any other disputes contingent on the provisions of the Act properly referred to it.534 Trade disputes are delineated inter alia as ‘general disputes’, which relate to the creation of new terms or conditions of employment, or ‘limited disputes’, which encompass the application of existing terms or conditions of employment or the denial of such rights.535 In furtherance of its mandate it may remit a dispute back to the parties for further consideration, make a full or provisional order/award, give directions on any matter, award compensation other than damages, and dismiss cases considered trivial or undesirable in the public interest.536 It may also hear cases ex-parte, join parties, and give general directions for the proper disposal of the case.537 The tribunal is constituted by three members appointed by the Governor General, acting on the advice of the Judicial and Legal Services Commission, one of whom is appointed as the President (and is the senior member with responsibility for its administration), while the others are Vice Presidents.538 All the members must be attorneys with at least ten years’ standing539 and it is itinerant in operation.540 Where the President decides that it is desirable in the public interest, the tribunal may sit with all three members or with one member in addition to two persons selected from a panel appointed by the Director of Labour to hear a general dispute.541 This minimum 12-member panel is determined after consultation with the employer and employee organisations, each provided with equal membership, and the persons appointed must have wide experience in trade, industry, financial or commercial matters, trade unionism or administration.542 It should be noted that while the President and Vice Presidents receive 532 (1993) 42 WIR 145. 533 Act 9 of 1996; s 54 of the substantive Act. 534 Section 55. 535 Section 2 – these are also called ‘disputes of interests’ and ‘disputes of rights’ respectively. 536 Section 58 (1). 537 Section 59. 538 Section 54 (3). 539 Section 3 Fourth Schedule. 540 Sections 2 and 18 Fourth Schedule (currently the court sits in Nassau and Freeport). 541 Section 56 (1) – this formation is called a ‘Full Tribunal’. 542 Section 56 (4). Chapter 2: Sources and Institutions of Employment and Labour Law 73 some security of tenure,543 the other members are not as endowed since they operate on threeyear terms and may be terminated at the behest of the Director of Labour.544 The tribunal is enjoined to avoid formality in proceedings, to act expeditiously in disposing of cases and is not fettered by the strict rules of evidence.545 In making its awards it must, however, be guided by the government policy of maintaining high levels of employment, productivity, international and domestic competition in addition to the general public interest.546 Matters are initiated by a report to the Minister who is initially enjoined to encourage non adjudicatory means of settlement and only when these attempts fail will a reference be made to the tribunal.547 Thereafter the tribunal may itself utilise conciliation548 or other means to resolve matters before proceeding to adjudication. If these efforts are unsuccessful, the tribunal may make orders for re-instatement or re-engagement549 or monetary compensation550 under prescribed guidelines.551 To access the tribunal there must be must a ‘trade dispute’ and the Minister must make a reference to the tribunal. In Island Construction Company Limited v Industrial Tribunal, Attorney General, Commonwealth Wholesale Retail and Allied Workers Union552 Ibrahim J succinctly explained the jurisdiction of the tribunal stating: ‘the Act does not entitle a party to approach the Industrial Tribunal with a dispute and therefore the report directly made to the Tribunal was ultra vires and it was also ultra vires for the Tribunal to assume jurisdiction of the report’. It should also be noted that the tribunal cannot enforce its own awards but must rely on the Supreme Court mechanisms in this regard.553 Similar provisions relating to appeals of awards or orders exist in the same way as those operational in Trinidadian and Antiguan Industrial Courts,554 with the additional stricture of determining if the award for damages is exceedingly high or inordinately low. However, there is no protection against applications for prerogative orders, which is understandable when viewed in light of the fact that the tribunal has not been endowed with any of the specific powers of a superior court and thus remains subject to the Appeal Court’s inherent supervisory powers on points of law and other specified grounds.555 Industrial Disputes Tribunals (Jamaica)556 Prior to 1975 when the Labour Relations and Industrial Disputes Act (LRIDA) was promulgated, there was no permanent arbitration mechanism to address industrial disputes. What existed were ad hoc voluntary arbitration panels appointed as warranted under the provisions of the Trade Disputes (Arbitrations and Enquiry) Law557on the one hand and compulsory 543 Section 4 Fourth Schedule - may retain office until age 67 and may only be removed for infirmity or misbehaviour following a prescribed procedure. 544 Section 56 (6). 545 Section 57. 546 Section 58 (2). 547 Sections 68-73. 548 Section 60. 549 Section 43 Employment Act. 550 Section 44 Employment Act. 551 Section 46 Employment Act. 552 CA Civil Appeal 29 of 2003 delivered March 29, 2003. 553 Section 61; Re Jack Tar Village Suit No. 1723 of 1989 (unreported) delivered April 4, 1990 [BS 1990 SC 30]. 554 Section 63 (1); see discussion above page….. 555 Section 64; see also Tropigas Ltd. v Rolle Civil Appeal No. 13 of 1983 Bahamas CA (unreported) delivered February 6, 1985. 556 See the very practical guidance given in relation the tribunal’s practice and procedure in The Tribunal and The Worker: A Guide to Arbitration (1987), Joint Trade Unions Research Development Centre Publication. 557 Law 16 of 1939. 74 Commonwealth Caribbean Employment and Labour Law arbitration of essential services disputes under the Public Utility Undertaking and Public Services Arbitration Law558 on the other. The advent of the LRIDA ushered in the era of full compulsory arbitration through a permanent Industrial Disputes Tribunal (IDT) established by Section 7.559 The IDT sits in panels560 of three, headed by a chairman or deputy chairman appointed by the Minister after consultation with organisations representing employers and organisations representing workers being persons who ‘appear to the Minister to have sufficient knowledge of or experience in relation to labour relations’.561 The other two ‘wing members’ are chosen by the Chairman to sit in each case but are initially appointed by the Minister from a panel supplied to him by the said organisations.562 When the dispute involves the interpretation, application, administration or alleged violation of a collective agreement the Chairman or a Deputy Chairman may sit alone to adjudicate on the matter or a panel, set up in the manner described above, may do so if the parties to the dispute agree.563 The Minister may appoint a special panel when dealing with national interest disputes564 and may also temporarily constitute additional panels to assist if the workload of the tribunal increases.565 Assessors may with the consent of the parties be appointed to support the work of the tribunal566 but this accommodation has been rarely utilised. The tribunal decisions are by majority but if there is no consensus the Chairperson has a casting vote.567 The tribunal is required to deliver its award within 21 days of referral and where it is impractical so to do it can present the award so soon as practicable.568 This time frame can be extended for a further 21 days or to any other period that the tribunal may agree if the parties agree.569 The tribunal is not obliged to give reasons for its decisions570 and in its early days would routinely not do so, a throwback to the days of the ad hoc panel.571 To their credit, in the recent past the panels have risen to the occasion, which has served it well especially when matters are being challenged. Arguably their awards have withstood the acid test of judicial review as at 558 Law 6 of 1952. 559 It should be noted that there was vibrant debate surrounding whether Jamaica should have taken a route similar to Trinidad and Tobago and created an Industrial Court. See the interesting discussion of this issue by Stone, D. (1970 & 1971) ‘What Kind of Industrial Court for Jamaica Parts 1 and 2’, Jamaica Law Journal, pp. 17- 24 and pp. 18-22 respectively. Stone recommended that a court should not be adopted because inter alia it would inhibit collective bargaining, would not reduce the level of strikes, would not be impartial having regard to the political party alliances that existed with unions, and would destroy Joint Industrial Councils. He instead suggested that the number of arbitrators be increased and the establishment of a permanent tribunal but still continuing via the voluntary access by parties to disputes. His views were only partially accepted as is obvious in the model adopted under the LRIDA. 560 Section 8 (1). 561 Section 1(1) (a) Second Schedule. 562 Ibid. s (1) (1) (b). 563 Section 8 (2) (a) and (b). 564 Section 10; s 1 (1) (c) Second Schedule; see also McKoy, D. (1979) ‘The constitution of the Industrial Disputes Tribunal in compulsorily arbitrated disputes in Jamaica’, WILJ pp. 55-58 where he comments on the methodology used to set up this special panel. 565 Section 1 (2) Second Schedule; this provision was being abused to ‘set up’ personalised panels but this practice was halted by the decision in Re Industrial Disputes Tribunal ex-parte Caribbean Steel Company Limited Suit No. M97 of 1992 (unreported) delivered January 21, 1993. 566 Section 8 (5). 567 Section 8 (8). 568 Section 12 (1); see also R v The Industrial Disputes Tribunal Alcan Jamaica Company Alumina Partners Jamaica Alcoa Minerals of Jamaica Incorporated Kaiser Bauxite Company Reynolds Jamaica Mines Ltd. Ex-parte The National Workers Union (1981) 18 JLR 293 where the court ruled that the 21 day requirement to make award was not a mandatory provision, especially in situations where it was not practicable in the circumstances of a particular case. 569 Section 8 (2). 570 Section 12 (3). 571 See the argument by Cowell, N. (1992) Judicial Intervention and the Changing Balance of Power in Jamaican Labour Relations – paper presented at the Symposium in Honour of Carl Stone, UWI Mona, Jamaica, 16-17 November, p. 23; see also generally Gershenfeld, W. J. (1974) Compulsory Arbitration in Jamaica, Institute of Social and Economic Research UWI Mona, Jamaica. Chapter 2: Sources and Institutions of Employment and Labour Law 75 least two landmark IDT awards have been affirmed by the Supreme Court, Court of Appeal and the Privy Council.572 Notwithstanding these ringing endorsements Hosang, in considering the complex issues of distinguishing between wrongful and unfair dismissals, expressed some scepticism regarding whether the ‘Tribunal ha[s] the specialist resource skills, as traditionally constituted, to deal with such issues, notwithstanding that its decision in this particular dispute received both Court of Appeal and Privy Council approval’.573 It is submitted that despite the enunciated concern, based on the rationale for its existence and the fact that in the Jamaican employment and labour law landscape no statutory definition has been provided for either of these concepts, the IDT is indeed the most appropriate forum to address these issues on the basis of factual peculiarities of each case. The tribunal may make retroactive awards but they cannot predate the initial genesis of the dispute and it should state specifically the date it becomes effective.574 Like its virtual counterparts in Trinidad and Tobago, Antigua and the Bahamas the IDT’s awards are final and conclusive and no proceedings may be brought in any court to impeach its validity, except on a point of law.575 This provision has generated numerous applications for judicial review with varying results. 576 The tribunal is also empowered to make ex-parte ‘back to work orders’ in the case where industrial action is ongoing or threatened,577 to assist the parties in settling their disputes via conciliation and negotiating if requested by the parties to do so,578 as well as order reinstatement or compensation in appropriate cases.579 It may also hear the dispute referred to it by the Minister (ex-parte) if one party refuses to appear before it.580 Any order made by the tribunal is binding on all the parties and an award that relates to wages and other terms and conditions of employment automatically becomes an implied term of the contract of employment.581 If there is any doubt as to the interpretation of an award any party to the disputes or the Minister may request a clarification hearing.582 The tribunal is, however, restricted in the types of award it may make in relation to wages, or hours of work, or conditions of employment that are regulated or controlled by or under any enactment,583 and it may not make an award that is contrary to the national interest.584 Thus in R v Industrial Disputes tribunal ex-parte Seprod Group of Companies585 the court held that the term ‘national interest’ was not defined and the question of whether a particular thing or action is in the national interest is a question of fact, based on the prevailing need of the nation at a particular time. In circumstances where the economic recovery of the nation required wage constraints it was unacceptable that the tribunal made an award of 75 per cent increase in 572 See the Village Resorts and Jamaica Flour Mills cases. 573 Hosang, L. (2006) ‘Redundancy, dismissal and reinstatement: The Jamaica Flour Mills Case & beyond’, 31 WILJ 177 at p. 192. 574 Section 12 (4) (a) and (b); see also R v Industrial Disputes Tribunal ex-parte Shipping Association of Jamaica (1979) 16 JLR 442. 575 Section 12 (4) (c). 576 See, for example, R v Industrial Disputes Tribunal Ex-parte Gayle Supermarket and Hardware Limited (1991) 28 JLR 546 where the court ruled that the IDT award should be quashed as it had no jurisdiction to hear the referral. 577 Section 12 (5) (a). 578 Section 12 (5) (b). 579 Section 12 (5) (c). 580 Sections 12 (5A) and 16 (a). 581 Section 12 (6). 582 Section 12 (10); see also R v Bustamante Industrial Trade Union and the National Workers Union and the Industrial Disputes Tribunal Ex-parte Jamaica Public Service Company Limited (1983) 23 JLR 309 where the courts held that the tribunal cannot seek to use an interpretation hearing to amend an award which is clear on its face; see also Domestic and Industrial Society v National Workers Union (1990) 27 JLR 11. 583 Section 12 (7) (a). 584 Section 12 (7) (b). 585 (1981) 18 JLR 456. 76 Commonwealth Caribbean Employment and Labour Law salary as this was contrary to the national interest. However, in reviewing this issue the courts further opined that in coming to a conclusion of what is national interest the tribunal should not slavishly follow a government policy decision but rather should examine ‘all sides of an issue from a position of unquestionable objectivity and arrive at a just balance’.586 On a procedural note, the IDT allows an individual party to a dispute to appear in person before the tribunal, or to be represented by an attorney-at-law, by an officer of a trade union concerned or of the organisation representing employers and, if the party is a corporation, by an officer of the corporation. The tribunal may also allow any other person to make representation on another person’s behalf.587 Another important procedural point to be noted is that the tribunal may regulate its own proceedings.588 However, this power cannot be utilised arbitrarily as noted in R v The Industrial Disputes Tribunal ex-parte Knox Educational Services Limited589 since although it is not bound by the ordinary rules of evidence it must nonetheless abide by the rules of natural justice. The Judicial Review Court has also provided guidance to the tribunal in relation to the operations of the basic rule of law that are applicable to their procedures. Thus, in quashing the tribunal’s award made in Shackelford v Portland Parish Council,590 the court indicated that no matter how reprehensible the behaviour of an employer may appear the tribunal must be guided by the law and, in this case, the parish council was empowered by law to retire the complainant. As is evidenced by the statistics in Table 3a, the tribunal has been very active in addressing matters that have been referred for settlement by the Minister. However, depending on the impact of its rulings, the IDT is either vilified or hailed as being the bastion of what is good in industrial relations in Jamaica. Statistics obtained from the IDT591 reveal that, during its 39 years of existence, it has made 802 awards. Of these awards 381 were in favour of the union/worker while 291 decisions supported the employers’ case. There were 120 ‘no awards’. The question has quite predictably been posed – is the IDT biased in making its awards? The issue was interrogated by Taylor and Lennox in the 1990s592 and they concluded that, though there were indeed some structural biases in the form of the gender inequality on panels and the disproportionate union representation on panels in the face of its declining influence on workplace relations generally, there was little ‘support for the notion that there has been a bias in the IDT awards’.593 Such a view may be considered a positive for the incumbent system and should engender confidence in its continued operations especially in light of the need to keep industrial conflicts to a minimum and reduce the incidents of applications for judicial review (see Table 3b). Interestingly, prior to 2010 when the LRIDA was amended,594 the tribunal only countenanced cases brought through the auspices of union representation,595 in much the same manner as the Recognised Majority Union operated in Trinidad and Tobago. However, as can be seen from the data below (see Table 4), there has been a steady increase in the number of 586 See Jamaica Association of Local Government Officers and National Workers Union v The Attorney General (1995) 32 JLR 49 at 50. 587 Section 16 (1). 588 Section 20. 589 (1982) 19 JLR 223. 590 Suit No. 48 of 1978 (unreported), summarised in Cowell, N. (1992) A Summary of Test Cases in Jamaican Labour Law, Joint Trade Unions Research Development Centre Publication, pp. 41-45. 591 Available data covered the period 1975-2012. 592 Taylor, O. and Lennox, A. (2003) ‘The Jamaican Industrial Disputes Tribunal (IDT) in the 1990s and beyond: is there a bias?’ 5 Caribbean Journal of Public Sector Management 24-41. 593 Ibid. p. 35. 594 Act 8 of 2010. 595 R. v Minster of Labour and Employment, The Industrial Disputes Tribunal, Devon Barrett, Lionel Henry and Lloyd Dawkins Ex-parte West Indies Yeast Co. Ltd (1985) 22 JLR 407. 21 2 8 3 Wages and conditions of employment Representational rights Dismissals and suspensions Miscellaneous* 7 0 6 1 2001 7 2 14 2 2002 5 0 4 2 2003 4 2 6 0 2004 18 7 4 24 53 Awards handed down Disputes settled by agreement Disputes withdrawn Disputes outstanding Total 15 3 2 19 39 2001 13 6 3 22 44 2002 16 4 4 6 30 2003 6 3 1 10 20 2004 8 3 0 11 22 2005 6 0 4 0 2005 * Includes emergency duty allowance, payments for strike periods and issuance of letters of reprimand. Ibid. 2000 OUTCOME Outcome of Disputes Referred to The Industrial Disputes Tribunal Table 3b Outcome of Disputes Referred to the Industrial Disputes Tribunal 2000–2012 2000 TYPES Table 3a Disputes Referred to the Industrial Disputes Tribunal of Jamaica 2000–2012 12 2 2 16 32 2006 11 2 10 0 2006 13 1 3 17 34 2007 15 1 4 0 2007 17 1 3 23 44 2008 7 0 11 5 2008 13 2 3 18 36 2009 13 0 14 1 2009 16 1 5 22 44 2010 6 0 12 6 2010 11 4 5 20 40 2011 5 0 27 4 2011 16 3 11 55 85 2012 2 0 32 4 2012 78 Commonwealth Caribbean Employment and Labour Law Table 4 Individual (Non-Unionised) Disputes Referred since the 2010 Amendment to LRIDA Year Total number of cases referred Number of individual cases 2011 2012 2013 (as at September) 36 38 44 12 24 25 non-unionised cases being referred since the amendment. This is no doubt due to the fact that unionisation has decreased dramatically596 and that individual unrepresented workers are becoming more aware of the arguably better remedies offered through the tribunal vis-à-vis conventional court proceedings, and are concurrently more prepared to pursue them. Another advantage of utilising the tribunal is the relative ease of access once the matter is unresolved at conciliation, the shorter timeframe for disposal of cases and lower cost. The trend appears to suggest that such disputes are therefore set to outstrip the number of collective disputes cases that are being referred to the IDT. Notwithstanding the positive feedback received by the tribunal in discharging its functions, there may still be lingering perceptions, by either or both disputing parties, that the tribunal is not truly balanced in its rulings. It is submitted that, to neutralise these views, an autonomous structure should be established to deal with its administration. Indeed, such a setup was also alluded to by the Eaton Report. 597 This could assist in creating the reality that the IDT is an independent body free from government interference, creditably fulfilling its role of maintaining harmony in Jamaican employment and labour relations. Industrial Relations Tribunal (Dominica) The Industrial Relations Board (IRB) is the parent of the Industrial Relations Tribunal (IRT) created by the Industrial Relations Act.598 The legislation mandates the establishment of the IRB to consist of not more than 13 members appointed by the Minister with the following composition: four to be nominated by the registered trade unions to constitute the Employees’ Panel, an equal number nominated by the employers’ federation to constitute the Employers’ Panel and four to be jointly nominated by both organisations to constitute the Chairman’s Panel.599 The Minister may also appoint a full-time Chairman, a person having knowledge and experience of industrial relations law or administration, from the complement of the IRB to undertake administrative or other functions as the Minister may determine.600 When a trade dispute is referred to the Minister and he has failed to settle it through conciliation or otherwise, or a direct complaint has been made to the tribunal,601 he may select one person from each panel of the IRB,602 which 596 Although there are currently no reliable statistics to indicate the level of unionisation in the workforce, it is clear that it is a far cry from its ascendency in the early 1980s when it was estimated as being at 43 per cent - see Manley, M. (1991) A Voice at the Workplace, Washington, DC: Howard University Press, p. 244. 597 Eaton, G. (1996) Interim Report of Committee on Labour Market Reform, (Government of Jamaica), p. 101; such a move is also advocated by Taylor, O. and Lennox, A. (2003) ‘The Jamaican Industrial Disputes Tribunal (IDT) in the 1990s and Beyond: Is there a Bias?’, 5 Caribbean Journal of Public Sector Management 24-41, p. 39. 598 Industrial Relations Act (Act 35 of 1975) repealed and replaced by Act 18 of 1986 bearing the same name. 599 Section 4 (2) – only residents of Dominica are eligible for nomination. 600 Section 5 (1) – upon consultation with the employer and employee representatives. 601 For example, for breach of the Labour Standards Act 1977 (s 30). 602 Section 6 (2) (a) – an employee of the government cannot be chairman as it will render the constitution of the tribunal fatally tainted thereby voiding its decision – Waterfront and Allied Workers Union v Dominica Port Authority Dominica High Court No 104 of 2004 (unreported) delivered November 26, 2007. Chapter 2: Sources and Institutions of Employment and Labour Law 79 will then be deemed to be the IRT,603 to hear and determine the matter by majority decisions.604 The members are appointed for a minimum three-year term which is renewable605and for the award or decision to have legality the member must have a valid appointment.606 The tribunal has exclusive jurisdiction to address issues arising from the application of various statutes having implications for employment and labour law;607 its decisions are conclusive and binding.608 All the hallmarks of industrial tribunals are applicable to the IRT as it has the powers inter alia to order cost in exceptional cases,609 summon witnesses, join parties to action, examine records and amend or permit amendment of documents.610 It may order reinstatement or compensation not exceeding equivalent remuneration that would have been paid, or otherwise order payments when reinstatement is not considered appropriate,611 and the orders may have retroactive effect within specified guidelines.612 Importantly it is empowered to decide questions as to whether a person is an employee, employer or managerial employee, appropriate bargaining units, operations of industrial agreements and trade union representation.613 The tribunal can formulate its own rules and procedures,614 and may review, rescind, amend, alter or vary its decisions, or rehear any matter when it becomes seized of new information previously unavailable.615 It is enjoined to proceed to dispose of matters ‘with utmost dispatch’ and deliver decisions as soon as possible,616 but this does not provide them with a justification for dismissing a matter because in their view the administrative mechanism did not act with alacrity in disposing of a matter. Thus in Ambo et al. v West Indies Aggregates Limited617 the High Court ordered the IRT to convene a new hearing618 stating that ‘the tribunal had no power under the Act in the circumstances to refuse to conduct this hearing even if it were faced with administrative or evidential difficulties’. Another important feature of the IRT’s operations is that its decisions cannot be subject to prohibition, mandamus, or injunction in any court nor shall they be questioned, challenged, appealed, reviewed or questioned except by appeal for lack of jurisdiction, exceeding the same, or if it is obtained by fraud or is erroneous in law.619 In essence this provision puts the tribunal in the jurisdiction of the High Court for any review of its decisions but only by a specific methodology. This is illustrated in Re Nassief and Company Limited620 when the aggrieved worker sought judicial review to quash the tribunal’s decision via certiorari. Adams J was moved to state upon examination of the Act that ‘it seems to me that in taking away certiorari the legislature nonetheless through the procedure of an appeal sought to provide a cure for the ills attended to by certiorari’. 603 Section 6 (5). 604 Section 13. 605 Section 4 (4). 606 See Waterfront and Allied Workers Union v Dominica Stevedores Limited High Court No 4 of 1997 (unreported) delivered May 8, 1997 [DM 1997 HC 18]. 607 Section 37 Protection of Employment Act 1977. 608 Sections 16 and 11 (4). 609 Section 9 (1). 610 Section 9 (2) (a) (c) (i). 611 Section 38. 612 Section 14 (4) and (5). 613 Section 9 (2) (k). 614 Section 8. 615 Section 14 (1) and (2). 616 Section 12 (2). 617 Dominica High Court No 141 of 2002 (unreported) delivered December 17, 2004. 618 Section 15 (3). 619 Section 15 (1) and (2), see E Nassief & Company Ltd v Casimir Dominica High Court No. 450 of 1991 (unreported) delivered March 10, 1997 [DM 1997 HC 2]. 620 Dominica High Court No 15 of 1990 (unreported) delivered April 18, 1990 [DM 1991 HC 9]. 80 Commonwealth Caribbean Employment and Labour Law GOVERNMENT ADMINISTRATIVE INSTITUTIONS In this section we review a number of institutions which perform various functions within the employment and labour law field. These run the gamut of government-directed Ministries and Departments and Labour Commissioners, to semi-autonomous hearing officers, decisional officers and other essentially independent bodies that address specific issues such as union recognition and registration. Notwithstanding their various roles, all these institutions are generally funded by the public purse. Ministries of Labour and Labour Commissioners621 As envisioned by the Moyne Commission government ministries and departments occupy a vital role in the administration of employment and labour law throughout the Commonwealth Caribbean. The ILO also acknowledges this by virtue of the provisions in its Labour Administration Convention No. 150 (1978)622 and the corresponding Recommendation No. 158. They oversee the application and operations of much of the legislation on the books and act as the fulcrum around which the tripartite mechanisms revolve. In this regard Ministries and Labour Commissioners, dependent on the jurisdiction, basically fulfil the same role. From an employment law perspective, individual complaints for breaches of the employment protection statutes are usually first countenanced by a specific unit or department that, dependent on the nature of the concern, may have at its disposal distinct powers to address the issues. These include authority to inspect records, workplaces and, in some instances, institute criminal prosecution for legislative infractions. However, based on the ethos of voluntarism which was preeminent in early industrial relations practice, a non-adversarial approach is often taken to resolve issues with the criminal process being a means of last resort. In the labour law sphere, the Ministries play a critical role in the provision of conciliation and mediation services consequent on the legislative framework in place to settle and determine industrial disputes. It is imperative that the functionaries who provide these services are well trained and inspire the confidence of those whom they serve as otherwise the viability of the system could become compromised. In most countries the use of conciliation is voluntary, with the exception being the Bahamas623 where failure to attend meetings called by the Minister to further dispute resolution constitutes a criminal offence. Antigua operates a somewhat complex system with tiered responses based on the nature of the disputes. Thus, as noted by Byron CJ (Ag) in Universal Caribbean Establishment v Harrison,624 the ‘Antiguan Labour Code created a new comprehensive machinery for dispute resolution which involved a network including the Minister, the Labour Commissioner decisional officers, an arbitration tribunal, a national Labour Board, hearing officers and the Board of Review’. Arguably, however, the verdict in this case, which enabled individuals to have direct access to the Industrial Court, has undermined the administrative mechanisms instituted by the Labour Code whereby voluntary conciliation 621 See generally Goolsarran, S. (2005) Labour Administration Services in the Caribbean: A Guide (2nd Ed.), ILO Sub-regional Office for the Caribbean, Port of Spain, Trinidad. 622 Ratified by Trinidad and Tobago, Jamaica, Guyana, Dominica, and Antigua and Barbuda, the Convention and Recommendation define the term ‘labour administration’ to mean public administration activities in the field of national labour policy, and note that it covers all public administration bodies responsible for and/or engaging in labour administration, whether they are ministerial departments of public agencies or any other form of decentralised administration and any institutional framework for the coordination of the activities of such bodies and for consultation with the participation by employers and workers and their organisations. 623 Section 70 IRA. 624 (1997) 56 WIR 243. Chapter 2: Sources and Institutions of Employment and Labour Law 81 and non-binding arbitration were made available to trade disputants. Indeed the learned CJ (Ag) opined that the ‘industrial court has been exercising jurisdiction in labour and employment disputes and in particular in cases of unfair dismissal … [and] this procedure completely supplants the network set up by the Labour Code’.625 Hearing officers626 The services of designated ‘hearing officers’ (appointed by the appropriate government functionary) are utilised in Antigua and Barbuda, St. Kitts and Nevis as well as St. Vincent and the Grenadines for the purposes of administratively determining industrial disputes. Typically, these officers’ functions are engaged after unsuccessful attempts at conciliation at the Ministry/ Labour department level. They hear evidence from the parties and prepare a report with recommendations toward resolving the dispute for the Minister. If the parties agree to the formula for settlement then it is endorsed by them and the role of the officer ceases. Decisional officers627 In Antigua and Barbuda the term ‘decisional officer’ is used in relation to officers empowered by appointment to hear and determine certain matters in an independent manner. A decisional officer may encompass the code arbitrators, hearing officers and members of the Labour Board when it acts as a review panel. Union recognition mechanisms It is a known and somewhat accepted fact that one of the major reasons underpinning many industrial disputes is the refusal of employers to recognise trade unions as workers’ representatives in particular undertakings.628 In the Commonwealth Caribbean the traditional methodology utilised for achieving this acceptance was in line with the voluntaristic ethos of industrial relations practice and procedure that relied heavily on the good graces and paternal attitude of the employer to accord recognition without the need for governmental intervention. Based on the historically militant behaviour of trade unions in the region, some employers were, and to some extent remain, reluctant to willingly treat with these entities as they have at times been considered unreasonable in their demands and, at the extreme, unethical in some of their behaviour and practices.629 It is therefore understandable that employers would easily take a decision to ignore a union’s claim for acknowledgment, even in the face of being the employee’s obvious choice for representation where the law does not provide a compulsion to do so. Indeed in the case of Banton v Alcoa Minerals of Jamaica630 (prior to the passage of the LRIDA) it was held 625 Ibid. p. 243. 626 See general discussion in Goolsarran, S. (2005) Caribbean Labour Relations Systems: An Overview (2nd Ed.), ILO Sub-regional Office for the Caribbean, Port of Spain, Trinidad, p. 10. 627 Ibid. 628 See Henry, Z. (1972) Labour Relations and Industrial Conflict in Commonwealth Caribbean Countries (1st Ed.), Trinidad: Columbus Publishers, p. 95 et seq. and Okpaluba, C. (1975) ‘Recognition of Trade Unions’ pp. 21-34 in Okpaluba, C. Essays on Law and Trade Unionism in the Caribbean, Trinidad: Key Caribbean Publications. 629 See Nurse, L. (1992) Trade Unionism and Industrial Relations in the Commonwealth Caribbean, (1st Ed.), Westport, CT: Greenwood Press, Ch. 2, p. 16 et seq.; Alexander, R. J. and Parker, E. (2004) A History of Organized Labor in the English Speaking West Indies, Santa Barbara, CA: Praeger Publishers, p. 18. 630 (1971) 17 WIR 275; see also Attorney General v Mohamed Alli and Others (1987) 41 WIR 176. 82 Commonwealth Caribbean Employment and Labour Law that ‘there is no duty cast on an employer to recognise and treat with the union of an employee’s choice’.631 The existence of this somewhat unhealthy position undermined the entire principle of collective bargaining, since being recognised is a condition precedent to the initiation of negotiations geared towards concluding collective labour agreements632 and the representation of workers’ interests in grievance and disciplinary proceedings.633 It was therefore unsurprising that governments within the Commonwealth Caribbean implemented various systems (both administrative and legislative) to facilitate recognition of unions in an effort to curtail instances where such disputes could lead to costly industrial action. Entities seeking accreditation must meet certain minimum criteria,634 which usually include becoming registered under the requisite statute, usually the Trade Union Act, determining the appropriateness of bargaining units and verifying the status of workers’ membership within the union.635 Of importance will be the configuration of the recognition afforded, especially where more than one union vies for acceptance.636 Once recognised, employers are usually enjoined to negotiate in good faith with the union on pain of criminal sanction.637 Good faith is, however, a matter of fact determinable by the adjudicatory mechanism in each jurisdiction taking account of accepted industrial relations practices.638 In addressing the sometimes challenging recognition issue, Commonwealth Caribbean governments have adopted various modalities.639 At one end of the spectrum, some have legislated the establishment of independent tripartite bodies that are tasked with the responsibility of granting recognition and certification to qualified/registered unions or other worker representative groupings. This is the case in Trinidad and Tobago,640 Belize641 and Guyana.642 At the other extreme some government officials are empowered to unilaterally make this determination. In Antigua and Barbuda643 and St. Lucia644 Labour Commissioners are appointed for this purpose. It is also to be noted that in the Bahamas645 and Grenada646 an application for recognition is made directly to the Minister of Labour, who singlehandedly may make the decision after examination of the required information or after the taking of a secret ballot. At the midpoint some jurisdictions continue to utilise the voluntary modality, with unions approaching 631 Ibid. p. 276. 632 See Collymore and Another v The Attorney-General (1969) 15 WIR 229 at p. 234, where Lord Donovan stated ‘Recognition by employer must be obtained as a prelude to collective bargaining’. 633 See Okpaluba, C. (1975) ‘Recognition of Trade Unions’ pp. 21-34 at 22 in Okpaluba, C. Essays on Law and Trade Unionism in the Caribbean, Trinidad: Key Caribbean Publications. 634 See generally Mahabir, D. (1974) ‘Union Recognition Procedures and Practices in Commonwealth Caribbean Countries’, Volume 1 No. 2 Caribbean Issues–Journal of Caribbean Affairs, p. 8. 635 Ibid. p. 16. 636 Whether joint union recognition is contemplated or majority recognition only. 637 For example, Jamaica Labour Relations and Industrial Disputes Act, s 5 (8), maximum fine of $500,000; Bahamas Industrial Relations Act, s 41 (3), maximum fine of $5,000; Trinidad and Tobago Industrial Relations Act, s 40 (2), creates an industrial relations offence with maximum fine of $4,000. 638 Bank and General Workers Union v Works Credit Union Cooperative Society Limited TT IC IRO No. 16 of 2000. 639 See the discussions on the main approaches existing in the 1970s - the Certification System, Compulsory Recognition and the Voluntary System - Okpaluba, C. (1975) ‘Recognition of Trade Unions’ pp. 21-34 at 24 in Okpaluba, C. Essays on Law and Trade Unionism in the Caribbean, Trinidad: Key Caribbean Publications. 640 Industrial Relations Act, s 21, creates the Registration, Recognition and Certification Board and its role, functions and powers are set out in Parts II and III of the Act. 641 Trade Union and Employer Representation Organisation (Recognition, Registration and Status) Act, s 22, creates the Tripartite Body whose role and functions are set out in Part V of the Act. 642 Trade Union Recognition Act, s 4, creates the Trade Union Recognition and Certification Board and its role and functions are set out in Parts II and III of the Act. 643 Antigua Labour Code, Division H. 644 St. Lucia Labour Code, Part VII Division 2. 645 Industrial Relations Act, ss 42 and 43; see also Osadebay, E. (2005) Labour Law in the Bahamas (An Outline) (2nd Ed.), The Nassau Guardian, pp. 25-36. 646 Labour Relations Act, Part VI. Chapter 2: Sources and Institutions of Employment and Labour Law 83 employers directly to seek acceptance as a bargaining agent. However, the unions still have recourse to an appropriate government functionary (usually the Ministry of Labour or the Labour Commissioner) who may be asked to assist in the process and who is empowered to conduct enquiries into the claim for recognition if the parties cannot amicably agree. A representational rights poll is then administered to decide the matter as is the case in Jamaica647 and Dominica.648 In Jamaica the process requires that certain pertinent information be provided by the employer to determine whether or not a poll should even be utilised by establishing a ‘prima facie case’649 and a refusal by the employer to produce such requested information is a criminal offence.650 Barbados651 remains the only country that operates a fully voluntary system since there are no legislative provisions enacted to guide the union recognition process. However, the Labour Department is available to assist the parties in resolving the issue by an accepted practice of worker surveys and information gathering. If there is no agreement or the employer refuses to recognise the union the only real option available to the workers is industrial action,652 although in practice it appears that the majority of employers have tended to respect the customs and practice that regulate these matters.653 We will explore the workings of the Trinidadian recognition machinery which provides a pragmatic angle to the resolution of this sometimes problematic issue. Trinidad and Tobago Registration, Recognition and Certification Board A sophisticated recognition regime exists in Trinidad and Tobago where, prior to the establishment of the Registration, Recognition and Certification Board (RRCB), the responsibility for according recognition was vested in the Minister of Labour.654 In cases where that decision was disputed the matter was referred to the Industrial Court for settlement.655 The impartiality of the Minister was often questioned,656 precipitating several references to the Industrial Court, which contributed in no small measure to the backlog of cases in that forum in its early years of existence. This fact was a compelling reason for the creation of the RRCB which operates independent of governmental interference. The board comprises nine members: an independent Chairman selected by President of Trinidad and Tobago after consultation with worker and employer representatives, three members nominated by worker and employer representatives and two others nominated jointly by worker and employer representatives.657 Each member’s term of office is initially for five years and they are eligible for reappointment, but may be removed by the Minister upon the request of the nominating bodies.658 The board’s 647 Labour Relations and Industrial Disputes Act, s 4A, 5 and Regulations. 648 Industrial Relations Act, Part IV. 649 Labour Relations and Industrial Disputes Regulations, Regulation 4. 650 Labour Relations and Industrial Disputes Regulations, Regulation 6; see R v Marksman Ltd and Valerie Juggan Brown RMCA No 11/06 (unreported) delivered December 18, 2006 (CA) Jamaica. 651 There is no legislation that governs recognition procedures but it operates under accepted custom and practice which is guided by the Labour Department; see http://labour.gov.bb/trade-union-recognition. 652 See Alexis, F. (1982) ‘The Labour Movement and the Law in Barbados’ pp. 23-26 in Alexis, F., Menon, P.K. and White, D. (Eds) Commonwealth Caribbean Legal Essays, UWI Law Faculty, Barbados: Cave Hill. 653 See discussion in Felix, V. (2004) The System of Dispute Resolution in Barbados’ Industrial Relations, available online at: www.oas.org/ddse/english/documentos/felix.doc (last accessed 16 April 2013). 654 Industrial Stabilisation Act 1965, s 3 (2); see also the Board’s website online at rrcbtt.com/about/about.htm (last accessed 10 April 2013). 655 Industrial Stabilisation Act 1965, s 3 (7). 656 See Khan, A. (2006) The Law of Labour and Employment Disputes in Trinidad and Tobago, Derwent Press, Ch. 3, p. 139. 657 Section 21 (3); the makeup and operations of the institutions in Guyana and Belize are comparatively similar to their Trinidadian counterpart. 658 Section 22 (1) and (8). 84 Commonwealth Caribbean Employment and Labour Law members are remunerated by the State, its administrative requirements are addressed by a Secretary and other appointed public officers659 and its decisions are made by majority vote.660 The main duties of the board are delineated in Section 23 (1) of the Act. It determines all applications, petitions and matters concerning certification of recognition, including the taking of preferential ballots, the certification of recognised majority unions and the recording of the same in the stipulated register, the cancellation of recognition certification and such other matters as are referred or assigned to it by the Minister responsible for labour.661 A union seeking certification must make a written application in the prescribed manner and serve a copy on the employer and the Minister662 whereupon the board is mandated to determine the appropriateness of the bargaining units being claimed after considering prescribed factors.663 Having decided on the appropriateness of the bargaining unit, certification of the union is also contingent upon the board being satisfied that more than 50 per cent of its membership is in good standing,664 based on specific guidelines665 and the union’s rules666. The board is empowered to certify only one union as being the recognised majority union667 and, if it appears that two unions have more than 50 per cent membership in the appropriate bargaining unit, a poll will be conducted to determine the union with the greatest support.668 It will then issue a certificate of recognition that is valid for two years;669 it should be recorded670 in the prescribed manner and it serves as conclusive proof of such recognition in any legal forum.671 Certification allows the immediate replacement of any incumbent by the new union in relation to existing collective agreements or the negotiation of the same.672 To assist in the financial administration and viability of unions the RRCB is also empowered to make agency shop orders allowing for prescribed monetary contributions by workers to be made payable to the unions.673 The RRCB’s decisions regarding the appropriateness of bargaining units and recognition of majority unions are final for all purposes.674 However, it may vary its decision in this regard upon the application of the recognised majority union or the employer.675 The workers themselves may also apply to vary the bargaining unit, either by seeking to become excluded or 659 Section 22 (2). 660 Section 23 (5). 661 For example, s 2 (3) (e) gives the board authority to exclude from the definition of ‘worker’ persons who control the business and who are involved in formulating its policies – ‘arms of management principle’. 662 Section 32 (2) and (3), see also Trinidad Footwear Limited and Transport and Industrial Workers Union Complaint No. 8 of 1974 dated July 22, 1974 (quoted in Khan 2006, p. 150). 663 Section 33 (1) – the community of interest between the workers and the proposed bargaining unit including work location methods and periodicity of payments, the nature and scope of workers’ duties, views of the employer and trade unions, historical development of collective bargaining in the business and any other matter the board deems fit. 664 Section 34 (1). 665 Section 34 (3) – the union has followed sound accounting practices, the worker has become a member after paying entrance fees and has made continuous contributions for a period of eight weeks prior to application for recognition or has, for a period of not less than two years continuously, made contributions to the union, that the union’s funds have not been used to pay a worker’s entrance fee or contributions. 666 See Trinidad Cement Limited v Oilfields Workers’ Trade Union TD 71 of 1967 delivered February 20, 1968 (unreported), where the court held that the union’s rules did not allow them to report a dispute in relation to workers who were not covered by its membership requirements. 667 Section 36 (1). 668 Sections 34 (2) and 23 (1). 669 Section 37 (1). 670 Section 41 (1), see also Agricultural Development Bank v Public Services Association Civil Appeal No 118/80 delivered December 4, 1985 where the court held that the requirement is purely procedural thus recognition once established remains conclusive. 671 Section 41 (2). 672 Section 35. 673 Section 72. 674 Section 32 (4). 675 Section 39 (2) (a) and (b). Chapter 2: Sources and Institutions of Employment and Labour Law 85 included on the basis of appropriateness.676 However, such a request will not be countenanced unless the board is satisfied that not less than 1/20th of the bargaining unit’s members agree in writing.677 Having considered the application in accordance with the prescribed criteria the board will record the change in like manner to an original recognition. If the RRCB thinks it appropriate it may either, upon the petition of a party or on its own initiative, state a case678 seeking the opinion of the Industrial Court in relation to any point of law, or the application and interpretation of the Act’s provisions. The court’s decision is conclusive and this mechanism proves particularly helpful to the board in addressing thorny issues of fact and law that it cannot itself determine when adjudicating claims but that are required to fulfil its function. Notwithstanding any assistance provided by the Industrial Court, the RRCB is the sole authority for interpreting and applying the Act’s provisions regarding its functions and responsibilities.679 Its decisions, orders, directions, rulings or other determinations cannot be challenged, appealed against, reviewed, quashed or called into account by any court whether by injunction, declaratory judgement or judicial review proceedings so as to restrain or inhibit the board in its proceedings and functions.680 The powers and protections accorded to the board have been a fertile source of legal challenge, particularly the provisions of Section 2 (3) (e)681 of the IRA that empowers the board to designate who are managerial employees. A positive finding in this regard consequently removes such persons from the ambit of the Act’s operations. The issue was frontally examined in the case of Attorney General of Trinidad and Tobago v Adams et al. and Trinidad and Tobago Postmen’s Union682when the board’s decision to issue a certificate of recognition to the Postmen’s Union was challenged on the premise that its members were not ‘workers’ within the meaning of the statute and therefore the exercise of its powers were null and void. Ibrahim J in his judgement opined that the Industrial Court lacked jurisdiction to review the board’s decision since Section 23 (6) of the Industrial Relations Act provided a complete ouster clause, thereby nullifying the High Court’s inherent powers of review.683 He further stated that: ‘… not only is there no right of appeal from the Board’s decision but the Board is made the sole authority to expound upon any matter touching the interpretation and application of the Act relating to the functions and responsibilities with which the Board is charged by the Act’. However this decision ought not to be taken to mean that the board will always be protected from challenge in the exercise of its functions. The Trinidad and Tobago Court of Appeal ruled in the case of Aviation Communication and Allied Union v RRCB684 that the decision of the board may be impugned if it acted ultra vires. There Ibrahim J opined: Once … it is a matter that falls within the functions and responsibilities of the Board then the Board can interpret and apply the Act in any way it thinks fit in relation to those functions and responsibilities. It may do so correctly or incorrectly and, if correctly, it is immune from being put right by any Court. If, however, the error made does affect the jurisdiction of the Board then it may be put right, as, for example, if it seeks to deal with a matter outside of its functions and responsibilities … if it violates the rules of natural justice … or if one of its members has a real interest in the matter before it. 676 Section 39 (2) (c) and (d). 677 Section 39 (3), see also the case of Aviation Communication and Allied Workers Union v Registration, Recognition and Certification Board TT Court of Appeal Civil Appeal No. 35 of 1995 (unreported) delivered October 13, 1998. 678 Section 31. 679 Section 23 (7). 680 Section 23 (6). 681 See Caroni (1975) Limited v Association of Technical Administrative and Supervisory Staff (2002) 67 WIR 223. 682 TT High Court Suit No. 1916 of 1983 (unreported) delivered July 10, 1984. 683 See the case of Anisminic Ltd. v Foreign Compensation Commission and another [1969] 1 All ER 208. 684 TT Civil Appeal No. 35 of 1995 (unreported) delivered October 13, 1998. 86 Commonwealth Caribbean Employment and Labour Law The courts have therefore decided that the board’s remit is limited to the specific provisions of the Act and the manner in which the said provisions were referred to it. Thus in the case of Republic Bank Limited v RRCB685 the High Court held that the RRCB was estopped from acting on a reference from the Minister of Labour to rule on whether two apparent managerial staff were ‘workers’, which, although technically within the board’s jurisdiction to determine, was not in effect the gravamen of the matter at hand. In other words it could not utilise a related and otherwise legal power in an unauthorised way to further a case that was incorrectly referred for determination. In Bristow Caribbean Limited v RRCB686 the board was also chided for exercising ‘discretion’ and in so doing acting ultra vires in allowing an application for recognition where the provisions of the Act were not fulfilled. Its argument was the length of time surrounding the application and that the tenets of good industrial relations practice demanded that the deficit of one worker who was one day short of being a union member in good standing should not act as a bar to recognition. The High Court, in finding the board lacked jurisdiction, opined that the ouster clause did not provide protection for its turning of a ‘blind eye’ to the legal obligations in the name of ‘good industrial relations’ and that they exceeded their jurisdiction. The establishment of independent tripartite bodies to statutorily certify recognised unions had been advocated since the introduction of the so-called ‘Trinidad Experiment’ under the Industrial Relations Act in 1972.687 It is thought that removing the function from the realm of outright government control or even benign regulation would improve the systems surrounding this important limb of labour administration. By utilising a tripartite composition it, at least theoretically, removes the spectre of bias in its decisions. Such was the recommendation of the ILO Model Harmonisation Act Regarding Registration, Status and Recognition of Trade Unions and Employers’ Organisations that, in great degree, mirrors the Trinidad provisions. So far only Belize688 and Guyana689 have adopted this prototype, with varying degrees of success. Arguably the continued utilisation of either totally voluntary or government assisted schemes by the other States underscores the near total subscription to the view that recognition ought not to be imposed but rather, as far as possible, be agreed by the parties. Where this is not achieved the intervention of the state should only be to ensure a transparent system of polling is utilised to resolve the issue in the interest of industrial peace. Trade union registration bodies The registration of trade unions has been a requirement of legislation since the establishment of the first Trade Union Act in Jamaica in 1919. To accomplish this requirement, some countries have utilised the services of their Labour Commissioners or other administrative personnel within the Ministry of Labour.690 Others have opted to use other public officers in this regard.691 Whatever the methodology utilised, a major concern surrounds the legal status of 685 TT High Court Suit No. 897 of 1993 (unreported) delivered November 8, 1994. 686 TT High Court Suit No. 1537 of 2000 (unreported) delivered February 1, 2001. 687 See Mahabir D. (1974) ‘Union Recognition Procedures and Practices in the Commonwealth Caribbean Countries’ Caribbean Issues Volume I No 2 p. 21; Henry, Z. (1972) Labour Relations and Industrial Conflict in Caribbean Countries (1st Ed.) Trinidad: Columbus Publishers, p. 233 et seq.; Okpaluba, C. (1975) ‘Recognition of Trade Unions’ p. 32 in Okpaluba, C. Essays on Law and Trade Unionism in the Caribbean, Trinidad: Key Caribbean Publications. 688 Trade Unions and Employers’ Organisations (Registration, Recognition and Status) Act of 2000. 689 Trade Union Recognition Act 1997. 690 Antigua Labour Code Division H; Bahamas Industrial Relations Act Part II – Registrar of Trade Unions. 691 Jamaica Trade Union Act s 17 – The Registrar General. Chapter 2: Sources and Institutions of Employment and Labour Law 87 trade unions, as registration only provides quasi-legal status.692 The ILO Model Harmonisation Act Regarding Registration, Status and Recognition of Trade Unions and Employers’ Organisations simplifies the position by categorically providing that registered trade unions are bodies corporate with the attendant legal benefits that accrue to such entities. So far only Belize693 has utilised the template in enacting indigenous legislation. Although it is understandable that other Commonwealth Caribbean states may be hesitant to disturb settled and accepted industrial relations systems that have been painstakingly developed and continue to operate relatively well, the issue should also be examined in light of the continuing growth of the CSME where conflicts are likely to arise in the application of laws among businesses across states. We agree with Downes, Mamingi and Antoine that ‘… The differences in the institutional frameworks within the region have emerged from the culture of trade unionism and the need to maintain labour and economic stability in order to propel economic development’.694 Nevertheless, the necessity for the strong administrative framework is paramount if the employment and labour law system is to not only meet its mandate but also surpass it to create a mechanism capable of assisting in the further upward development of the labour markets in the Commonwealth Caribbean. In this regard Martínez and Tokman indicate that the administrative structure now faces the twofold challenge of the need to implement reform to address the challenges of globalisation, while also balancing the demands for worker protection especially in informal types of employment.695 They posit that these issues can be addressed by modernising the operations of labour ministries and departments, and strategically positioning their operations within government, the county’s economic framework and the society at large.696 ILO SUB-REGIONAL OFFICE FOR THE CARIBBEAN As indicated earlier, all Commonwealth Caribbean countries are members of the ILO thereby triggering certain rights and obligations. In furtherance of its mandate to promote rights at work, encourage decent employment opportunities, enhance social protection and strengthen social dialogue the ILO created the Caribbean Office in 1969. Its operations are headquartered in Trinidad and Tobago and it serves all members of CARICOM and some associate members.697 This office engages the tripartite partners in the member States to promote decent work for all, particularly through technical assistance, training and cooperative efforts. The concept of decent work is built on four strategic pillars: the promotion of rights at work, employment opportunities, social protection and social dialogue. The Decent Work Agenda supports integrated development strategies that link rights at work and social dialogue with employment policies and social protection.698 The region continues to gain commendable benefits from the ILO’s assistance, as exemplified by the draft of model laws on various employment and labour issues as well as various publications, which augurs well for the continued development of the field. 692 Chaudhary, R. (1976) ‘Trade unions in Commonwealth Caribbean countries: their development and legal status’, Lawyer of the Americas Vol. 8, No. 3, pp. 762-778. 693 Trade Unions and Employers’ Organisations (Registration, Recognition and Status) Act of 2000 s 16 (1). 694 Downes, A. S. et al. (2004) ‘Labour Market Regulation and Employment in the Caribbean’ pp. 517–552 at 520 in Heckman, J. and Pagés, C. (Eds) Law and Employment Lessons from Latin America and the Caribbean, Chicago, Il.: University of Chicago Press. 695 See Martínez, D. and Tokman, V. E. (1999) Labour Administration and the Modernization of Labour Ministries, ILO Sub Regional Office for the Caribbean publication, p. 29. 696 Ibid. p. 31. 697 Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, Anguilla, Aruba, Bermuda, British Virgin Islands, Cayman Islands, Curacao, Montserrat, Saint Maarten, Turks and Caicos Islands. 698 More information is available at www.ilocarib.org.tt. CHAPTER 3 CONTRACTS OF EMPLOYMENT PARTIES TO THE CONTRACT OF EMPLOYMENT An employment relationship is established when an employer and an employee enter into a contract of service. The definitions of ‘employee’ and ‘employer’ and the contractual tenets that define the scope of their relationship must be examined as separate issues. In the Commonwealth Caribbean, the use of legislation to provide appropriate explanations of who is an employee is pervasive. However, much reliance on case law has been necessary to establish whether the individual relationship is one of ‘contract of service’ or ‘contract for services’; the latter being characteristic of a relationship between an employer and an independent contractor, while the former is indicative of the classic employer/employee relationship. We will first examine the statutory provisions in this regard before turning our attention to the common law context, considering how the intersection of the two arenas impacts a determination of employment status. Who is an employee or worker? Statutory provisions defining who is an ‘employee’ or ‘worker’ are not standard throughout the Commonwealth Caribbean or even within each jurisdiction. Rather unhelpfully, both terms are often used interchangeably, purporting to encompass similar persons, with the purpose for which the law was made being the deciding factor in examining how each term is utilized.1 This is to be contrasted with the position in the UK, where the term ‘employee’ is used to cover persons in the classic employment relationship who are usually the recipient of more beneficial statutory protections such as unfair dismissal and redundancy. On the other hand, in that jurisdiction, the term ‘worker’ is a more expansive term covering certain persons working in non-standard employment relationships and affording access to a limited range of these statutory benefits such as holidays with pay.2 The Labour Relations Act of Grenada3 provides that: ‘“employee” means a person who has entered into or works under a contract of employment with an employer, whether such 1 2 3 In Section 2 of the Jamaican Employment (Termination and Redundancy Payments) Act, ‘employee’ is defined as:‘an individual who has entered into or works (or, in the case of a contract which has been terminated, worked) under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, be express or implied, oral or in writing, but does not include- (a) any person employed by the Government; (b) any person employed in the service of the Council of the Kingston and St. Andrew Corporation or in the service of any Parish Council’, whereas the Maternity Leave Act defines ‘worker’ as an individual of the female sex who has entered into, or works under, a contract with an employer, whether the contract is express or implied, and (if it is express) whether it is oral or in writing and whether it is a contract of service or of apprenticeship, and includes any such individual employed in the service of the Government (including service in the Jamaica Defence Force and the Jamaica Constabulary Force). See Section 230(1) of the UK Employment Rights Act, which defines ‘employee’ as ‘an individual who has entered into or works under (or where the employment has ceased, worked under) a contract of employment’, vis-à-vis Section 230(3) relating to ‘worker’ as ‘(except in the phrase “shop worker” or “betting worker”) means an individual who has entered into and works (or where the employment has ceased, worked) under: a contract of employment; or any other contract … whereby the individual undertakes to do or perform personally any work or service for another party [who is not] a client or customer of any profession or business undertaking carried on by the individual’. No 15 of 1999. See s 2. Chapter 3: Contracts of Employment 89 contract be expressed or implied, oral or written;4 the term employee may be used interchangeably with the term “worker” and has the same meaning’. However, the Employment Act from that jurisdiction defines an employee as a person who offers his services under a contract of employment and this includes a dependent contractor and, where appropriate, a former employee.5 The dependent contractor refers to a person who performs work or service for another person for compensation or reward on such terms and conditions that he is in a position of economic dependence on, and under an obligation to perform duties for, that employer and who operates in a relationship that more closely resembles the relationship of employee rather than an independent contractor.6 This relationship is established whether or not the person is employed under a contract of employment. It is clear from this designation that the intention of the legislature was to provide protection to this particular category of workers, who have not only been marginalised but deliberately excluded from the classic benefits reserved for ‘employees’ by virtue of the nature of the contract under which they are engaged.7 The St. Lucia Labour Code8 provides an expansive definition of ‘employee’ to mean any person who offers his or her services under a contract of employment, whether written, oral or implied, including a managerial employee, a dependent contractor, an apprentice, a part-time employee, a casual worker, a homeworker, a temporary worker, a seasonal employee and a person who is remunerated by commission where that person is not an independent contractor and, where appropriate, a former employee. The dependent contractor is cast in similar terms to the Grenadian equivalent. In contrast, the Labour Relations and Industrial Disputes Act of Jamaica adopted the nomenclature ‘worker’9 in deference to ‘employee’.10 Further, in 2002, the definition of ‘worker’ was reformulated, arguably to safeguard against the perceived imbalance of power in the employment relationship and the employee’s inability to negotiate on an even keel.11 The definition now states that ‘worker’ means ‘an individual who has entered into or works or normally works (or where the employment has ceased, worked) under a contract, however described, in circumstances where that individual works under the direction, supervision and control of the employer regarding hours of work, nature of work, management of discipline and such other conditions as are similar to those which apply to an employee’.12 4 5 6 7 8 9 10 11 12 Similar definitions may be found in the Industrial Relations Act of Bahamas 1971. See s 2 (1). Act 14 of 1999, s 2. Ibid. See discussion in Taylor, O. (2001) National Study in Jamaica on the Employment Relationship (Scope) National Studies (ILO publication) where he bemoaned the fact that Jamaican legislation needed to be amended to take account of ‘dependent contractors’ who were being employed in disguised relationships (p. 28). It should be noted that, even though the LRIDA was amended in 2002, it still has not fully taken account of such individuals – see discussion below. See s 2. 1975, Jamaica. See s 2. Deakin suggests that ‘the “worker” concept shifts the boundary between autonomous and independent work, replacing a test of formal contractual commitment (mutuality of obligation) with one based on economic dependence (is the work contract located in a professional context or supported by and independent business?)’. See Deakin, S. (2007) ‘Does the “Personal Employment Contract” provide a basis for the reunification of employment law?’ Industrial Law Journal March, Vol. 36, Issue 1, p. 68 at p. 74. This is mirrored in s 2 of the Industrial Relations Act of Trinidad and Tobago. Note the conclusions advanced by Davies, P. and Freedland, M.(1999-2000) ‘Labor Markets, Welfare and the Personal Scope of Employment Law in “Employed or Self-Employed?”’ 21 Comp.Lab.L & Pol’y J. 231. They assert that the use of the term ‘worker’ in English legislation has potentially broadened the scope of the definition of employee and possibly created a new intermediate category between employee and independent contractor. The only case to fully delve into this new definition was Motor Sales and Service Company Limited v National Workers Union (IDT 1/2004) (unreported) delivered February 22, 2005, where by majority the IDT ruled that certain individuals working at the company who were seeking union representation were ‘workers’ within the meaning of the Act. The tribunal relied on the common law tests of employment in coming to their conclusion – discussed further below. 90 Commonwealth Caribbean Employment and Labour Law This expanded definition is an obvious attempt to codify the Shakespeare reference ‘A rose by any other name is still a rose’.13 It is uncertain whether the inclusion of specific characteristics of the contract of employment has, in fact, erased the need to rely on case law to determine the scope of an individual employment relationship. It has, however, certainly highlighted the primary considerations that should be borne in mind when making the determination. Use of the nomenclature ‘worker’ may also be found in Section 2 of the Industrial Relations Act of Trinidad and Tobago. The provision expands on the Jamaican formulation by explaining that a worker is ‘any person who has entered into or works under a contract with an employer to do any skilled, unskilled, manual, technical, clerical or other work for hire or reward, whether the contract is expressed or implied, oral or in writing, or partly oral and partly in writing, and whether it is a contract of service or apprenticeship or a contract personally to execute any work or labour’.14 In the absence of corresponding definitions of work for hire and a contract personally to execute any work or labour, it may be deduced, having regard to the unified contextual approach to statutory interpretation15 and the language of the section as a whole, that the intention is to refer to situations involving independent contractors. In addition, the genus of persons who shall not be regarded as a worker for the purposes of the Act is prescribed. The exclusion of public officers, members of the Defence Force, teachers, members of the staff of the Central Bank, and persons responsible for formulating policy at the Registration, Recognition and Certification Board, seems appropriate. However, the exclusion of persons employed in any capacity of a domestic nature and apprentices within the meaning of the Industrial Training Act seems unjustifiable – unless it is to be assumed that equal or increased protection for these persons is provided for in other legislative instruments. In respect of domestics, this proved to be a vexatious issue.16 The response of the Parliament of Trinidad and Tobago was to promulgate that both the Minimum Wages Order, Legal Notice No. 40 of 1999, and the Maternity Protection Act, No. 4 of 1998, included domestic workers as employees, guaranteeing them the same rights and benefits as other workers.17 Yet another restriction was the imposition of a requirement for work permits. This is exemplified by the Control of Employment Act 201018 of Anguilla Section 2 which, subject to exemptions, makes it an offence for a person who is not a belonger and does not hold a work permit to: ‘(a) engage in any occupation in Anguilla for profit or reward; or (b) be employed in Anguilla for a wage, salary or other remuneration’.19 This provision is intended to control employment in Anguilla of persons who are not ‘belongers’ (as defined in Section 1) to Anguilla. 13 14 15 16 17 18 19 The original phrase is ‘… a rose by any other name would smell as sweet’ by William Shakespeare in Romeo and Juliet (1600) Act II Scene ii, meaning what matters is the substance of a thing, not what it is called or labelled. Also recently cited by Pilgrim J Pestaina v Dickenson Bay Management Ltd. (Dba Sandals Antigua) Suit No. 9 of 2008 (unreported) delivered March 25, 2010 [AG 2010 IC 4] at paragraph 241. It should be noted that it is the sole purview of the Registration Recognition and Certification Board to the exclusion of the courts to determine who is a worker as defined by statute in Trinidad and Tobago – see Caroni (1975) Ltd. v Association of Technical Administrative & Supervisory Staff (2002) 67 WIR 222. The modern approach to statutory interpretation approved by the House of Lords in Maunsell v Olins [1975] AC 373, devised by Professor Rupert Cross. See Rahim, A. ‘National Labour Law Profile: Trinidad and Tobago’ at www.ilo.org/ifpdial/informationresources/national-labour-law-profiles/WCMS_158855/lang–es/index.htm. In contrast, Barbados has specific legislation to deal with domestics: The Domestic Employees Act. Chapter C105. See discussion regarding the interpretation of the largely similar predecessor 1980 Ordinance in Goldfinger and Cove Castles Development Corporation v Luxemburg [2002] UKPC 60. Chapter 3: Contracts of Employment 91 Who is an employer? It is noteworthy that no elaborate attempt is made by Commonwealth Caribbean legislations to expound on what is meant by ‘employer’. The logical deduction that an ‘employer’ is the person for whom the ‘employee’ works or has worked or normally works or seeks to work, is sometimes stated,20 otherwise, it must be presumed. Arguably, one definition is a natural corollary of the other, and a clear expression of ‘employee’ would therefore suffice. A discordant view is echoed in the CARICOM Model Harmonisation Act Regarding Termination of Employment which states that ‘employer’ ‘means any person or undertaking, corporation, company, public authority or body of persons who or which employs any person under a contract of employment or uses the services of a dependent contractor, commission agent or a contract worker, and includes the heirs, successors and assigns of an employer.’21 It is significant that the use of the terminology ‘employee’ has been abandoned in favour of the synonym ‘contract worker’22 in conjunction with the addition of the terminology ‘dependent contractor’. The result is seemingly the creation of a labour law android capable of being an employee (the human component) and an independent contractor (the robot component) at the same time. A ‘dependent contractor’ is defined as ‘a person, whether or not employed under a contract of employment, who performs work or services for another person for compensation or reward on such terms and conditions that he or she is in relation to that person in a position of economic dependence on, and under an obligation to perform duties for, that person more closely resembling the relationship of employee than that of an independent contractor.’23 Regrettably, this amalgamation of terms has done nothing to demystify the imaginary line between the traditional concepts of employee and independent contractor. Indeed, all that can be gleaned is that the employer and the employee are wedded to each other, by an employment contract containing mandatory minimum standard terms: a privilege denied the independent contractor for obvious reasons.24 Other relationships Labourer and worker The definition of ‘employee’ is distinguishable from ‘labourer’ as defined in some Commonwealth Caribbean jurisdictions. In Trinidad and Tobago, under the Foreign Labour Contracts Act,25 ‘labourer’ as defined includes ‘every person being a citizen of Trinidad & Tobago employed for hire, wages or other remuneration to exercise or perform any handicraft or other bodily labour in agriculture or otherwise, or in or upon mines, manufactures, roads, tunnels, ways, railways, canals or waterworks’.26 Interestingly, the Labour (Conditions of Employment of Certain Workers) Act of Guyana makes a distinction between employee and ‘worker’. Here, the genus 20 21 22 23 24 25 26 s 2 LRIDA of Jamaica 1975; s 2 of the Industrial Relations Act of Trinidad and Tobago; s 2 LRA of Grenada 1999; s 2 of the Employment Act of Bahamas 2001. See s 2. Note the similarity of the wording in s 2 of the Employment Act of Bahamas 2001, save that the reference to ‘dependent contractor’ is omitted. This is defined in s 2 as ‘a person who performs work for another person pursuant to a contract between the employer of the first-mentioned person and that other person’. See s 2. Note the definition of ‘employment contract’ in Section 2 which expressly identifies the parties as employer and employee. See also Section 7 which outlines the contents of the employment contract between the employer and the employee. Chap 88:11. See s 2. 92 Commonwealth Caribbean Employment and Labour Law of ‘worker’ is restricted to a closed category of persons, namely ‘cooks, maids, waiters, bell boys employed in hotels and additionally, to order girl, boy, dishwasher, assistant or cleaner employed in restaurants, cook shops and parlours’.27 It is apparent that none of these modified definitions has gone beyond the general scope of the meaning of employee.28 Rather, they demonstrate an attempt to compartmentalise specific working classes in pursuance of a superior policy objective to stabilise the balance of power in particular industries. Part time, casual and seasonal workers The common denominator among part time, casual and seasonal workers is that the duration of their hours of work is regulated. A part-time worker is usually employed on a temporary basis, with reduced work hours for a specific period. Similarly, a casual worker is usually employed temporarily or on an irregular or intermittent basis. A seasonal worker, on the other hand, is regularly employed each year, but not throughout the year, to perform work which is limited to a certain time or certain times of year because of the seasonal nature of the work involved. So, are these workers ‘employees’ or ‘independent contractors’? The Retrenchment and Severance Benefits Act of Trinidad and Tobago29 defines ‘independent contractor’ as ‘a person who is engaged on the basis of a contractual arrangement to do work over an estimated period of time and whose hours of work are not regulated by contract’.30 It is clear that in the context of this statute, which does define casual and seasonal worker, such workers are employees. However, it cannot be deduced that the ability to control the worker’s hours of work, simpliciter, will provide sufficient proof that the worker is an employee.31 The fundamental issue of the status of the relationship vis-à-vis the employer remains a mixed question of law and fact to be determined by the courts. The fact that there is no express contract of service between the worker and the employer, requires the court, as a matter of law, to consider the possibility that there was an implied contract of service. Office holders Most Commonwealth Caribbean jurisdictions expressly exclude office holders from the definition of employees. Examples of office holders are employees of the Crown32 (including teachers,33 judges,34 civil servants35 and police officers),36 statutory corporations,37 and the military.38 It has become common practice to make special provision for these workers in Public Service 27 28 29 30 31 32 33 34 35 36 37 38 See s 2. See also the definition of ‘out-worker’ in Section 2 the Minimum Wage Act of Trinidad and Tobago which is predicated on work done on premises other than premises under the control of management. The section also provides that ‘worker’ includes ‘out-worker’. Ch. 88:13 at s 2. Ibid. This issue was considered in Carmichael v National Power [1999] 1 WLR 2040 where the term ‘casual as required basis’ was construed as having regard to the wording of the contract, the surrounding circumstance and the conduct of the parties. The same approach was taken in Dacas v Brook Street Bureau [2004] IRLR 358 in respect of a ‘temporary worker agreement’. For examples, see s 3 of the Protection of Employment Act St. Kitts and s 2 (2) of the Labour Contracts Act of Dominica. Mallock v Aberdeen Corp [1971] 1 WLR 1578. Rees v Crane (1994) 43 WIR 444. Toby v AG of Trinidad and Tobago (1973) 27 WIR 266. Thomas v AG [1982] AC 113. For example, see s 2 (3) of the Industrial Relations Act of Trinidad and Tobago. For examples, see s 25 (2) of the Labour Relations and Industrial Disputes Act of Jamaica; s 3 of the Industrial Relations Act of Bahamas; s 3 of the Labour Relations Act of Grenada; s 2 (3) (b) of the Industrial Relations Act of Trinidad and Tobago. Chapter 3: Contracts of Employment 93 Legislation and Staff Orders for the Public Service39 because of the public interest in the work to be carried out by them. THE NATURE OF THE CONTRACT OF EMPLOYMENT No absolute test has yet been distilled or applied by the courts and tribunals to the issue of whether a person is an employee or independent contractor. The response to this polemic is critical as there is no paragium between the two. Legislation is primarily concerned with offering employees protective rights such as protection against unfair dismissal, redundancy compensation, minimum notice upon termination, guaranteed pay, maternity and vacation leave, health and safety; as well as implementing safeguards that militate against unfair practices in the workplace such as discrimination and sexual harassment. In this context, trade unions may be described as complicit pawns in the game of labour relations chess. Their authority to negotiate on behalf of employees has been ratified by legislation in Trade Unions Acts across the region.40 While it is easy to understand the legislature’s preoccupation with the pre-contractual inequality of employee and employer, it is befuddling that independent contractors were left to fend for themselves in the absence of clear codified guidelines of the distinction between a contract of service and a contract for services. Arguably, the Commonwealth Caribbean labour market is characterised by dependent labour, and a failure on the part of legislators in some jurisdictions to provide limitations on the circumstances in which employers may exculpate themselves from liability and responsibility on the premise that their common law powers of direction and control do not apply is a significant lacuna. This is particularly relevant with the advent of the free movement of labour across CARICOM member states.41 What is a contract of service? The relationship between the employer and the employee is based on common law principles of contract. The underlying concept is that the bargain of the contract is attained where the services of the employee are offered on negotiated terms and conditions, and the employer has provided fair consideration for such services. As pointed out by Caribbean scholar Rahim Bacchus, this ‘cornerstone of labour law … did not govern the vast majority of labour relations in the Commonwealth Caribbean until 1838. Prior to 1838, labour was exploited on the basis of a right to property in the slave by the slave owner.’42 He further asserts that the subsequent adoption of English common law rules resulted in a definition of ‘employee’ that presumed the existence of a contract of service but no correlating explanation of the distinction between a contract of service and a contract for services was offered.43 Today, a determination as to whether or not an employment contract/contract of service exists will be made by the courts having regard to the express and implied terms of the 39 40 41 42 43 See for example Public Service Regulations 1962 ( Jamaica), subsidiary legislation to the Constitution; also, Staff Orders are fundamental contractual terms that outline the conditions of employment of public sector workers. Where they are not expressly incorporated they are presumed to apply. For example, see Jamaica Staff Orders for Public Service 2004 and St. Lucia Staff Orders for Public Service 1983. Trade Union Act of Jamaica 1919; Trade Union Act of Trinidad and Tobago 1932; Trade Union Act of Barbados (consolidated 1964). See the Revised Treaty of Chaguramas promulgated in 2001. Bacchus, R. Jnr. (1992) Distinguishing the Contract of Service from the Contract for Services: From Control to Economic Reality, Commonwealth Caribbean Legal Studies: A volume of essays in Commemoration of the 21st Anniversary of the Faculty of Law, the University of the West Indies at p. 287. Ibid. at p. 288. 94 Commonwealth Caribbean Employment and Labour Law contract.44 Reliance may also be had on statutory provisions,45 collective agreements, rules of the organisation, disciplinary codes and the job description of the individual. Several common law tests have emerged over the years, arguably because no one test proved adequate to address all the subtleties that distinguish the many characteristics of the employment relationship. The most important tests are considered below. Several Commonwealth Caribbean jurisdictions have implemented legislative guidelines on how to discern the contract of service or employment. This is achieved by outlining the key components of the employment contract which include the names of the parties entering the contract; the date on which the employment began, is to begin or has expired; the rate of remuneration and when it is to be paid; the terms and conditions relating to hours of work, holidays, payment during illness and pensions; and the terms and conditions relating to notice in order to terminate the contract.46 It is noteworthy that the Employment Act of Bahamas has gone beyond outlining key components to promulgating against discrimination of an employee on the basis of race, creed, sex, marital status, political opinion, age or HIV/Aids.47 While this may be considered an important legislative advance,48 the mischief remains a live issue for independent contractors, arguably resulting in an incentive for employers to opt for a contract for services. The Antiguan legislative scheme provides an innovative approach to this age-old question. The definition of ‘employee’ at Section A5 of the Labour Code of Antigua makes reference to the term ‘contract with an employer’. However, ‘contract’ is not specifically defined so the nature of the contract with the employer remains ambiguous. Accordingly, it is necessary to construe the statute as a whole in order to ascertain whether the legislative intent was to establish a working relationship between the parties as employer and employee. The preferred interpretation is that ‘employment’ means employment under a contract of service. Judicial support for this view was expressed by Pilgrim J in Pestaina v Dickenson Bay Management Ltd. (Dba Sandals Antigua),49 Sir Vincent Floissac CJ in Antigua Village Condo Corporation v Jennifer Watt,50 Byron CJ in Universal Caribbean Establishment v James Harrison51 and LIAT (1974) Limited v Tomlinson.52 Arguably, an opportunity was forgone to explore the flexibility inherent in the legislation. Restricting the interpretation of ‘contract’ to ‘contract of services’ has the effect of perpetuating the exclusion of independent contractors from the pastoral protection the law 44 45 46 47 48 49 50 51 52 See generally Chaudhary, R. and Rodney, H.N. (1980) Contract of Service and the Worker in a Caribbean Jurisdiction (Coles Printery Barbados), where the writers explore the position in Guyana - particularly see chapter 2 pp. 16-28. Some statutes do make reference to a limited definition of ‘contract of employment’ as ‘a contract of service or apprenticeship, whether express or implied, and (if it is express) whether it is oral or in writing’. See s 2 of the Employment Act of Bahamas. Note the examples of Division C of the Labour Code of Antigua; the Employment Act of Bahamas; the Labour Act of Belize; the Labour Contracts Act of Dominica; and the Labour Act of Guyana. See also s 7 of the CARICOM Model Harmonisation Act Regarding Termination of Employment. Act No 27 of 2001, see s 6. This position is reflected in Part I of the CARICOM Model Harmonization Act Regarding Equality of Opportunity and Treatment in Employment and Occupation. Save that no reference is made to HIV Aids or any other disease. Industrial Court Reference No. 9 of 2008 (unreported) delivered March 25, 2010 [AG 2010 IC 4] at paragraph 88, where Pilgrim J espoused that ‘The term “contract of service” is synonymous with the term “contract of employment”’. Civil Appeal No. 6 of 1992, at p. 5 where the Chief Justice incorporates the words ‘contract of employment’ to describe ‘An unfairly dismissed employee…’. Civil Appeal No. 21 of 1993 at p. 19 where Byron CJ stated that it was the employee’s contract of employment that allowed the Industrial Court ‘to determine matters of unfair dismissal brought by an individual employee’. Civil Appeal No.20 of 1990 at p. 7 where Byron CJ opined ‘I think that the legislature intended to be concise in ensuring that the Industrial Court had all the powers, rights, and privileges which would guarantee its ability to be effective in discharging the functions for which it was established’. Chapter 3: Contracts of Employment 95 offers employees.53 The plethora of case law on this issue would tend to indicate that beyond the obvious concern for the employee who is seized of diminished bargaining power, the plight of independent contractors should not go unchecked in a modern industrial climate characterised by contractual divestment of legal responsibility. Another legislative approach to establishing the boundaries of the contract of service or employment has been to promulgate industry specific guidelines. Some examples of this are the Sugar Workers (Minimum Wage and Guaranteed Employment) Act in Barbados; the Labour (Conditions of Employment of Certain Workers) Act of Guyana; the Protection of Employment Act in St. Kitts and the Wages Regulations (Agricultural Workers) in St. Vincent and the Grenadines. This ad hoc approach was also employed where it was felt that there existed a strong public policy interest to be served, for example the Labour Clauses (Public Contracts) Act and the Domestic Employees Act in Barbados; the Employment of Women, Young Persons and Children Act of Dominica; the Employment of Young Persons and Children Act of Guyana; the Women (Employment of) Act in Jamaica.54 What is a contract for services? The relationship between the employer and the independent contractor is also governed by common law principles of contract. Reference to ‘independent’ suggests that the individual does not rely on the employer to carry out his tasks and ‘contractor’ implies that the job in question is for a specified period rather than an on-going assignment with no prescribed date of termination. The distinction between the contract of service and the contract for services has been deemed to be one of fact not law.55 This classification is critical as most statutory employment protection in the Commonwealth Caribbean is intended to protect employees and not independent contractors. Further, liability for salary related statutory deductions (such as national insurance56 and income tax) varies depending on the individual’s status; employers are generally liable for these obligations only to the extent that the person is an employee.57 Notwithstanding the general duty placed on the employer to take care to avoid harm both at common law58 and under statute,59 it is evident that the special nature of the employment relationship requires the employer to exercise a greater duty of care vis-à-vis his employees than 53 54 55 56 57 58 59 Under the Labour Code of Antigua and Barbuda only employees are entitled to commence claims of unfair dismissal. Note also the CARICOM Model Harmonisation Act Regarding Termination of Employment which provides for an age limit on the capacity to contract in s 9, and safeguards for public sector contracts in s 11. Lee v Chung [1990] 2 WLR 1173, Privy Council; see also Charles Gibbs Martin Foster Partnership v Hurel N.J. Dewar (1977) 16 JLR 47, where the Jamaican Supreme Court, in agreeing that there was a contract for services in effect between the parties, also ruled that the plaintiff should be paid for the work which was substantially performed on a quantum meruit basis. See National Insurance Board v Walke (1994) 45 WIR 34. See the Income Tax Act Jamaica; see also Jamaica Public Service Co Ltd v Winston Barr, Bryad Engineering Co Ltd, Raymond Adams, Noel Bryan, Dervin Brown and Milton Verley (1988) 25 JLR 326, where the Jamaican Court of Appeal held that Bryad Engineering was the employer because they had prepared the plaintiff’s payslips, made deductions from his pay for statutory impositions, and submitted statutory payments as his employer. Note the general principles of negligence outlined in the locus classicus Donoghue v Stevenson [1932] AC 562; the application of employers’ liability outlined in United Estates Ltd v Durrant (1992) 29 JLR 468; the interpretation of vicarious liability outlined in Joseph v Hepburn (1992) Supreme Court, the Bahamas, No 762 of 1989 (unreported) delivered March 11, 1992 [BS 1992 SC 39]; and the scope of occupiers liability outlined in Fisher v Atkinson (2000) Supreme Court, Jamaica, No CL 1993/F-202 (unreported) delivered June 23, 2000 [ JM 2000 SC 35]. An employer must act reasonably in entrusting work to an independent contractor and ensure the work is properly done. See the Occupiers Liability Act of Jamaica s 3 (6) and the Occupiers Liability Act of Barbados s 4 (6). 96 Commonwealth Caribbean Employment and Labour Law his independent contractors. As a corollary, the employer will be held vicariously liable for the torts of his employees but not those of his independent contractors.60 TESTS USED BY TRIBUNALS AND COURTS TO DETERMINE WHETHER AN EMPLOYMENT RELATIONSHIP EXISTS Having established that legislation in the Commonwealth Caribbean is focused on protecting the ‘employee’ and not independent contractors or self-employed persons, it is imperative to have an appreciation for the manner in which tribunals and courts have made the distinction. The control test Since Yewens v Noakes,61 the amount of control exercised by the employer over the employee has been the focal point of the polemic of whether there exists a contract of service.62 Bramwell LJ stated that ‘A servant is a person subject to the command of his master as to the manner in which he shall do his work’.63 Rahim Bacchus argues that this definition was necessarily narrow to ‘maintain the concept of the employer as someone whose authority to give commands was based in part on his superiority of skill in performing the particular task or at least in directing how the job was to be done’.64 Later cases65 illustrated the inadequacy of the control test in particular because there are many contracts of service where the employer cannot be said to exercise control over the manner in which work is done. In the words of Professor Khan-Freund: ‘To say of the captain of a ship, the pilot of an aeroplane, the driver of a railway engine, of a motor vehicle, or of a crane that the employer “controls” the performance of his work is unrealistic and almost grotesque’.66 It is for this reason that the near total reliance on the test was abandoned and a search commenced for a more comprehensive base to determine employee status. The organisation or integration test Lord Denning proffered an integrated approach in Stevenson Jordan Harrison Limited v MacDonald and Evans.67 He opined that: … it is almost impossible to give a precise definition of the distinction. It is often easy to recognize a contract of service when you see it, but difficult to say wherein the difference lies. A ship’s master, a chauffeur, and a reporter on the staff of a newspaper are all employed under a contract 60 61 62 63 64 65 66 67 See Joseph v Hepburn (1992) Supreme Court, the Bahamas, No 762 of 1989 (unreported) delivered March 11, 1992 [BS 1992 SC 39]. (1880-81) LR 6 QBD 530. This test was used to determine that the claimant was an independent contractor in Fuller v Citrus Company of Belize (1996) 3 Bz L R 368. Ibid. See Bacchus, R. (1998) ‘The Control Test – a 19th century concept applied to 20th century problems in employment law’, December, West Indian Law Journal, 25th Anniversary Edition, p. 106. See Cassidy v Ministry of Health [1951] 3 KB 343 and Stevenson Jordan Harrison Limited v MacDonald and Evans [1952] 1 TLR 101. See Volume 14 of the Modern Law Review (1951) 505, at p. 506. [1952] 1 TLR 101. Chapter 3: Contracts of Employment 97 of service; but a ship’s pilot, a taxi-man and a newspaper contributor are employed under a contract for services. One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business and his work is done as an integral part of the business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.68 This approach was applied in the Barbadian case of Smith v Griffith.69 The appellant, who had full control of the business of a snackette, including the authority to hire and discipline staff, and control the accounts, was found to be under a contract of service. However, this case was arguably decided on its peculiar facts and thus does not provide an adequate yardstick by which to measure the integration element in all employment relationships. Indeed, the Supreme Court of Barbados in Rudder v Dallaway,70 per Sir William Douglas CJ, espoused the view that a multiplicity of considerations had to be taken into account when determining whether there exists a contract of service or a contract for services and that the integration test alone was an inadequate benchmark. This was affirmed by Kentish J in the later Barbadian case of Henderson Franklyn v American Life Insurance Company.71 In this case, although the contract signed by the plaintiff explicitly referred to the relationship being one of independent contractor and that ‘nothing in the contract shall be deemed to constitute the relationship of employer and employee’, Kentish J concluded that no one test was capable of determining the issue and that there were insufficient factors indicating the existence of a contract for services. Nonetheless, it may be argued that the primary consideration in this case was whether the plaintiff, ‘a career agent’, was performing insurance sales services under the contract as a person in business on his own account.72 The mixed/multiple test The acquiescence by successive court decisions that the fact that the employer could tell the individual what to do and how to do it was not a conclusive indication that the relationship was one of a contract of service was a powerful factor in the formulation of the mixed/multiple test as evidenced in the case of Ready Mix Concrete v Minister of Pensions.73 Here, McKenna J stated that: … whether the relation between the parties to the contract is that of master and servant or otherwise is a conclusion of law dependent upon the rights conferred and the duties imposed by the contract. If these are such that the relation is that of master and servant, it is irrelevant that the parties have declared it to be something else. I do not say that a declaration of this kind is always necessarily ineffective. If it were doubtful what rights and duties the parties wished to provide for, a declaration of this kind might help in resolving the doubt and fixing them in the sense required to give effect to that intention … A contract of service existed if (a) the servant agreed in consideration of a wage or other remuneration to provide his own work and skill in the performance of some service for his master, (b) the servant agreed expressly or impliedly that, in 68 69 70 71 72 73 Ibid. at p. 111. [1974] 22 WIR 5. (1984) 38 WIR 56. Here evidence was led in respect of the remuneration of the plaintiff, who was a trumpeter in a band. No evidence in support of other considerations consistent with a contract for services was adduced. No. 611 of 2003 (unreported) delivered May 29, 2006. A similar ruling was made in a case from the Bahamas: John Hanna v Imperial Life Assurance Company of Canada, Privy Council Appeal No. 61 of 2005. In particular, the description of the plaintiff as an ‘agent’ in the contract was not determinative where the facts as a whole were inconsistent with a contract for services – standards of performance were set by the company and the plaintiff was required to observe rules and regulations laid down by the company. [1968] 2 QB 497. 98 Commonwealth Caribbean Employment and Labour Law performance of the service he would be subject to the control of the other party sufficiently to make him the master, and (c) the other provisions of the contract were consistent with its being a contract of service; but that an obligation to do work subject to the other party’s control was not invariably a sufficient condition of a contract of service, and if the provisions of the contract as a whole were inconsistent with the contract being a contract of service, it was some other kind of contract and the person doing the work was not a servant; that where express provision was not made for one party to have the right of control, the question where it resided was to be answered by implication; and that since the common law test of the power of control for determining whether the relationship of master and servant existed was not restricted to the power of control over the manner of performing service but was wide.74 There is an irresistible inference that the architects of the LRIDA of Jamaica were inspired by this perspective as evinced by the amended definition of ‘worker’ as an individual subject to ‘a contract, however described, in circumstances where that individual works under the direction, supervision and control of the employer regarding hours of work, nature of work, management of discipline and such other conditions as are similar to those which apply to an employee’.75 The dicta in Ready Mix Concrete v Minister of Pensions, was applied in the Jamaican case of Dave Robinson and Sentry Service Company Limited v Inez Brown.76 The Court of Appeal noted that, although the argument could be made that the case was distinguishable on the fact that Ready Mix Concrete v Minister of Pensions was not concerned with vicarious liability, but was related to a claim for social security, it was nevertheless the underlying principles of the case that should be of pivotal importance. The opinion of Lord Wright in Montreal Locomotive Works Ltd v Montreal and the Attorney General of Canada77 was also relied upon: In certain cases a single test such as the presence or absence of control, was often relied on to determine whether the case was one of master and servant, mostly in order to decide issues of tortious liability on the part of the master … It has been suggested that a fourfold test would in some cases be more appropriate, a complex involving (1) control; (2) ownership of tools; (3) chance of profit; (4) risk of loss. Control itself is not always conclusive. However, in applying this test, a caveat was added not to carry out the task mechanically by treating each prong of the test as a check list.78 The facts of Dave Robinson and Sentry Service Company Limited v Inez Brown are that Robinson worked for Sentry Company Limited as a private security guard. Robinson was stationed at the entrance of Sabina Park to control the entry of patrons to a football match. A patron, Reid, attempted to improperly enter Sabina Park and he was hit by Robinson with a baton in an attempt to deter him. A chase ensued. Reid hid behind parked cars to avoid being apprehended. Reid then advanced towards Robinson with his hands in the air. Robinson levelled his gun at Reid with the words ‘You want mi shot you bwoy? You want mi kill you?’ Reid replied ‘after you can’t shot mi because me nuh do nuttin’. Robinson then fired a shot, fatally wounding Reid. The issue of vicarious liability of Sentry Company Limited for the tortious act committed by Robinson required a finding that Robinson was their employee, not an independent contractor, and that he was at the time of the incident acting in the course of his employment. The Court of Appeal, having relied on the abovementioned authorities, surmised that Robinson was under a contract of service. However, the tortious act was not committed during the course of his employment. The critical factual components considered in making the first determination were: (1) the 74 75 76 77 78 Ibid. See s 2 Jamaica Labour Relations and Industrial Disputes Act. (2003) Supreme Court Civil Appeal No. 18/99 (unreported) delivered April 3, 2003. [1947] 2 DLR 161. This was adopted from the caution issued by Mummery J in Hall v Lorimer [1994] 1 All ER 250. Chapter 3: Contracts of Employment 99 evidence clearly showed that Robinson did not bear the financial risk of the business; (2) he was given a wage and supplied with equipment and uniforms; (3) a firearm was issued to him by Sentry for the sole purposes of carrying out duties assigned by Sentry; (4) there was a written agreement which included a code of discipline and an entitlement to rest days; (5) he was required to undergo training and sit examinations set by Sentry. Most importantly, the Court of Appeal found the wording of the contract nugatory, as although it purported to be between Sentry and Robinson as an independent contractor, the cumulative effect of the factual considerations is consistent with a finding of a contract of service. It is submitted that this case rightly decided the issue of whether Robinson was an employee of Sentry Company Limited. Regrettably, despite the passing of the Private Security Regulation Authority Act, prospective security guards are still being required by certain security companies to sign a document indicating that their services are being offered as sub-contractors, at such times and places as directed, in obedience with company rules and regulations established by law79 and the company. They are also required to acknowledge in writing that they will comply with the statutory requirements concerning taxes and other statutory obligations as a self-employed person and that acceptance of the contract does not entitle them to the benefits of an employee. This is clearly a flagrant disregard for the real status of security guards who are disenfranchised employees under the veil of contracts for service. Downer JA, though cautious not to label this peculiar employment relationship negatively, points out that if Robinson were a member of the Constabulary Force, the Crown might have been found vicariously liable and that the Private Security Regulation Authority Act ought to be amended to protect third parties.80 Another Jamaican case, V.G. Rose v Jamaica Times (Press) Ltd,81 also tackled the question of whether the plaintiff was an independent contractor or an employee and placed reliance on the mixed/multiple test. Here the plaintiff worked with the defendant company for over 40 years in various capacities without a written contract. When he was eventually dismissed with a minimal one-month notice, his claim for greater benefits was rebuffed on the basis that he was an independent contractor. His request that the court declare his status as an employee was favourably viewed. After examining the tenets of the mixed/multiple test, Wright J opined that the particular words used in a contract were not conclusive of the nature of the relationship; a course of dealings between the parties in the relationship was also important. Thus, in circumstances where the claimant was provided with certain employee discounts, given a long service award, worked exclusively for the company who made statutory deductions on his behalf, attended training sessions paid for by the company inter alia was enough to counteract their argument that, because he was paid by commission and provided the major instrument for the job (a car), he was in fact an independent contractor. The economic reality test The case of Lee Ting Sang v Chung Chi-Keung82 distilled the common law standard to be applied in determining whether a person was working as an employee or an independent contractor. Lord Griffiths clarified that the fundamental test to be applied was a mixed question of fact and 79 80 81 82 For example, the Private Security Regulation Authority Act in Jamaica. The scope of this Act is limited to certification of individuals and organisations as fit and proper persons to work and carry on business in the private security business. Dave Robinson and Sentry Service Company Limited v Inez Brown (2003) Supreme Court Civil Appeal No. 18/99 (unreported) at p. 23. (1984) 21 JLR 212. [1990] 2 AC 374. 100 Commonwealth Caribbean Employment and Labour Law law requiring not only the interpretation of the written contract between the parties, but an investigation and evaluation of the circumstances in which the work was performed. The applicant was a mason working for the first respondent on a sub-contract. He was told where to work, how to work, when to work, his work was supervised, his tools were provided, he was remunerated based on a fair day’s wage, he assisted with sharpening tools and gave priority to the work of the respondent when requested to work for other contractors. He suffered a head injury on the job and the issue of his ability to claim compensation as an employee was raised. It was held that a finding by the court of first instance that a workman was, or was not, employed under a contract of service was a question of fact with which an appellate court could not interfere unless there was no evidence to support the finding of the lower court. Lord Griffiths cautioned that to apply the common law test of whether a person is ‘part and parcel of the organization’83 is likely to be misleading in the context of a statute that expressly contemplates that casual workers, and workers for two or more employees concurrently, may be employed under a contract of service. The economic reality test was applied in the Barbadian case of Sagicor Insurance Company v Carter, Ishmael, Hill and Audain.84 Simmons CJ adumbrated the successive tests and concluded that, despite the written agreement between the parties that used the label ‘agent’, the plaintiffs were integral parts of the company and other aspects of the employment relationship as it operated in practice were consistent with there being a contract of service. In particular, the plaintiffs performed work personally using their skills, they were provided with the tools of trade, office space and secretarial assistance, they took no financial risk, and they had no responsibility for investment and management. Perhaps the better view is that the economic reality test is more of a restatement than a reformulation of the multiple test. Both tests require an evaluation of the evidence as a whole, starting with an assessment of the control component, whether orally or in writing, and culminating with an analytical balancing act of the weight to be ascribed to the virtual performance of the job. As illustrated by the foregoing cases, the paternalistic approach of the Commonwealth Caribbean courts have, more often than not, resolved the issue in favour of the employee. The mutual obligations test In contrast to the economic reality test, the mutual obligations test proffers the view that, when determining whether the relationship between the parties was that of employer and employee or employer and independent contractor, the tribunal should focus on the mutual obligations agreed in the contract, rather than concentrating on what actually occurred. O’Kelly v Trusthouse Forte plc85 explored the peculiar challenge presented when dealing with casual workers. In this case the workers were employed as banqueting staff. They did not perform their duties under permanent contracts of employment, but were engaged on a regular basis for each function and were thus referred to as ‘regular casuals’. Their attempt to unionise their numbers was thwarted by dismissal and they subsequently sought redress from the industrial tribunal for wrongful dismissal. The tribunal found that there was no overall contract of employment between the parties and that the workers were in business on their own account as independent contractors supplying services. On appeal, Sir John Donaldson MR, concurring that an appellate tribunal was limited to hearing an appeal on a point of law and had no jurisdiction to consider a question 83 84 85 See Lord Denning in Stevenson Jordan Harrison Limited v MacDonald and Evans, ibid. at p. 111. (2007) 71 WIR 75 [BB 2007 HC 19]. [1983] 3 All ER 456. Chapter 3: Contracts of Employment 101 of mixed law and fact until it had distilled or extracted a question of pure law, opined that: ‘Although the formulation of the test of whether a contract was a contract of employment or a contract for services was a pure question of law, the application of the test so formulated to the relevant facts depended so much on the finding and assessment of the relevant facts and the precise quality to be attributed to them that the primary question was one of fact and degree’.86 This approach was mirrored in the case of Express and Echo Publications Ltd v Tanton87 where, pursuant to a redundancy exercise, the employee was dismissed and thereafter reengaged under a new agreement as an independent contractor. On the facts, the court found that there was no obligation under the new agreement for the worker to provide his services personally; the existence of such an obligation being a sine qua non of a contract of employment. It was further concluded that once it was construed that the new agreement reflected the true intention of the parties, the relationship between the parties was one for services, irrespective of the manner in which the services were realised. It is noteworthy that O’Kelly v Trusthouse Forte plc was considered in Sagicor Insurance Company v Carter, Ishmael, Hill and Audain, highlighting that the employment contract requires the employer to provide work and wages and, in return, the employee shall provide his services personally. It was acknowledged that the lack of mutuality of obligations was not, in itself, a decisive factor and that casual workers may, in appropriate circumstances, be considered employees. Simmons CJ underscored that: ‘Care must be exercised in this area because each case will turn on its own facts and the terms of the particular contract being construed’.88 Of critical importance is the fact that ultimately the court stated unequivocally that: A proper approach … requires a thorough consideration of all aspects of the relationship between the parties including an examination and construction of the terms expressly set out in the written contracts as well as the manner in which the contracts were performed. The written contracts are the principal, though not the only, sources of information as to the nature of the contractual relationship between the parties. There are other factors or features of the relationship that require examination. No single factor or feature is likely to be decisive in itself. Each may vary in weight or direction pointing either towards a contract of service or a contract for services. Having given such balance to the respective factors as seems warranted on the evidence, I then have to determine the ultimate question, namely, whether the worker is carrying on business on his/her own account or not.89 It is submitted that the persuasiveness of this argument casts doubt on the obligation test as an accurate barometer of the employment status quo. This view is buttressed by the Court of Appeal decision of Trinidad and Tobago in Dumas v Confederation Life Association.90 In the judgment delivered by Wooding CJ it was noted that, although the precise nature of the relationship between the parties was not a determinant factor in respect of the outcome of the case, the fact that the parties entered into a contract that authorised the appellant to solicit and procure insurance business for the respondent, but which did not in any way bind him to devote his time or energy to soliciting or procuring any such business, and on consideration of all the terms, the relationship was one of a ‘contract of independent agency’.91 In summary, there is an inescapable inference that none of the tests can stand alone and that Commonwealth Caribbean courts favour a wide approach. A clear illustration of this is 86 87 88 89 90 91 Ibid. [1999] ICR 693. Sagicor Insurance Company v Carter, Ishmael, Hill and Audain, ibid. at para 26. Ibid. at para 38. [TT 1966 CA 168]. Ibid. This term was applied in the case of Motion v Michaud [1892] 8 TLR 253 & 447. 102 Commonwealth Caribbean Employment and Labour Law seen in Pestaina v Dickenson Bay Management Ltd. (Dba Sandals Antigua),92 where Pilgrim J made a determination that the claimant was an employee after an examination of the labels ascribed to the parties in the contract; the fact that remuneration was made on a commission basis; who bore the responsibility for the payment of social security, medical benefits, education levy and income tax; hours of work specified; whether permission was required to take leave; participation in a pension plan; the authority of the putative employee to hire others to assist with the execution of the work, whether such work was integral to the putative employer’s business and whether there existed an opportunity for investment and a risk of loss. Pilgrim J also noted that ‘The control test may still be relevant. However, this test may not be appropriate to be utilized in certain circumstances. I respectfully suggest that the facts of this case do support the need to examine other tests.’93 INTERNATIONAL LABOUR INSTRUMENTS AND IMPACT ON NATIONAL LEGISLATIVE FRAMEWORK UNDERPINNING THE EMPLOYMENT RELATIONSHIP On 15 June 2006, the ILO adopted the Employment Relationship Recommendation94 with a view to urging member States to adopt national policies for the protection of workers in an employment relationship. It was recognised that for this national policy to promote economic growth, job creation and decent work, it was important to consider the definitions of employer, employee and their inter-correlation in the employment relationship. The Recommendation comprises four parts and 23 sections. It states inter alia that: 1) Members should formulate and apply a national policy for reviewing at appropriate intervals and, if necessary, clarifying and adapting the scope of relevant laws and regulations, in order to guarantee effective protection for workers who perform work in the context of an employment relationship.95 2) National policy should at least include measures to: (a) provide guidance for the parties concerned, in particular employers and workers, on effectively establishing the existence of an employment relationship and on the distinction between employed and self-employed workers; (b) combat disguised employment relationships in the context of, for example, other relationships that may include the use of other forms of contractual arrangements that hide the true legal status, noting that disguised employment relationships occur when the employer treats an individual as other than an employee in a manner that hides his or her true legal status as an employee, and that situations can arise where contractual arrangements have the effect of depriving workers of the protection they are due; (c) provide effective access of those concerned, in particular employers and workers, to appropriate, speedy, inexpensive, fair and efficient procedure and mechanisms for settling disputes regarding the existence and terms of an employment relationship;96 3) For the purposes of the national policy of protection for workers in an employment relationship, the determination of the existence of such a relationship should be guided primarily by the facts relating to the performance of work and the remuneration of the worker, notwithstanding 92 93 94 95 96 [AG 2010 IC 4]. Ibid. at para 167. R198 of 2006; see also ILO Convention 158 Termination of Employment Article 3 (2) ‘Adequate safeguards shall be provided against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from this Convention’. Recommendation Part I s 1. Ibid. Part I s 4 (a), (b) and (e). Chapter 3: Contracts of Employment 103 how the relationship is characterized in any contrary arrangement, contractual or otherwise, that may have been agreed between the parties. Members should promote clear methods for guiding workers and employers as to the determination of the existence of an employment relationship;97 … including providing for a legal presumption that an employment relationship exists where one or more relevant indicators are present;98 4) Members should consider the possibility of defining in their laws and regulations, or by other means, specific indicators of the existence of an employment relationship. Those indicators might include: (a) The fact that the work: is carried out according to the instructions and under the control of another party; involves the integration of the worker in the organization of the enterprise; is performed solely or mainly for the benefit of another person; must be carried out personally by the worker; is carried out within specific working hours or at a work place specified or agreed by the party requesting the work; is of a particular duration and has a certain continuity; requires the worker’s availability; or involves the provision of tools, materials and machinery by the party requesting the work; (b) Periodic payment of remuneration to the worker; the fact that such remuneration constitutes the worker’s sole or principal source of income; provision of payment in kind, such as food, lodging or transport; recognition of entitlements such as weekly rest and annual holidays; payment by the party requesting the work for travel undertaken by the worker in order to carry out the work; or absence of financial risk for the worker.99 5) The settlement of disputes concerning the existence and terms of an employment relationship should be a matter for industrial or other tribunal or arbitration authorities to which workers and employers have effective access in accordance with national law and practice.100 The Recommendations highlighted above reflect the spirit and the judicial thinking of the common law examined earlier in this chapter. There is an explicit acknowledgment that members may craft their own bespoke version of the broad principles; however, the adoption of an appropriate national policy is mandatory.101 This is precisely what has resulted in the Commonwealth Caribbean – legislation in the region and the corresponding jurisprudence indicate a general approval of the Recommendations and it would be fair to say that, notwithstanding certain distinguishing features, the members are ad idem on the core ideology: that is, independent contractors should not be entitled to benefit from the protections synonymous with the employment relationship and legislative entrenchment of certain individual employment rights as part of the employment relationship is a sine qua non of decent work. To illustrate this point the laws of Antigua, Anguilla, St. Lucia and Barbados will be considered. Section A5 of the Labour Code of Antigua and Barbuda uses the term ‘contract of service’ synonymously with the term ‘contract of employment’.102 In an attempt to provide a harmonious workplace environment, the Labour Code has elevated core employee expectations to statutory rights. In Pestina, Piligrim J stated that these statutory rights included a ‘guaranteed pay, employment in conformity with the Labour Code, a statement of working conditions, a 97 Ibid. Part II ss 9 and 10. 98 Ibid. Part II s 11 (b). Arguably, permitting members to adopt presumptions in this way removes the flexibility evident in the common law approach of examining each situation on a case by case basis, having regard to specific guidelines rather than pre-empting the classification process without due regard to the particularities of the case under review. 99 Ibid. Part II s 13 (a) and (b). 100 Ibid. Part II s 14. 101 Contrast the United States ‘At-Will Doctrine’ which Katherine Stone describes as leaving ‘employees… vulnerable to arbitrary and sudden dismissal,… unannounced cuts in pay and benefits… no justiciable right to fair treatment (although) some of those rights have been provided for by statute.’ See Stone, K (2007) ‘Revisiting the At-Will employment doctrine: imposed terms, implied terms, and the normative world of the workplace’ in Industrial Law Journal March, Vol. 36, Issue 1, p. 84 at p. 84. 102 See Pilgrim P in Pestaina v Dickenson Bay Management Ltd (Dba Sandals Antigua) [AG 2010 IC 4] at para 88. 104 Commonwealth Caribbean Employment and Labour Law statement upon termination, certain leave privileges, maternity rights, holiday with pay, the right not to be refused employment because of membership or non-membership of a trade union, a safe system of work, statutory sick pay, and redundancy payment’.103 By requiring an employer to give an employee a written statement of the responsibilities and duties associated with his employment within ten days of hiring,104 the statute has effectively transposed the common law obligation test, with an emphasis on control.105 Under Section C5 the particulars to be outlined in the statement are: (a) (b) (c) (d) (e) (f) (g) The general responsibilities and related duties for which the employee is being employed; The regular hours of work, and rest periods; The starting pay, and method of computing same; The term of employment, if other than indefinite; The period of probation, if any; The employee’s leave and vacation privileges; and His obligations if any, imposed under Section J13 (the collective labour agreement). Arguably, where such a written statement is furnished by an employer, it unequivocally demonstrates his acquiescence of the employment relationship, removing any ambiguity of the status of the worker as an employee. Important considerations of ownership of tools, chance of profit and risk of loss, etc., highlighted in the multiple test, have been omitted from the list of required information to be furnished by the employer in his statement of working conditions. While this may appear rational, it is unfortunate as it leaves room to debate that the reality of the working conditions in a particular case evinces an employer/ independent contractor relationship. Under the Anguilla Control of Employment Act, the employee must be engaged in any occupation for profit or reward. As seen in Goldfinger and Cove Castles Development Corporation v Luxemburg, a contract of employment requires some degree of regularity and continuity and is not synonymous with a one-off transaction.106 This concept must be juxtaposed with the widely-accepted principle that an employee is someone who normally works for his employer,107 whereas an independent contractor is thought to engage in one-off transactions as he is carrying on a business of his own. This desire for a worker to demonstrate a longstanding commitment or loyalty through longevity of service has been described as ‘organisational citizenship behaviour’ (OCB). According to Katherine Stone, ‘Much of current human resource policy is designed to resolve the following paradox: firms need to motivate employees to provide OCB and commitment to quality, productivity, and efficiency while they concurrently dismantle job security and job ladders that have given employees a stake in the wellbeing of firms for the past 100 years. Hence managers have been devising new organisational structures that embody flexibility while also promoting skill development and fostering OCB.’108 Arguably, the Anguillan legislative model has left this tension unresolved. 103 Ibid. at para 91. 104 See s C5. 105 Under s C5 (1) the statement of working conditions shall set out the employee’s general responsibilities and duties, hours of work, rest periods, wages, term of employment, probation, leave entitlement, and his obligation under any collective agreement in existence. 106 Goldfinger and Cove Castles Development Corporation v Luxemburg [2002] AI 2002 PC 1. The Privy Council held that the limited one-off transaction performed by Mr Luxemburg did amount to carrying on an occupation. 107 See Chapter 5, Table 1 for a comparison of legislative provisions on the requirement for continuity of employment. 108 See Stone, K. (2007) ‘Revisiting the At-Will employment doctrine: imposed terms, implied terms, and the normative world of the workplace’, Industrial Law Journal, 36 (1) 84 at p. 88. Chapter 3: Contracts of Employment 105 Part III Division I of the Labour Code of St. Lucia provides detailed and pragmatic parameters that delimit the scope of the employment relationship. ‘Contract of employment is defined as a contract of service or apprenticeship whether it is expressed or implied and, if it is expressed, whether it is oral or in writing.’109 It is explained that a contract of employment may be for a definite or indefinite term, in respect of a specific task (unlike Anguilla) or general duties and may be terminated by the employer or the employee, having due regard to the provisions of the code on unfair dismissal and notice of termination.110 Similarly Antigua, where a written statement of particulars is required, under the St. Lucia Code the employer must furnish the employee with particulars of the employment contract itself, and he has 14 days from the commencement of hiring to do so. The significance of this distinction is that the statement of particulars is not the contract of employment, it is merely evidence of the terms of the contract,111 thus it is not enforceable per se112 and a breach thereof would not give rise to damages. The Code further provides that where there is an oral contract, the particulars must be explained and, if the employee so requests, the employer shall provide a written contract within a month of the request for inspection, execution and a signed copy given to the employee.113 Fines may be imposed for false particulars114 and if the written contract provides for lower standards than those established in the Code it shall be null and void.115 There is also a deliberate attempt to protect minors and family relationships by requiring a higher standard of contractual accountability.116 This employee-centric approach reflects an intuitive response to the mischief left unresolved by the common law. It is so comprehensive that it is difficult to conceive of a situation where any uncertainty in respect of the worker’s status as an employee could arise. Perhaps the one inescapable flaw is that the Code, like its homologues in the Commonwealth Caribbean, mandates the employer to carry the brunt of the not so mutual obligations implicated by the employment relationship.117 This approach assumes that the average employer is knowledgeable of the Code, reasonable in his decision making, endowed with ample dexterity in human resource management and adept at balancing his considerable statutory responsibilities with the rigours of business efficiency in every case. In addition to requiring an in-depth statement of aggregate particulars on a par with that required under the Antigua Labour Code, the novelty of the Employment Rights Act of Barbados 2012 is that particulars must include the length of notice which the employee is obliged to give and entitled to receive when terminating his contract of employment, the place of work where the employee is required to carry out his duties118 and any applicable disciplinary rules and grievance procedures.119 Most importantly, the Act has boldly undertaken the task of codifying the common law tests used to determine the existence of an employment relationship. Having 109 See s 2. 110 See s 12. 111 See commentary on the status of the written statement in Smith, I. and Baker, A. (2010) Smith & Wood’s Employment Law (10th Ed.), Oxford: Oxford University Press, at p. 79. 112 Note the statement of Browne-Wilkinson J in System Floors (UK) Ltd v Daniel [1981] IRLR 475 that the statement of particulars do not constitute a written contract nor is it conclusive of the terms ‘at most, they place a heavy burden on the employer to show that the actual terms of contract are different from those which he has set out in the statutory statement’. 113 See ss 13 and 14. 114 Section 16 makes it an offence to include anything false in a material particular in the written contract. If found guilty on summary conviction the employer is liable to pay a fine not exceeding 10,000 dollars. 115 See s 13 (4). 116 See ss 18 and 20. 117 Consider the discussion in Cabrelli, D. (2005) ‘The implied duty of mutual trust and confidence: an emerging overarching principle’, Industrial Law Journal, Vol.34, No.4, December, pp. 284-307, at pp. 285-6. 118 See s 13. 119 See s 14. Where reference is made to a document containing disciplinary rules regard should be had to the Standard Disciplinary Procedures set out in the Fourth Schedule of the Act. Documents relating to discipline and grievance should be reasonably accessible to the employee. 106 Commonwealth Caribbean Employment and Labour Law established in Section 3 that ‘contract of employment’ means ‘a contract of service or apprenticeship, whether express or implied and if expressed, whether oral or in writing’, the First Schedule goes on to set out the factors to be considered when determining, in a particular case, whether a contract of employment exists. The factors enumerated in the First Schedule are whether: (a) There is an obligation on the part of the employee to give personal and exclusive service; (b) The work is done according to the instructions of the employer, and the manner in which the work is carried out is subject to the control and direction of the employer; (c) The work has continuity, and such continuity creates for the employee an economic dependence on the employer, without there being any financial risk to the employee; (d) The work is carried out within fixed hours or at a workplace or workplaces specified or agreed by the employer; (e) The work involves the integration of the employee in the organisation of the business, including his subjection to its policies; (f) The employee is subject to the procedures of the business for addressing grievances and disciplinary matters; (g) The employee is in receipt of periodic remuneration payable on a stipulated basis, for example, at hourly, weekly or monthly intervals, and all such payments are subject to statutory deductions; (h) The employee is entitled to holidays with pay; and (i) The employee makes no, or only nominal, investment in tools and equipment. In an abundance of caution, the draftsman has inserted a ‘Note’ at the end of the First Schedule indicating that ‘This list is not exhaustive, and the factors outlined are all elements in a balancing exercise to determine the nature of the contract. No one factor, therefore, is by itself conclusive, and the weight to be attached to any one of the factors is a matter for adjudication.’ Admittedly, the schedule is a concise coalescence of the common law tests elaborated in this area. However, the ultimate acknowledgement that the determination requires a balancing act to be carried out by the courts on a case by case basis is arguably an unwitting concession that the ‘factors’ are nothing more than aesthetic trappings with no or negligible improvement on the long standing common law tests or the approach which courts have traditionally applied in the past. THE LEGALITY OF THE EMPLOYMENT CONTRACT AND ITS ENFORCEMENT Honeyball and Pearce suggest that ‘the theoretical nexus between employment and contracts of employment should be broken in order to provide a more logical conceptual framework’.120 The existence of an employment relationship is therefore not synonymous with the existence of a legally binding contract of employment.121 Persons who enter into an employment contract 120 See Honeyball, S. and Pearce, D. (2006) ‘Contract, employment and the contract of employment’, Industrial law Journal March, Vol. 35, Issue 1, p. 30. 121 See Sarker v South Tees Acute Hospitals NHS Trust [1997] ICR 673. This case is authority for the view that the employment relationship comes into existence at the same time as the contractual relationship. A contract to commence employment on a specific date in the future is not a preliminary contract for employment and no further contract between the parties is required. Here the purported withdrawal of the offer of employment prior to the start date was held to be a termination of the contract of employment as the claimant qualified as an employee under the relevant statute i.e. being an individual who has entered into, or works under, or where the employment has ceased, worked under a contract of employment. Chapter 3: Contracts of Employment 107 are free to determine the terms and conditions of their agreement subject to any overriding common law and statutory restrictions. Like all contracts, if the objects are contrary to common law and or statute, or the consideration contemplated is unlawful, the contract of employment will be void. For example, if there is a contract term that provides for tax evasion or an inequitable restriction estopping the employee from accepting employment in the same industry after his employment contract is terminated. The public policy concern that arises is how to thwart the deliberate effort of a savvy employer who seeks to rely on illegality to avoid an employee’s claim of unfair dismissal. This engenders another critical issue – if there is no valid contract of employment, the relevant industrial tribunal has no jurisdiction to adjudicate the dispute. Commonwealth Caribbean territories have advanced legislative solutions to impose invalidity where employment contracts fail to incorporate minimum standards. However, there are no apparent guidelines on how to treat with the repercussions of invalidity where the employment contract contravenes the statute’s exclusionary provisions. The common law approach of distinguishing contracts that are illegal from the outset as void ab initio from contracts that are initially legal but are subsequently performed in an illegal manner has been adopted to resolve this problem.122 In particular, as it relates to tax evasion cases, the trend has been to treat the employment contract as valid but performed illegally. In the leading case of Hewcastle Catering Ltd v Ahmed,123 Beldam LJ underscored the importance of public policy in determining whether or not to treat tax evasion as an illegality of performance and allow an unfair dismissal claim. The question to be answered is whether it would be an affront to the public conscience to allow the claim to proceed having regard to the knowledge of the parties and the extent of their culpability in furthering the illegal objective. Perhaps the better view is that ‘any incidental tax evasion should only ever make the contract illegal in performance and that for the illegality then to make the contract void the employee must have known of and benefitted from the evasion to such an extent (in comparison with the gain to the employer) that the court or tribunal has no option but to declare the whole contract void’.124 This logic could also be applied in circumstances where the employer failed to give written particulars where legislation stipulates that this is a sine qua non of validity of the employment contract. Arguably, avoidance of the employment contract could only be substantiated by a fundamental element of illegality that goes to the heart of the contract. Although written particulars are critical, an acknowledgment that the employment contract may be express or implied suggests that the legislative intent is to police the giving of statements rather than render the contract void for illegality. From this perspective, absence of written particulars should be treated as illegality of performance. Another important aspect of the legality of employment contracts is the inclusion of restrictive covenants. A contractual undertaking not to trade is void and unenforceable against the promisor as contrary to the public policy of promoting trade, unless the restraint of trade is reasonable to protect the interest of the purchaser of a business.125 The common law recognises the utility of restraint of trade clauses in employment contracts where there is a legitimate interest that needs to be protected. Accordingly, restraint of trade clauses have been deemed enforceable where the employer’s interest in preserving business connections and business secrets was vulnerable and susceptible to being used as a springboard for the professional advancement of an ex-employee to the detriment of the employer’s business. The enforceability of the restraint clause will be determined by its reasonableness. It must adequately protect 122 See Coral Leisure Group Ltd v Barnett [1981] ICR 503; [1981] IRLR 204. 123 [1992] ICR 626; [1991] IRLR 473. See also Newland v Simons and Willer (Hairdressers) Ltd [1981] ICR 521; [1981] IRLR 359. 124 See Smith, I. and Baker, A. (2010) Smith & Woods Employment Law (10th Ed.), Oxford: Oxford University Press, at p. 89. 125 See Nordenfelt v Maxim, Nordenfelt Guns and Ammunition Co [1894] AC 535. 108 Commonwealth Caribbean Employment and Labour Law the employer’s interest without operating as a fetter on the ex-employee’s freedom to work on the expiry of the employment contract or otherwise mete out an injustice in respect of job market options and entrepreneurial opportunities that the ex-employee would fairly be entitled to exploit. Generally, if a restraining clause is found to be unreasonable, then it will be void. However, rather than construing an unreasonable restraint clause as illegal, thus rendering the employment contract void, the tendency has been to impose an interpretation of the clause or to sever the clause from the remaining valid body of the contract. In order to achieve this, courts have conceptualised the ‘blue pencil test’ whereby wide and ambiguous terminology used in the clause are deleted in a manner which preserves the grammatical sense of the clause without altering the nature of the obligations. An example of the application of this principle is to be found in the case of MITCO Water Laboratories Limited v Hugh Small.126 Here the Supreme Court of Jamaica had to construe a restraint of trade clause that precluded the defendant from disclosing the details of the plaintiff’s business at any time, soliciting any business from the plaintiff for a period of three years after termination of the employment contract, and not to engage in any similar business within a 15-mile radius of the plaintiff’s business. The court considered the common law rule stated above as elaborated in the case of Nordenfelt127 and applied the two prong test established by the House of Lords in Esso Petroleum Co Ltd v Harper’s Garage Ltd.128 ‘In that case their Lordships were at pains to point out that there were two independent questions that must be given consideration. The first is whether the contract in restraint of trade is so restrictive of the promisor’s liberty to trade with others that it must be treated as prima facie void. If the court finds that it is, then the second question is whether the restrictive clause can be justified as being reasonable.129 Guided by the overarching concern to avoid a result prejudicial to public policy and to promote fair competition the court granted an interlocutory injunction in respect of the claims of disclosure and soliciting, but refused to grant the relief prayed in respect of the 15-mile radius prohibition of employment. The evidence revealed that all businesses akin to that carried on by the plaintiff were located in Kingston and within a 15-mile radius of his operations. This was deemed to be an absolute prohibition on the defendant trading or using his skill and knowledge in Jamaica, and therefore an unenforceable term of the contract. 126 (1994) 31 JLR 662. 127 Ibid. at p. 665. 128 [1968] AC 269. 129 Cited in MITCO supra at p. 666. CHAPTER 4 TERMS OF THE EMPLOYMENT CONTRACT AND CONDITIONS OF EMPLOYMENT SOURCES OF EMPLOYMENT CONTRACT TERMS The rights and obligations of the parties under the employment contract are called terms. These may be outlined by the parties in the contract, mandated by legislation, incorporated by the collective agreement or included by custom and practice. In appropriate circumstances, terms may also be implied by the courts or tribunals. It is important to establish from the outset that ‘express terms’ in the employment contract context refers to the terms directly discoverable by word or act rather than the fact that they have been reduced to a written statement or contract document. At common law there is no requirement that contractual terms be in writing; orally communicated terms may be equally binding.1 However, empirically, a written contract provides the best indication of the express terms that have been mutually agreed by the parties and, where necessary, is the best proof of the contours of the employment relationship.2 It is common practice to include express terms in the employment contract in respect of the duties to be carried out by the employee, the length of the contract, and the quantum of remuneration. As with all contracts, the parties are free to negotiate the obligations and benefits to be had once they are not restricted by statute or public policy, and these will vary depending on whether the employment contract is temporary, for a fixed term, has renewable terms or is of an indefinite duration. EXPRESS TERMS IN THE BODY OF THE CONTRACT The employment contract negotiating process is often characterised by standard form agreements which consist of non-negotiable terms that derive from extrinsic sources; in particular, legislation, collective labour agreements, and custom and practice. Although this may seem to operate as a fetter on the freedom to contract, the underlying policy objectives are invariably conceived to protect the employee’s interest as the perceived weaker negotiating party or, in any event, to support the maintenance of harmonious employment relations. Other important documents that have an impact on the employment relationship are written and oral communications exchanged before, during and after the signing of the contract, employee handbooks, disciplinary codes, and notice boards.3 It is a question of fact to be determined by the court or tribunal whether it was the intention of the parties to be bound by these types of documents where they have not been deliberately incorporated into the employment contract.4 Courts 1 2 3 4 See Judge v Crown Leisure Ltd [2005] IRLR 823. Nelson v BBC [1977] IRLR 148 and Deeley v British Rail Engineering Ltd [1980] IRLR 147. See Dryden v Greater Glasgow Health Board [1992] IRLR 469 where the employer introduced a non-smoking ban. Also included in this genus are newsletters, journals and policy/mission statements produced by the employer. See the case of Grant v South West Trains Ltd [1998] IRLR 206 which considered a company policy influenced by sexual orientation discrimination. See Cadoux v Central Regional Council [1986] IRLR 131; Robertson v British Gas [1983] ICR 351. 110 Commonwealth Caribbean Employment and Labour Law and tribunals have shown more of a willingness to do so where the employment contract makes reference to the document or it is attached to the employment contract itself.5 Once mutual agreement in respect of an offer, an acceptance and valuable consideration has been established, any variation of the express terms requires reciprocity. In Banking Insurance and General Workers’ Union v Guardsman Security Services Limited6 the Industrial Court of Trinidad and Tobago denounced the unilateral modification by the employer of the terms of the employment contract. The court further espoused that while in its opinion the employer’s act of offering the employee a lower position, fewer days’ work and reduced salary was harsh and oppressive, it was prepared to take into account the fact that the employee did not come to the court with clean hands when determining an appropriate award. In contrast, in Keith v Ruffin’s Crystal Palace Hotel Corporation Limited (d/b/a Wyndham Nassau Resort and Crystal Palace Casino)7 the court determined that the parties were bound by a promissory note that had been mutually agreed in respect of the termination of the employment contract, albeit that the promissory note did not form part of the employment contract. In particular, the promissory note did not provide for deductions for bank holiday so no payments were made under this head. Verbal variation of a written contract of employment is likely to be deemed a breach. In Ocean Properties (Bahamas) Ltd. (C.O.B. Pirates Cove Holiday Inn) v Nairn8 the court considered the validity of an oral amendment to the employment contract which stated inter alia ‘The above terms and conditions are in the main the more important and significant terms of your employment. Other terms of employment not stated herein will continue while you are employed at the discretion of the senior management of the company.’ The employee claimed that the written employment contract had been supplemented by an oral term to give benefits consisting of room, food, beverage and laundry; two months’ notice of termination for every year of service as senior management; and a bonus of 8 per cent for the whole of the period of notice to which she was entitled. The employee brought an action for breach of the oral amendment when the employer purported to terminate the employment contract in accordance with the written terms thereof which stated ‘Either party may terminate this contract by giving the other party three (3) months’ notice in writing. The Employer reserves the right to pay salary in lieu of notice. If any act of dishonesty or violence is committed, the Employer reserves the right to terminate summarily without pay.’ Although the tribunal at first instance found in favour of the employee, the Bahamian Court of Appeal set it aside, ruling that there was no basis for the award of the tribunal or its decision that the respondent had been wrongfully dismissed. EXPRESS TERMS MANDATED BY LEGISLATION Most written contracts contain express terms in relation to the duties to be performed, the duration of the contract and the remuneration to be paid for services rendered. In some Commonwealth Caribbean jurisdictions, legislative provision has been made for written particulars of employment that must be included in the contract of service. This has the distinct 5 6 7 8 English courts have demonstrated restraint by concluding in Robertson v British Gas Corporation [1983] IRLR 302 that a letter of appointment, not the statutory statement of terms, constitutes the contract of employment. Contrast the decision of Jowitt v Pioneer Technology (UK) Ltd [2003] IRLR 356 where the court declined to treat the terms of an insurance policy as incorporated into the contract of employment, neither direct nor indirectly, on the premise that the company handbook, which was incorporated into the employee’s contract of employment, made reference to compensation for illness or disability. TD No. 113 of 2007 (unreported) delivered July 30, 2009 [TT 2009 IC 54]. COM/LAB 26 of 2005 (unreported) delivered June 30, 2008 [BS 2008 SC 59]. Civil Appeal No. 2 of 1992 (unreported) delivered October 21, 1994 [BS 1994 CA 15]. Chapter 4: Terms of the Employment Contract 111 advantage of ensuring the adoption of terms that incorporate the basic conditions of employment and safeguarding against vague oral and written agreements simultaneously. Statutory particulars of employment, if not expressly included in the contract of employment, will be presumed by the courts to be applicable. Thus they may be classified not only as express terms and implied terms but also ‘imposed terms’ where no opt out is afforded under the legislation. The net effect is that the managerial prerogative to determine the express terms of the employment contract has been significantly eroded by legislation; the same may be said of the employment contract’s reduced function in delineating the scope of mutually agreed express terms. Consider the following statutory examples of written particulars of employment. The Employment Act of the Bahamas, Act No. 27 of 2001 Section 5 (1) provides for the following conditions of employment. A person employed after the commencement of this Act shall be informed by his employer as soon as practicable of the following particulars: (a) (b) (c) (d) (e) (f) the name of the employer or group of employers and where practicable of the undertaking and of the place of employment; the name of the employee, the place of the engagement, and where practicable the place of origin of the employee, and any other particulars necessary for his identification; the nature of the employment; where a person is engaged for a fixed period or in appropriate circumstances, the duration of the employment and the method of calculating the duration; the rate of wages and other benefits and method of calculation thereof, the manner and period of payment of wages and other benefits, the advances of wages and other benefits, if any, and the manner of repayment of any such advances; where any work is to be performed not by the piece but by time, the number of hours of daily work, and the hours of the day at which such work is to commence and to terminate. The Labour Act of Belize, Chapter 297 of 2000 Section 50 mandates that, where a contract of service of a worker is made for a period of or exceeding three months or a number of working days equivalent to three months, the contract shall be made in writing and signed by the worker. Failure to reduce the agreement to writing shall render the contract enforceable for one month only. Section 51 mirrors the particulars outlined in the Bahamas Act with the following additions: • • where possible the name and address of the next of kin of the worker;9 the appropriate period of notice to be given by the party wishing to terminate the contract, due regard being had to Section 57 and to the fact that such provisions refer to an equitable settlement of monetary and other questions;10 the measures to be taken to provide for the welfare of the worker and any dependant who may accompany him under the terms of the contract;11 any special conditions of the contract.12 9 10 11 12 See s 51 (c). See s 51 (f). See s 51 (h). See s 51 (i) and (j). • • 112 Commonwealth Caribbean Employment and Labour Law This extended formulation places a greater duty on employers to exercise due diligence when entering into employment contracts, which augurs well for employees who may find themselves with little or no bargaining power. The Belizean Supreme Court has also indicated its willingness to take a purposive approach to the provisions of the Act. Thus in Taegar v Belize Tourist Board13 the court frowned on an attempt by the employer to rely on the stipulations of Section 52 of the Act (which required that within seven days all written contracts are to be attested by the Labour Commissioner to be enforceable) to disenfranchise the workers from claiming damages for wrongful dismissal. Nathan J indicated that this provision placed the duty on the employer and it would therefore be unconscionable for them, not having met the statutory requirements, to use the lack of attestation to claim that the applicant did not have a valid contract to begin with. It is clear that the intent of the legislation was to ensure that workers could rely on the terms of the contract, which was imbued with proper legal form and witnessed by the requisite Labour Officer, rather than to institute dry legal formality that could be used to thwart its clear intent. The St. Lucia Labour Code, Act 37 of 2006 (proclaimed 1 August, 2012) The St. Lucia Labour Code arguably provides a more comprehensive approach to the issue of contractual imposition. Firstly it makes provisions for three types of contracts: the contract of indefinite duration, the fixed term contract and the specific task contract.14 Further it indicates that if the fixed term or specific task contract is related to a post that is normal and permanent within the organisation, and is for a period of two years or more, it will be deemed to be a contract of indefinite duration.15 Conceivably this inoculates the mischief of employers attempting to use these two genres of contract to escape the responsibilities attached to permanent employment. Secondly, the employer is encouraged to prepare a written contract correctly describing the terms and conditions within 14 days of commencement of employment.16 However, where the contract is unwritten an obligation is placed on the employer to explain the contents to the worker.17 Moreover, if the employee requests a written contract he must be so provided within one month of a written application.18 It should be noted that any term in a written contract that purports to include a standard that is lower than that stipulated in the Code will be null and void.19 The written contract must be delivered to the employee for inspection and thereafter shall be signed, incorporating any amendments made by the parties and a copy given to the employee,20 and any subsequent change to the contract must be evidenced in writing.21 Thirdly, the First Schedule to the Code enshrines the particulars to be included in the contract. They should contain basic terms, which are similar to those noted in the Belize and Bahamas equivalent. In addition to these provisions, the schedule mandates that the contract should note any probationary period,22 normal hours of work and rest periods, 13 14 15 16 17 18 19 20 21 22 (1998) 3 Bz LR 235. s 12 (1). s 12 (5). s 13 (1). s 13 (3). s 14 (1). s 13 (4); also it is a criminal offence to include a false material particular in the contract with the sanction of a maximum fine of $10,000. s 15. s 17. In relation to probation s 12 (6) provides that where an assessment of the worker must be undertaken during the period of probation the result should be communicated to the employee at the end of the period. Chapter 4: Terms of the Employment Contract 113 leave entitlements, provisions for termination not specified by the Code, provisions for pensions or National Insurance and other terms or conditions that are agreed by the parties. This statute reflects an attempt to comprehensively address the issues that may arise in relation to the employment contract, while leaving room for the parties to negotiate some terms independently. It may properly be described as moderate and a fair balance of the competing interests of the employer and employee. The Labour Contracts Act of Dominica, 1983 Under this statute a more progressive approach is also discernible. The trend of requiring a written contract is adopted but, where work begins without one, the employer must prepare one no later than 14 days from the date on which the employment commences.23 This may be contrasted with the one month’s grace period extended in Belize24 and St. Lucia.25 Section 4 elaborates on the procedure involved when signing a labour contract. The provision obliges the employer to deliver the contract to the employee forthwith for his inspection. Thereafter, the contract, including any agreed amendments, must be signed within three days and a copy given to the employee. The mandatory contents of the contract are also extended and refined. In addition to the names of the parties, date of commencement, rate of pay, work hours, annual leave, sick leave, and the length of notice that the employer must give to terminate the contract, the following terms have been added: • • • • • a description of the duties of the employee;26 intervals at which the employee will receive his pay, being intervals not exceeding one month in duration;27 the period of time during which the employee will be on probation;28 the rate of pay that the employee is entitled to receive for hours worked by him in excess of or outside normal working hours;29 the maternity leave to which the employee is entitled and the pay that she is entitled to receive during the period of her maternity leave.30 It may be argued that the framework of this formulation is so specific that it is restrictive as it effectively dictates all the key terms and conditions of the employment contract.31 Nonetheless, Section 5 (3), which provides that ‘if an employee is not entitled to any one or more of the benefits or terms mentioned in subsections (1) or (2), the labour contract respecting his employment shall specify each benefit or term to which he is not entitled’, could be viewed as an attempt to introduce some level of flexibility. While it is not generally desirable to use legislation to impose contractual terms through the back door, the Labour Contracts Act of Dominica 23 24 25 26 27 28 29 30 31 See s 3 See s 50 of the Labour Act of Belize, Chapter 297 of 2000. See s 14 (1) Labour Code St. Lucia, Act 37 of 2006. See s 5 (1) (c). See s 5 (1) (e). Payment intervals are mentioned in the St. Lucia Labour Code (First Schedule); however, no time limitation is specified. See s 5 (1) (f). The matter of probation is addressed in s 12 (6) and the First Schedule to The Labour Code of St. Lucia. See s 5 (1) (h). See s 5 (2). Note also the schedule headed ‘Basic Labour Contract’, which is a model agreement consisting of 23 paragraphs. 114 Commonwealth Caribbean Employment and Labour Law demonstrates an apparent intent to fetter the freedom of parties to contract. Presumably this was deemed a necessary evil to address the mischief of unequal bargaining power in the workplace. Antigua and Barbuda Labour Code, Chapter 27, 1975 The Antigua and Barbuda Labour Code Division A,32 which is a declaratory division, provides an extensive explanation of the national policy underlying the Code. In particular, it states that employers should compete on the basis of managerial efficiency and ability rather than on the basis of their employees’ working conditions; the employment conditions of workers should be those that enable them to provide for themselves and their families with the amenities of life to which all human beings are entitled and which serve to preserve their health, safety, and welfare, and to prevent industrial accidents.33 It is against this background that Division C, which imposes terms in relation to commencement and termination of employment, is framed.34 The requirement that an employee be furnished with a written statement of his responsibilities, remuneration, details of probation, vacation privileges and hours of work is reiterated.35 However, the Code goes further, making it unlawful for an employer to offer, and for an employee to accept, employment under terms and conditions that do not conform to the Code’s provisions.36 Any individual employment contract that establishes conditions that fall below the minimum employment standards established by the Code shall be null and void.37 Another novelty is the obligation placed on the employer to provide the employee with a copy of the current agreement between the employer and the trade union setting out the working conditions, where one exists.38 Barbados Employment Rights Act, Act 9 of 2012 (Proclaimed April 15, 2013) This recent legislation has now inserted into Barbadian law an obligation on employers to provide workers with a written statement of particulars prior to or immediately upon the commencement of employment.39 The basic provisions such as names, addresses, date of commencement of employment, periods of continuous employment, job title and description, rate of pay and manner of calculation, pay intervals and normal working hours must be included in the statement. Also required are information regarding period of probation (if any), notice requirements, locations where the employees are expected to undertake duties, the existence of any collective labour agreement that directly affect the worker’s terms and conditions, holiday entitlements, incapacity for working because of sickness or injury, health and pensions schemes.40 The Act mandates that the statement should also indicate any internal disciplinary rules that apply to the employee or make a causal link with any other document that contains these terms, while referring to the Standard Disciplinary Rules set out by the Fourth Schedule to the 32 33 34 35 36 37 38 39 40 The Antigua and Barbuda Labour Code is divided into 11 divisions lettered A-K. Ibid. See A2-A4. Antigua Public Utilities Authority v Barriero Civil Appeal No. 9 of 1992 (unreported) delivered June 6, 1994 [AG 1994 CA 8]. C.59 and C.60 of the Labour Code regulate whether termination is fair or not. An implied term in the contract was that employment could be terminated by giving one month’s notice. The appellant’s reason for termination was not a reason under C.60, thus dismissal was unfair. Ibid. See C5. Ibid. See C6. Ibid. See C7. Note also C4 which is a safeguard provision against discrimination. Ibid. See C5. s 13 (1). s 13 (2). Chapter 4: Terms of the Employment Contract 115 Act.41 Additionally, the particulars must advise the worker to whom a grievance may be raised in relation to his employment, or regarding dissatisfaction with the disciplinary decision made against him,42 the manner in which an application can be made and what steps may be taken as part of his application and make accessible any document that clearly explains these steps.43 If, subsequent to the particulars being provided, any changes are made, the employer is duty bound to deliver a written statement of the change no later than 30 days thereafter.44 It is submitted that these statutory requirements are intended to protect the worker by ensuring as far as possible that the salient requirements underpinning employment contracts are transmitted to the employee, without necessarily imposing a sensu stricto contract itself as is the case in St. Lucia and Dominica. The Act goes further to endow an aggrieved employee with the right to approach the tribunal seeking a determination of the appropriate particulars to be inferred if the employer neglects to or only partially produces the statement.45 When the tribunal determines the complaint the declaration is deemed to be the statement that should have been received by the employee.46 However, a claim for such a declaration must be made within three months of termination of employment or any such longer time as the tribunal may determine is reasonable in the circumstances.47 EXPRESS TERMS IMPLIED BY LEGISLATION Other statutory instruments may have implications for locating the terms of the employment contract. This was illustrated in Auguste v Attorney General,48 where it was necessary to construe the St. Lucia Teachers Pensions Ordinance as amended (No 26 of 1986) in order to discern whether the employee could be classified as a teacher or a public officer within the scope of the Ordinance and thus be entitled to retire at 60 years. Beyond questions of construction of the employment contract, express terms affecting the conditions of employment may be imported into the employment contract by legislative sanction. Wages A standard feature of the Commonwealth Caribbean employment legislation landscape is statutory provision for the payment of wages. The Barbados Protection of Wages Act49 stipulates inter alia that wages shall be paid in legal tender, and agreements that purport to require the worker to spend his wages at a specified place, or in a specified manner or with a specified person shall be unlawful.50 This provision has now been buttressed by the provisions of the Employment Rights Act51 that now mandates the employer must provide a written itemised pay statement that must include the gross amount of wages, amount of deductions made and their purpose, the net wages and the date of pay periods.52 41 42 43 44 45 46 47 48 49 50 51 52 s 14 (1) (a). s 14 (1) (b). s 14 (2) and 14 (3). s 15 (1) and (2). s 19 (1). s 20 (1). s 21. Civil Suit No. 713 of 1999 (unreported) delivered November 1, 1999 [LC 1999 HC 5]. Chapter 351, 12 November 1951. Ibid. See ss 4 and 5. A similar provision is also to be found in the St. Lucia Labour Code (Division 5) ss 38 and 39 that provided comprehensive guidance on the issue of wages. s 17 (1) Employment Rights Act. s 17 (2) Employment Rights Act. 116 Commonwealth Caribbean Employment and Labour Law In relation to the payment of wages itself, a similar approach to that of Barbados is taken in Dominica’s Protection of Wages Act,53 Belize’s Labour Act54 and St. Christopher, Nevis and Anguilla’s Protection of Wages Ordinance55 and the Trinidad and Tobago Truck Act.56 The Minimum Wage Act of Jamaica57 goes further by empowering the Minister of Labour with the discretion, subject to the advice of the Minimum Wage Advisory Commission,58 to make an order regulating the hours of work and other terms and conditions of employment or service in relation to any minimum rates of wages.59 Similar provisions can also be found in the Trinidad and Tobago Minimum Wages Act.60 This may be viewed as negative reinforcement of acceptable base line remuneration in the sense that criminal punishment will be exacted for failure to comply.61 On the converse, positive reinforcement could have been a reward for outstanding ceiling remuneration above which the employer would be entitled to fiscal concessions or tax breaks. In any event, it seems the legislature’s persistent gaze at the bottom has unwittingly disenfranchised workers of their bargaining power to negotiate their services at the natural intersection of demand and supply for labour. Vacation leave and sick leave Paid time off from work is now a well-enshrined feature in most employment contracts. It is normal practice for the employer to determine when an employee may proceed on vacation leave,62 having regard to whether or not the employee qualifies for leave under the terms of the contract, which should at least reflect the minimum statutory requirement, the specific period requested by the employee, and the ability to efficiently continue business operations during the employee’s absence. It is also not uncommon for the employer to pay the employee for any sick leave entitlement that remains unused at the end of the qualifying period, although the employee is not entitled to it.63 Despite the propensity for abuse,64 it is generally accepted that sick leave and vacation leave are critical to the continued performance and well-being of the employee.65 Commonwealth Caribbean legislators have also acknowledged this fact. 53 54 55 56 57 58 59 60 61 62 63 64 65 23 November, 1961. See ss 3 and 4. 1 August 1960, Part X, ss 95-97. 23 February 1967. Cap 88:07, 1 January 1920. 22 December 1938; Act No.45 of 1974. Similar provisions may be found in the Minimum Wage Acts of Trinidad and Tobago s 3; Bahamas ss 4 and 5. This Commission is established under the Act to assist the Minister in making minimum wage determinations. See s 4. This includes fixing different minimum rates of wages for workers employed in different categories of establishments engaged in the same occupation. He may also direct that, notwithstanding that the order fixes a national minimum wage, the national minimum wage shall not apply to any category of workers, or to workers in any area specified therein, or shall apply to such workers subject to such conditions or modifications as may be specified therein. See ibid. s 3. Cap 88:04, Act 35 of 1976 (as amended). Ibid. See s 5. The employer is liable to face summary conviction before a resident magistrate who will determine a penalty in the first instance in addition to a fine for each day that the monies remain unpaid. See King v National Sport Council Suit No. 857 of 2008 (unreported) delivered May 8, 2008 [BB 2009 HC 17]. See Kirkaldy, G. [2000] Labour Relations Handbook; Questions? What’s Yours? HKA Publications Kingston Jamaica, p. 65. Cowell, N. M. (1992) in his article ‘A Prescription for Sick Leave’, Caribbean Labour Journal, Vol. No.2, Summer, at p. 35, posits that ‘one of the major reasons for this difficulty is that sick leave is not viewed by many employees as cheating or dishonesty’. See ILO standards outlined in Convention 123 Holiday with Pay (Revised) 1970 where the minimum amount of vacation leave per year is set at three weeks. No Commonwealth Caribbean country has ratified this Convention. Chapter 4: Terms of the Employment Contract 117 The Antigua and Barbuda Labour Code66 provides for a statutory right to leave privileges in the categories of public holiday,67 sick leave68 and vacation leave.69 It is significant that the legislation underscores that these leave entitlements accrue consecutively and the employee cannot be mandated to take them cumulatively. Noel Cowell argues that this approach lends itself to employees ‘taking a day’. He suggests that the North American ‘omnibus approach’, which contemplates the merging of the minimum statutory sick leave with vacation leave under a single rubric of paid time off, lends itself to a more satisfactory result for both parties. Conceptually, ‘if sick time is taken when it should not be, the employee will have less vacation to look forward to and since vacation time would usually be valued highly, the hope is that workers would take their time off in regulated, predictable and convenient blocks, rather than in little driblets over time’.70 Nonetheless, it has remained the trend in the region to make legislative provision for minimum periods of paid sick leave, which must be supported by a medical certificate,71 as well as vacation leave, which is calculated on the basis of a qualifying period of continued service and the number of days worked thereafter.72 Bahamas,73 Barbados,74 Belize,75 Jamaica,76 Guyana77 and St. Kitts and Nevis78 are noteworthy examples; all of which state unequivocally that any agreement between an employer and a worker which purports to exclude the operation of the statute shall be null and void.79 In Boyce v Brewster 80 the Barbadian Court of Appeal ruled that the provisions of the Holidays with Pay Act were incorporated into every contract of employment in Barbados and in so doing ensured that the employee is automatically seized of his statutory entitlement. The various analogous Acts throughout the region also make provision that the worker should not be given notice of termination during a period of vacation leave.81 This stipulation appears to be protecting the employee from reduction in their entitlement where the employee uses time for notice concurrently and thereby does not compensate the worker in lieu of notice or alternatively remunerate the worker for the period of the leave. In the recent Jamaican Court of Appeal decision of Cecil July v Kirk Hall 82 the issue of whether a worker could retroactively claim vacation leave pay upon his termination after over 19 years without being allowed to take vacation leave was addressed. The court responded favourably to the worker’s claim and in coming to their conclusions their Lordships expressed the view ‘… that what was required in keeping with the Order is for the employer to pay upon termination a sum of money equal to the holiday remuneration earned but not granted as if all the holiday were then being granted’.83 Thus, in this case, the statutory terms were construed to create the best possible outcome for the employee who was constrained by the employer 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 Division C part 2; C13-C20. Ibid. at C14 and C15. Ibid. at C16 and C17. Ibid. at C17. Ibid. Cowell, N. M. (1992) in his article ‘A Prescription for Sick Leave’, Caribbean Labour Journal, Vol. No.2 Summer, at p. 37. This is usually required after three consecutive days of absence. For example, see Jamaica Holiday with Pay Order s 8 (3) (b). This ranges from a qualifying period of six months continued service to one week’s leave per annum at a minimum. Note The Bahamas Employment Act No. 27 of 2001, Part IV s 13 (2) (a). The Bahamas Employment Act No. 27 of 2001, Part III s 11 and Part IV ss 12-15. Barbados Holidays With Pay Act, Ch. 348, ss 3 and 4. The Belize Labour Act, Part XI, ss 115-135. The Jamaica Holiday with Pay Act 1947; the Holidays with Pay Order 1973. The Guyana Holiday with Pay Act 1995. The St. Kitts and Nevis Holidays with Pay Act, No.19 of 1968. Such as s 7, Jamaica Holiday with Pay Act. (1996) 52 WIR 73. Such as s 4 (5) Jamaica Holidays with Pay Order. SCCA of 3 of 2011 (unreported) delivered January 28, 2011. Per Panton J at para 14. 118 Commonwealth Caribbean Employment and Labour Law from utilising the legislated entitlement and the employer would therefore not be allowed to benefit from this derogation. Maternity leave Statutory protection for maternity leave has been introduced throughout the Commonwealth Caribbean.84 Characteristic features of these statutes are: provisions for the grant of maternity leave to female employees, the prohibition against termination of their contracts of employment during such leave, and a bar on the employer requiring female employees to resign because they are pregnant. No support in favour of adopting the North American and European models that propound a gender neutral approach allowing for paternity leave and/or maternity leave has yet been manifested. Notably, however, there is provision for ‘Family Leave’ in respect of ‘family responsibilities’ in the Grenada Employment Act.85 Although sickness and death of a spouse or close relative are cited as valid reasons for a grant of family leave, maternity is omitted. Arguably, however, the definition of ‘family responsibilities’86 is wide enough to substantiate a father’s request for leave during or immediately following the period of his spouse’s maternity. As with sick leave and vacation leave, the employee must have been in continuous service for a specified period to be entitled to maternity leave: usually a year of employment with the employer to whom the request for maternity leave is made. There are limitations on the number of occasions that maternity leave can be claimed; this is usually for three births as distinct from three pregnancies.87 Further, although the international standard recommended by the ILO is 14 weeks,88 within the Commonwealth Caribbean maternity leave is generally no less than 12 weeks.89 Thereafter, if the employee wishes to extend the period of her leave, this usually necessitates a request for leave without pay at the employer’s discretion. Where the employer acquiesces to such a request, he cannot dismiss the employee during the extended period of leave without pay. The major challenge facing workers in relation to maternity leave is the issue of who should be responsible for paying remuneration during the period. Without the instrumentality of legislative compulsion employers are often reluctant to do so since it constitutes an added expense to their bottom line in not only paying the worker who is on leave but also to compensate a replacement. It is therefore unsurprising that in the Caribbean there would be resistance to edging the benefit up to the ILO standard as the economic fallout for the employer may be substantial. Compensation for workplace injuries Several Commonwealth Caribbean territories have Workmen’s Compensation Acts that provide generally that ‘if in any employment personal injury by accident arising out of and in 84 85 86 87 88 89 Barbados Employment of Women (Maternity Leave) Act 1976, Chap. 345A; Belize Labour Act, Part XV1 Maternity Protection, ss 177-181; Grenada Employment Act, Part VIII, ss 59-69; Jamaica Maternity Leave Act 1979; St. Kitts and Nevis Protection of Employment Act 1986, Part IV, ss 39-39; Trinidad and Tobago Maternity Protection Act, Chap. 45:57. Part VIII s 72. Ibid. at s 72 (3), ‘“Family responsibilities” may include but not limited to the following: sickness or death of spouse, sickness or death of a close relative or dependant person’. Arguably pregnancies that result in miscarriages would not count, provided no protracted leave request is made. Sick leave would be more appropriate in such a circumstance. See s 5 (2) (c) Jamaica Maternity Leave Act. C 183 Maternity Protection Convention (2000) Article 4 – the Convention also suggests 6 weeks’ compulsory post natal leave and additional leave in case of illness of the mother or child. For example, s 5 Jamaica Maternity Leave Act. Chapter 4: Terms of the Employment Contract 119 the course of the employment is caused to a workman, his employer shall be liable to pay compensation’.90 Prominent Caribbean scholar Kenny Anthony opined that: These Acts represented one of the earliest efforts to ameliorate the conditions of the Caribbean workers, following the 1938 labour upheavals across the region. As such, the Acts seek to protect workers from unconscionable employers who are tempted to deny liability for injuries suffered by workers in the course of their employment.91 These statutory provisions in no way obviate the employee’s common law right to an action in tort (negligence)92 for compensation where the injury suffered was due to the employer’s failure to provide competent staff,93 adequate plant and equipment,94 a safe system of work with effective supervision,95 and a safe place of work.96 It is significant to note that these duties have, by and large, been codified by the promulgation of Factories Acts/Occupational Safety and Health Acts across the region.97 It should also be noted that a breach of the common law duties is actionable by an individual employee as a breach of statutory duty98 to the extent that the impugned action constitutes a breach of a particular provision of the Factories Act.99 This is in addition to the breach of statutory duties under the Factories Act being a criminal offence actionable by the State. Notice pay The Bahamian Court of Appeal case of Smith v Snack Food Wholesale Limited100 provides an illustration of the primordial importance of legislation in deference to common law rules and the 90 Antigua Workmen’s Compensation Act 1961, Cap 377, s 3 (1); Bahamas Workmen’s Compensation Act 1965, Cap 245, s 3 (1); Dominica Workmen’s Compensation Act 1961, Cap 122, s 3 (1); Jamaica Workmen’s Compensation Act 1938, Chap 418, s 3; Montserrat Workmen’s Compensation Act 1962, Cap 323, s 3 (1); St. Kitts and Nevis Workmen’s Compensation Act 1961, Cap 354, s 3 (1); St. Vincent Workmen’s Compensation Act No. 22 of 1963, s 3 (1); Trinidad and Tobago Workmen’s Compensation Act, Cap 88:05, 1980, s 4 (1). 91 See Anthony, K. D. (1984) ‘Discrimination in employment benefits: public officers vs private sector employees’, UWI Student Law Review, Vol. 6, June, p. 16. He also notes that ‘Of course, the liability of the employer was only extended to the payment of monetary compensation’. 92 As enunciated in the seminal cases of Donoghue v Stevenson [1932] AC 562 and particularly Wilsons & Clyde Coal Co Ltd v English [1937] 3 All ER 628, [1938] AC 57 in the context of employment matters. Note also the dicta of Anderson J in Reid v Mobile Welding and Engineering Works Ltd (2007) Supreme Court of Jamaica, No.CL.2000 R-030 (unreported) delivered January 26, 2007 [JM 2007 SC 5]. These common law duties of the employer are non-delegable. See also Kodilinye, G. (2009) Commonwealth Caribbean Tort Law (4th Ed.), Routledge, at p. 137. 93 Ifill v Rayside Concrete Works Limited (1981) 16 Barb L R 193. 94 Forbes v Burns House Ltd Suit No. 432 of 1996 (unreported) delivered March 24, 2000 [BS 2000 SC 12]. 95 Bish v Leathercraft Limited (1975) 24 WIR 351; but contrast Osbourne Witter v Brinks Jamaica Limited (1992) 29 JLR 344, where the Jamaican Supreme Court held that an employer was not liable for an injury received by the plaintiff when a gunman attacked him while he was attempting to repair a defective car which was assigned to him. This was because the motor vehicle was not considered as part of the security system for the employment he was engaged in and the act of the gunman was not foreseeable. 96 Cranston v Mars Auto Parts Limited Suit No. CL 1996/C117 (unreported) delivered December 16, 2005 [ JM 2005 SC 116]. 97 Bahamas Health and Safety at Work Act 2002; Barbados Occupational Safety and Health Act 2005; Belize Factories Act 1942; Dominica Employment Safety Act 1983; Guyana Occupational Safety and Health Act 1997; Jamaica Factories Act 1943; St. Lucia Labour Code 2006; Trinidad and Tobago Occupational Safety and Health Act 2004. 98 The cause of action arises where the claimant is within the class of persons protected by statute, who sustains an injury which the law was intending to prevent, because the employer was in contravention of the legislation and the injury was caused by the breach. 99 For example, Aston Fitten v Michael Black Limited and Ken Henry (1987) 24 JLR 252, where the plaintiff was successful in a claim of breach of statutory duty for the employer’s failure to securely fence a ‘dangerous’ cement mixer that cut off his right arm. 100 SC Civil Appeal No. 45 of 2007 (unreported) delivered May 21, 2009 [BS 2009 CA 39]. 120 Commonwealth Caribbean Employment and Labour Law mutually agreed employment contract terms. The employee in this case was terminated by letter after 22 years of service. In accordance with Section 29 of the Employment Act 2001, the employer paid the employee the equivalent of 12 months’ salary or basic pay, as opposed to the employee’s common law right under Section 4 of the said Act that, it was argued, would have entitled her to a significantly higher sum of notice pay. The difference between the basic salary that was paid and the quantum that was claimed was in respect of monies attributed to loss of commission, group insurance and annual bonus. Basic pay, as defined by Section 2 (1) of the Act, does not include commissions and allowances or bonuses. Longly JA explained that ‘consideration may well have to be given to the operation of the doctrine of election when an employee has received his full benefits under the Act. He should only be permitted to pursue a claim at common law for greater rights and better benefits after he has been put to an election to abandon the compensation paid under the Act, otherwise the purpose for which the Act was passed to make a ready inexpensive formula available for calculating benefits would be lost in the mush of litigation.’ The Court of Appeal confirmed that the employee got all that she was entitled to under the Act, rejecting her claim that there was a common law right to commissions.101 The evidence revealed that had her claim been pursued under common law she would have been entitled to the equivalent of six months’ notice pay. It was held that the employee had to accept the payments made to her in accordance with the Act or pursue her common law claim; in any case she was not entitled to both. Similarly, in the case of Floral Fantasy v Bethel Brackin,102 the Eastern Caribbean Supreme Court was tasked with interpreting Section 25 (1) (a) of the Protection of Employment Act (Cap. 212) of the laws of St. Vincent and the Grenadines. The employer terminated the employee, giving her notice pay that was calculated from two years of employment in accordance with the Act. The employee argued that the calculation should have been done from the first year of employment. It was held that legislative intent is an inference that is inferred by looking at the ordinary meaning of the words and phrasing of the section: ‘When a time frame is given for a qualifying period, then the qualification must take place during the qualifying period. In the instant case, the qualifying period ends on the last day of the two-year period. The period for calculation of the severance pay is counted from the day following the last day of the two years.’103 EXPRESS TERMS INCORPORATED BY THE COLLECTIVE AGREEMENT Collective bargaining is the process by which groups of employees and employers (whether directly or through representative organisations) negotiate and settle by agreement the terms and conditions of employment.104 The resulting collective agreement is signed between the employer and the trade union on behalf of the workers. It has been suggested that the trade union in so doing does not act on behalf of the employee as his agent, but rather the trade union negotiates as its own principal.105 This raises the issue as to whether the collective agreement is binding as 101 The Court of Appeal distinguished Addis v Gramophone Co. Ltd [1909] A.C 488 and Bold v Brough Nicholson and Hall, Ltd [1963] 3 All ER 849 on the facts as in both cases there was a binding provision for the payment of commissions. 102 High Court Claim No.17 of 2012, the Eastern Caribbean Supreme Court, St. Vincent and the Grenadines (unreported) delivered July 5, 2012. 103 Ibid. at para 18. 104 See Chapter 7 on Collective Labour Law for a more detailed discussion on collective bargaining. 105 Shipping Association of Georgetown v Hayden (1975) 22 WIR 135. Chapter 4: Terms of the Employment Contract 121 against an individual employee who is not a party to the contract,106 indeed also whether the agreement is of any legal effect being a separate contract from the employment contract. Initially, this was resolved by a common law presumption that collective labour agreements are not legally enforceable on the parties.107 In the case of Half Moon Bay Hotel v NWU,108 Parnell J opined that: ‘A collective agreement is dependent on mutual trust and obligation free from any legal enforcement … Collective agreements are not legally enforceable because in the contemplation of the parties they were never intended to be enforced by order of Court but only by industrial action.’109 This narrow approach has since fallen into desuetude in the Commonwealth Caribbean where courts have adopted a more expansive view in favour of legal effect where there is an unequivocal written statement to the contrary. This was demonstrated in Shipping Association of Georgetown v Hayden110 where the Court of Appeal of Guyana held that the legal effect of an employment contract clause that incorporated the collective labour agreement was to make the parties bound and render the collective labour agreement enforceable. The modern common law position that there exists a sufficient degree of agency between the trade union and its members to empower the trade union to negotiate binding terms111 has been extended in some Caribbean Commonwealth territories through legislative reform mandating that collective labour agreements between employers and trade unions be regarded as legally enforceable, provided the agreements are registered with the relevant regulatory authority. Such is the case in Trinidad and Tobago,112 the Bahamas,113 St. Lucia,114 Grenada,115 Guyana116 and Antigua and Barbuda.117 The Court of Appeal of Trinidad and Tobago went a step further in the case of Texaco Trinidad Inc v OWTU.118 Pursuant to a reference made to it by the Minister of Labour, the Industrial Court purported to settle an industrial dispute involving tank wagon drivers by varying the terms of the registered industrial agreement. The decision was set aside by the Court of Appeal and it was confirmed that ‘the terms of a registered industrial (collective) agreement are intended to operate as a statutory code in relation to the rights and obligations of the parties and, accordingly, cannot be varied by the court during its continuance’.119 In the Commonwealth Caribbean, benefits negotiated under the collective agreement have traditionally been extended to non-unionised workers. In Scholar v Hess Oil Saint Lucia Ltd,120 there was evidence that it was mutually accepted by the employee and the employer that benefit agreements between the employer and the National Workers’ Union relative to the daily paid workers employed by the defendant would benefit non-union workers although they 106 The reply to this question in England was negative. See the recent decision of Malone v British Airways PLC [2011] IRLR 32 where it was held that the airline in reducing the number of cabin crew did not act in breach of contract as the provisions in respect of crew complements that formed part of the collective agreement were not intended to be enforceable by individual employees. 107 Note Lane J in Ford Motor Co v Amalgamated Union of Engineering & Foundry Workers [1969] 2 QB 303. 108 [1978] 16 JLR 206; [1979] 16 JLR 333. 109 See also JBC v NWU & Collington Campbell [1981] 18 JLR 11. 110 (1976) 22 WIR 135. See also Wiltshire et al v Grenada Ports Authority Suit No 636 of 1993 (unreported) delivered January 27, 1995 [GD 1995 HC 3]. 111 Note Harris v Richard Lawson Autologistics [2002] ICR 765; Lee v GEC Plessey [1993] IRLR 383; Singh v British Steel [1974] IRLR 131. 112 See Trinidad and Tobago Industrial Relations Act s 47. 113 See Bahamas Industrial Relations Act s 49. 114 See St. Lucia Labour Code. 115 See Grenada Employment Act 2000. 116 See Guyana Labour Act, Part VIII, s 30. 117 See Antigua and Barbuda Labour Code K 27 (1). 118 (1973) 22 WIR 516. 119 Ibid. Note also OWTU v T Geddes Grant (Trinidad) Limited TD No.24 of 1991 (unreported) delivered June 30, 1993 [TT 1993 IC 33].. 120 Suit No. 149 of 1984, (unreported) delivered July 3, 1987 [LC 1987 HC 3]. 122 Commonwealth Caribbean Employment and Labour Law were not party to such agreements. Nevertheless, when the plaintiff employee, who was nonunionised, claimed to be entitled to the benefit of the gratuity term in the collective agreement that applied to a wholly different class of workers to which the plaintiff employee did not belong, based on an alleged verbal promise, St. Lucia High Court refused to accede. The court held that it was not possible to imply such a term from the collective agreement into the plaintiff’s employment contract stating that there was ‘no doubt whatsoever that the defendant never agreed on gratuity as a term of their contract with the plaintiff’.121 In contrast to the employee in Scholar v Hess Oil Saint Lucia Ltd, the employee in Rudder v International Aeradio (Caribbean) Ltd122 received an undertaking from his employer in writing that he would enjoy no less favourable terms of employment than those employees who were unionised. The Court of Appeal of Trinidad and Tobago held that the terms of the letter were clear and unambiguous and guaranteed the employee benefits under the collective agreement albeit he was non-union staff. In an effort to guide the collective bargaining process on the question of mutually agreed terms that should be incorporated into the employment contract, Belize has made provision for employment standards under the Trade Unions and Employees’ Organisations (Registration, Recognition and Status) Act. The Supreme Court of Belize in the case of Perriott v Belize Telecommunications Limited123 explained that Section 5 of the Act delineated the employment standards that employers were bound to follow, which were higher than those established at common law. Section 5 of the Act provides, inter alia, that it is unlawful for an employer to threaten an employee with any disadvantage by reason of exercising any right conferred under the Act or under any collective bargaining agreement. The court cautioned that where a breach of the statute is alleged the evidential burden is on the employer to prove that he did not contravene Section 5. In this case the plaintiff was employed by the defendant company, Belize Telecommunications Limited, as a technician for 17 years. She was also a member of the Belize Communication Workers Union (BCWU). When she was relieved of her duties she claimed that there was no proper cause for so doing as the sole reason for terminating her contract of employment was because of her involvement in the activities of the BCWU. On the facts, the court ruled in her favour, ordering the employer to reinstate her with full employment entitlements and benefits. EXPRESS TERMS INCLUDED BY CUSTOM Reliance on custom requires proof that the custom is reasonable, well known, certain and unequivocally accepted by the parties.124 The collective agreement is perhaps the most obvious example. Professor Kahn Freund125 asserts that it is a crystallised custom that collective agreements are incorporated into individual contracts of employment by way of conduct even if the individual has no knowledge of the terms.126 In light of the harmonisation agenda being advanced by CARICOM and the ILO, and the fact that several employment issues are now guided by ILO Conventions and Model Laws, 121 Ibid. at p. 21. 122 (1989) 42 WIR 394; See also Suit No CLC 2005 of 2002 Ava Chambers v Holiday Inn SunSpree Resorts (unreported) delivered February 1, 2007 (Jamaica SC); confirmed by the Court of Appeal in Holiday Inn Jamaica Incorporation v Ava Chambers SCCA 23 of 2007 (unreported) delivered December 12, 2008. 123 Suit No. 142 of 2007 (unreported) delivered April 5, 2007 [BZ 2007 SC 4]. 124 See Jamaica Public Service v NWU et al. IDT No. 3 of 2003 (unreported) delivered August 29, 2003 [ JM 2003 IDT 10]; see discussion in Chapter 2. 125 See Kahn Freund, O. (1954) ‘Legal Framework’ pp. 42–147 in Flanders, A. and Clegg, H. A. (Eds) The System of Industrial Relations in Great Britain, Oxford: Blackwell. 126 See Hill v Levey [1858] ER 366 per Watson B. Chapter 4: Terms of the Employment Contract 123 it is conceivable that Commonwealth Caribbean courts would rely on them. In this sense, where these instruments have not been ratified and are therefore not binding, they may nonetheless be regarded as forming part of custom and thus very persuasive. Belize’s International Labour Organisation Conventions Act 1999 is significant as it confirms the jurisprudential weight to be given to ILO conventions, but also cautions that where there is a conflict between the Labour Act and the convention, the Labour Act shall prevail.127 TERMS IMPLIED BY THE COURTS This is usually done where the court finds that it is necessary to give meaning to the presumed intention of the parties128 or where it appears reasonable in the circumstances to do so129 in order to give business efficacy to the contract of employment.130 This more objective approach was applied in the Dominican case of Didier v Geest.131 Following the case of Mears v Safecar Security Ltd,132 it was reasoned that terms could be implied into a contract of employment as a question of fact and as a question of law and terms inferred as a question of law were deemed to be common law incidents of the employment relationship.133 Consider the stance that was taken in Hewlett v West Indies Oil Company Limited.134 The court held that the length of notice was a contractual term of the relationship between employee and employer. Here the appellant who worked under a contract of service was dismissed with one month’s notice. On the facts the contract specifically stipulated a period of notice and the court expressed that such a period must be taken to be what the parties considered to be reasonable notice for its termination. Dismissing the employee’s claim for wrongful dismissal Davis CJ stated: Regretfully … in my view the appellant was treated shabbily by his employers. I think it was an unreasonable term to insert in the contract that his employment could be terminated by thirty calendar days’ notice. For that category of employee thirty days’ notice is unreasonable and I should have thought that a period of three to six months would be reasonable when dealing with employees of that category. It leaves me to wonder whether Middleton would have accepted that term as part of his contract. Regretfully too, because I feel that had the plaintiff run his case along other lines his chances of success would have been good certainly as regards the question of reasonable notice. But, there it is, I must do justice in accordance with the law. This approach is reflective of the pervasive view that terms should not be implied into a contract of employment on the sole premise that it is reasonable to do so. The ‘business efficacy’ test has consistently been used as a yardstick – is it necessary to imply the term in order for the 127 See s 4 of the ILO Conventions Act. 128 See The Moorcock [1889] 14 PD 64; [1886-90] All ER Rep 530. ‘The test of implication by necessity’ was affirmed by Sir Denys Williams CJ in Bank of Nova Scotia v Emile Elias & Co Ltd (1995) 46 WIR 33. 129 Note Shirlaw v Southern Foundries Ltd [1930] 2 All ER 113. Here the court coined what is now referred to as the ‘officious bystander’ test. That is, although there was no express agreement, the conduct of the parties is such that it is obvious that they must have intended to be bound by the putative term. 130 National Commercial Bank Jamaica Ltd v Guyana Refrigerators Ltd (1998) 53 WIR 229; Note the caveat of Lord Salmon in Liverpool City Council v Irwin [1977] AC 239 that ‘the term sought to be implied must be one without which the whole transaction would become inefficacious, futile and absurd’. 131 Civil Case No. 184 of 1993 (unreported) delivered March 29, 1999 HC [MM 1999 HC 27]; Civil Appeal No 6 of 1999 (unreported) delivered October 25, 1999. 132 [1982] 2 All ER 865. 133 Note Wilson v Maynard Shipbuilding Consultants [1978] 2 All ER 78. Here the court held that it is a question of law, whether on the facts adduced in evidence, that an inference can be drawn in favour of the inclusion of a term into a contract. 134 Civil Appeal No. 9 of 1975 (unreported) delivered October 29, 1976 [AG 1976 CA 8]. 124 Commonwealth Caribbean Employment and Labour Law contract to make sense? A term should only be implied into the contract of employment if it is necessary to make the contract work. A similar conclusion was arrived at in the recent case of Reda v Flag Ltd,135 where it was held that it was unnecessary to imply a term in respect of reasonable notice. Here the appellant, a senior executive, had his contract of employment terminated in accordance with a contractual provision that gave his employers express and unrestricted authorisation to terminate the contract of employment without cause at any time during the contract period. The court declined to imply a term of trust and confidence thus deflecting the employers’ express power of dismissal without cause. On appeal to the Privy Council it was held that in the absence of an implied term of mutual trust and confidence, no breach was established and consequently no damages could be awarded. Whether they are express or implied terms, it seems the polemic is whether the law relating to contracts of employment is a lex specialis? When faced with the task of determining whether or not to imply terms into the employment contract, courts have demonstrated much reluctance to abandon long-standing contractual principles and common law rules of equity save for circumstances of absolute necessity. Conventional contract law requires strict enforcement of clear express terms on the premise that the parties entered into the contract freely and are ad idem in respect of those terms. The rigid application of commercial contract law rules to employment contract situations will more often than not result in a pairing that is unevenly yoked. A more pliable approach cognisant of the fluidity of employment contracts and the dynamism of the relationship is preferable if injustices are to be minimised and the scales held evenly between the employer and the employee. Accordingly, the courts have frowned upon the use of express terms by the employer to secure the sole discretion to unilaterally vary the terms of the contract; they have narrowly interpreted sweep up clauses that make reference to ‘any other duties that may reasonably be required of you’; and it remains to be seen if they will denounce the inclusion of clauses that purport that ‘this agreement constitutes the entire agreement between us with regard to its subject matter, and supersedes any previous agreement whether verbal or written made between us at any time’. Undoubtedly, this line of reasoning lends credence to the need for legislative intervention. However, the sample of Commonwealth Caribbean statutes cited above reveal so many disparities and it is therefore apparent that the problem has not been resolved by legislative intervention. The interpretation role of the courts has not fallen into obsolescence; rather, it has been duplicated as both the employment contract and the relevant legislation must be construed concurrently. IMPLIED TERMS IN RESPECT OF THE EMPLOYER It is settled employment law practice that the contract of employment implicitly imposed certain contractual obligations on the employer vis-à-vis his employee. These include a duty to pay wages, a duty to provide work, a duty to maintain trust and confidence, the duty to provide a safe and healthy work environment, and a general duty to act in good faith. The duty to pay wages It is possible to view wages as fair consideration for services performed by the employee under the employment contract. By extension, it can be inferred that the employee’s failure to perform 135 [2002] 61 WIR 118. Chapter 4: Terms of the Employment Contract 125 or to perform satisfactorily would justify the employer deducting wages proportionately to offset the diminished returns on the agreed bargain. The extent to which the common law has adopted this line of reasoning may be examined. Miles v Wakefield Metropolitan District Council136 is authority for the view that an employee is not entitled to remuneration under his contract of employment unless he is willing to perform the obligations stipulated therein. Here the court held that the employee who refused to work on Saturdays, contrary to the employment contract, was not entitled to a salary for those days. Likewise, in Sim v Rotherham Metropolitan Borough Council137 the court held that the employer was entitled to deduct a proportionate amount from the employee’s salary to offset the employee’s failure to work for colleagues during their time off in breach of the employment contract. The duty to provide work The provision of work is an essential part of the bargain underpinning the employment contract. Consequently, an employer who does not give his employee sufficient work will not be exculpated from his duty to pay wages. This was underscored in Devondal v Rosser & Sons138 where the court ordered the employer to pay damages to his employee for breach of the implied duty to provide work during the period between the closing of the operations of the business and the expiration of the employee’s notice. It is unclear whether an employer who pays an employee but keeps her idle will be held liable for breach of this implied duty. The court in Turner v Swandon139 considered the nature of the actual work of the employee in making this determination. The plaintiff in this case was a salesman. It was held that the employer was not under a duty to provide the plaintiff with actual work as long as his salary was paid, even if he was at times idle. In contrast, William Hill Organisation Ltd v Tucker140 is authority for the view that the employer will be liable if by so doing the employee is prohibited from seeking gainful employment elsewhere. Here the employee, a senior member of staff, was placed on garden leave thus preventing her from taking up other jobs. Nonetheless, periods of lay off and suspension have negative implications for the exercise of this duty. Arguably, the employer’s responsibility to provide work is waived provided there are justifiable reasons to lay off or suspend the employee. The case of Holder v Caribbean Air Cargo141 is instructive. The employer was unable to show that he had reasonable grounds for suspending the employee. Further, there was no justifiable basis for the subsequent dismissal of the employee who was acquitted of the imputed criminal charges that had given rise to his suspension. The court held that after the initial suspension the employer was estopped from following through with a dismissal while the outcome of the criminal case remained unresolved. The duty to provide a safe and healthy work environment This long standing common law duty has been buttressed by statutory provisions throughout the region as stated above.142 There are a multiplicity of public policy concerns that have underpinned this duty: ensuring that the responsibility for safety and health in the workplace 136 [1987] AC 539. 137 [1986] 3 All ER 387. 138 [1906] 2 KB 728. 139 [1901] 2 KB 653. 140 [1998] IRLR 313. 141 Suit No. 719 of 1983 (unreported) delivered June 8, 1984 [BB 1984 HC 32]. 142 See p. 118. 126 Commonwealth Caribbean Employment and Labour Law is assigned; imposing sanctions for failure to implement proper measures to implement safety and health; creating minimum standards at the work place to avoid inhumane and unjust working conditions and, where injury occurs in the course of the employment, protecting the employee’s right to compensation. A delicate balancing act between imposing primary responsibility for safety and health on the employer, who is the party presumed to be most able to assume it, and requiring the employee to take a more vested interest in his own safety is required. Potentially, an employer could simultaneously face several claims in the alternative for employers’ liability, occupier’s liability, vicarious liability, and breach of health and safety related legislation. Accordingly, it has become common practice for employers to incorporate terms in the employment contract restricting their liability and to subscribe to insurance schemes that will safeguard them against this kind of liability.143 It is significant that the common law has evolved to extend the reach of this duty to encompass mental health and safety. In a 3-2 majority, the House of Lords in White v Chief Constable of South Yorkshire144 declined to make an award of damages for psychiatric injury claimed by the police officers who were on duty during the Hillsborough football stadium tragedy. This was in keeping with the earlier decision of Alcock v Chief Constable of Yorkshire145 where the House of Lords refused to give compensation for the psychiatric injury suffered by the relatives of the Hillsborough victims. In White the court accepted that for the purpose of the claims the police officers were employees, not rescuers.146 Lord Steyn opined that it was non sequitor to assert that because an employer is under a duty to an employee not to cause him physical injury, there is an inescapable inference that the employer is under a duty not to cause the employee psychiatric injury; even where there is no physical injury from which the alleged psychiatric injury can be said to have evolved. Accordingly, the ordinary rules of tort on the award of damages for psychiatric injury should apply.147 This decision has been criticised as wrongly focusing on isolated incidents of nervous shock as a result of a specific disastrous event. Brenda Barrett in her article ‘Compensation for psychiatric injury: have their Lordships righted a wrong?’148 argues that their Lordships had no reason to consider situations in which the employee suffers mental illness as a result of long term exposure to stress: typically situations where the employer negligently requires the employee to carry an excessive workload over a period of time. ‘It would therefore be most unfortunate if White were deemed to cast doubt on the correctness of the Court of Appeal’s decision in Walker v Northumberland County Council.’149 In Walker, the employee, having suffered a nervous breakdown, was saddled with an excessive workload on his return to work. The court held that his employers were liable for breach of their obligation to provide a safe system of work as it was foreseeable that continued exposure to high levels of work would have an adverse effect on the employee.150 In McCabe v Cornwall County Council and Others,151 Lord Nicholls considered the distinction between claims by the employee for stress-related 143 Consider Lister v Romford Ice Company [1957] AC 555. 144 [1999] IRLR 110 (HL). 145 [1992] 1 AC 310. 146 Classifying them as ‘rescuers’ would have put them in the category of secondary victims in which case they would only be able to recover damages on proof that there existed some close tie or connection with the immediate victims. 147 That is, the plaintiff must have suffered a recognisable psychiatric illness and it must have been reasonably foreseeable by the employer. If, as in Page v Smith [1996] AC 155, the plaintiff is not a primary victim to whom the defendant is liable without special proof that this kind of injury was foreseeable, i.e. a secondary victim, he must show a close tie and connection in time and scope to the immediate victim and prove perception of sight, hearing or its equivalent of the event or its aftermath. See Lord Oliver at p. 197. 148 Barrett, B. (1999) ‘Compensation for psychiatric injury: have their Lordships righted a wrong?’ Industrial Law Journal, Vol. 28/issue 3, p. 263. 149 Ibid. 150 See also Barber v Somerset County Council [2004] 1 WLR 1089. 151 [2004] UKHL 35 at para 29. Chapter 4: Terms of the Employment Contract 127 illness caused by dismissal, versus stress-related illness as a result of the employer’s conduct leading up to dismissal. In his view, the employee has a common law cause of action that precedes dismissal where there is evidence that the onset of illness was caused by pre-dismissal unfair treatment. This is independent from any right the employee has to bring a statutory claim for unfair dismissal and damage caused by the dismissal itself.152 The duty to maintain trust and confidence This duty may be described as synonymous with the principle of good industrial relations practice. Lord Nicholls in Malik v BCCI153 asserted that the most central term of the contract of employment is undoubtedly the implied term of mutual trust and confidence, which from the perspective of the obligations imposed upon the employer has been expressed as a duty upon the employer not, without reasonable and proper cause, to act in such a way as would be calculated or likely to destroy or seriously damage the relationship of trust and confidence existing between the employer and its employees.154 In this case, the employee’s position was made redundant after the bank at which he worked was closed, following the discovery of fraudulent activities being carried on by its management, of which the claimant was unaware. The employer was responsible for the worker’s loss of reputation by making them associate unknowingly with fraudsters. The court held that he was entitled to recover damages for the financial loss he suffered as a result of the breach of the employer’s implied obligation of trust and confidence which significantly jeopardised the employment relationship and his ability to find future employment. Seemingly, most traditionally implied terms could be harnessed into this genus of trust and confidence. The employee should be able to trust and confidently rely on the employer’s undertaking to provide work in a safe and healthy work environment; pay his salary; take reasonable care to prevent abuse, intimidation and sexual harassment; promote equality; maintain his right to privacy and confidentiality; and generally to deal fairly with him and provide for his economic security by carrying out his obligations under the employment contract in good faith. Lord Steyn in Johnson v Unisys Limited155 described the duty of trust and confidence as ‘an overarching obligation implied by law as an incident of the contract of employment’. Indeed, it has been suggested that: the implied term of trust and confidence may, and in some cases, ought to, develop to the extent that it becomes broad enough to absorb the more “traditional” implied terms. If such a process occurs, then the implied duty of mutual trust and confidence would emerge as a form of “superprinciple”, forming an umbrella over which each of the traditional types of the employer’s implied duties would rest.156 In Johnson v Unisys Limited, the court considered the employee’s claim that he was dismissed without a fair hearing and in breach of the disciplinary procedure. The court ruled that a determination of whether the employer had breached his implied obligation of trust and confidence in this way could only be arrived at by reading the implied term in a manner consistent 152 Note Barrett, B. (2004) ‘Recent Cases – Notes - Employer’s liability for stress at the work place: neither tort nor breach of contract’, Industrial Law Journal (2004) 33(4): 343. 153 [1998] AC 20. 154 Ibid. at p. 35. 155 [2001] IRLR 279 at 284 para 24. 156 See Cabrelli, D. (2005) ‘The implied duty of mutual trust and confidence: an emerging overarching principle?’ Industrial Law Journal, Vol. 34 No. 4, December, 284 at 287. Support for this view may be found in Freedland, M. R. (2004) ‘The personal employment contract’, 33 ILJ 87. 128 Commonwealth Caribbean Employment and Labour Law with the express terms of the contract of employment. On the facts, the employee failed to establish his claim and was thus unable to recover damages. Taking reasonable care to prevent abuse and intimidation The common law position as stated by the court in Palmanor Ltd v Cedron157 is that where an employer uses blatant, foul and abusive language against his employee this amounts to a breach of the implied term of trust and confidence and a repudiation of the contract of employment. It was noted in Cantor Fitzgerald International v Bird158 that it is irrelevant that the use of expletives was commonplace in the trade. Further, the court ruled in Horkulak v Cantor Fitzgerald International159 that it is particularly damning where the employee is not given an opportunity to respond, or is given a public reprimand, as was seen in Morrow v Safeway Stores Plc.160 Sexual harassment Wood v Freeloader Ltd161 is authority for the view that where an employee has been seduced and undue sexual influence has been exerted this amounts to a breach of the implied duty of trust and confidence. Here it was held that the employee was entitled to claim constructive dismissal on the ground that, by entering a lesbian relationship with the employee, the defendant brought about an intolerable situation. Promoting equality In Transco plc v O’Brien162 the employer was held to be in breach of the implied duty of trust and confidence for denying the employee the opportunity given to all other permanent employees of signing a new contract of employment with enhanced redundancy terms. Note, however, the decision of Bridgen v Lancashire County Council163 which suggests that this does not extend to an inference that there is an implied obligation toward equal pay. Maintaining the right to privacy and confidentiality The case of Halford v UK164 considered the overlap between employment law and international law in respect of an individual’s right to privacy. Here the employer intercepted phone calls at the employee’s home and office in order to gather information to be used in proceedings against her. The employer was held to be in breach of the employee’s right to private life and correspondence provided for under Article 8 (1) of the European Convention on Human Rights. Other countries across the Commonwealth Caribbean are signatories of The United Nations Universal Declaration of Human Rights165 and have entrenched constitutional Bills of 157 [1978] IRLR 303. 158 [2002] IRLR 867. 159 [2003] EWHC 1918 (QB). 160 [2002] IRLR 9. 161 [1977] IRLR 455. 162 [2002] ICR 721. 163 [1987] IRLR 58. 164 [1997] IRLR 471. 165 1948 at Article 12. Article 12 which mirrors Article 8 (1) of the European Convention of Human Rights states: ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.’ Chapter 4: Terms of the Employment Contract 129 Rights in this respect. This was acknowledged by the Caribbean Court of Justice in the recent landmark decision of Shanique Myrie v The State of Barbados.166 The court, in considering the claimant’s plea for damages in respect of alleged breaches of human and fundamental rights, underscored the significance of this inalienable right.167 By extrapolation, when an employee travels to work he takes his human rights with him; he does not leave them at home. Recognition of the employees’ human rights is therefore unavoidable, even for CARICOM member States who are not signatory to international treaties on human rights or have no Bill of Rights, as they are nonetheless bound by this authoritative precedent emanating from the CCJ in its original jurisdiction. Generally to deal fairly This would include refraining from making unsubstantiated allegations that might jeopardise the employee’s future employment prospects. This was successfully argued as a breach of trust and confidence in Robinson v Crompton Parkinson.168 It was held in TSB Bank plc v Harris169 that misleading and destructive references given in respect of the employee are likewise a breach of the employer’s implied duty of trust and confidence. Fair dealing also contemplates the establishment of internal dispute resolution mechanisms. Thus in WA Gold v McConnell170 the employee’s resignation was deemed justifiable as the employer failed to provide and implement a grievance procedure. This amounted to a breach of the implied duty of trust and confidence and entitled the employee to claim constructive dismissal. The duty to provide for the employee’s economic security If the employer fails to demonstrate some measure of concern for the employee’s economic security he may find himself responsible for the subsequent pecuniary loss suffered by the employee. This was illustrated in Scally v Southern Health and Social Services171 in respect of pension entitlements that were foregone and Marlow v East Thames Housing Group Ltd172 in respect of negotiating the benefits of insurance premiums in favour of employees. Carrying out obligations under the employment contract in good faith Although it is difficult to determine when this requirement will be imposed by the courts, it is generally expected that the employer will exercise his obligations and discretionary prerogatives under the employment contract in good faith. Thus in Imperial Group Pension Trust v Imperial Tobacco Ltd173 it was held that an employer cannot give a blanket refusal to consider increases to a pension scheme to the extent that this evinced bad faith. Also to be taken into account is the employer’s discretion to make decisions in relation to employee share options. In Mallone v 166 CCJ Application No. OA 2 of 2012, [2013] CCJ 3 (OJ). 167 The court, in considering the claimant’s plea for damages in respect of alleged breaches of human and fundamental rights, underscored that it had no authority to consider such an award in its original jurisdiction. It instead awarded damages for breach of the right to travel in the CARICOM Community without harassment or impediment. See ibid. at para 100. 168 [1978] ICR 401. 169 [2000] IRLR 157. 170 [1995] IRLR 516. 171 [1992] 1 AC 294. 172 [2002] EWHC 1460 (QB). 173 [1991] IRLR 61. 130 Commonwealth Caribbean Employment and Labour Law BPB Industries Ltd174 the employer was deemed not to have exercised his discretion in good faith where a decision to pay the employee a reduced sum in respect of an executive share option was premised on an allegation of the employee’s poor performance. An employer is also bound to rationally exercise his discretion when determining what constitutes excessive work hours. In this regard, an employer acting in good faith will not be prevented from making shift changes even where, as in Hussman Manufacturing v Weir,175 this resulted in a decrease in the employee’s salary. Contrast the case of Johnstone v Bloomsbury Health Authority.176 Here the court found that the duty of trust and confidence had been breached as the injury suffered by the employee was foreseeable given the excessive work hours to which the employee had been subjected.177 IMPLIED TERMS IN RESPECT OF THE EMPLOYEE As with the employer, employees are also bound by certain implied terms or duties attached to the employment contract, to promote balance and equity in workplace relationships. These include the duties to obey reasonable and lawful orders, to co-operate with the employer, to exercise reasonable care and skill, and a duty of fidelity and to act in good faith. Duty to obey reasonable and lawful orders Macari v Celtic Football & Athletics Ltd178 confirmed that this duty is predicated on the employee’s undertaking to be bound by the employment contract rather than on the employer’s compliance with reciprocal employment contract. Here, Macari, who was the manager of the football club, was held to be in material breach of his contract of employment when he failed to comply with the lawful and legitimate instructions of his employer to abide by a contractual residence clause. Despite the fact that the employer was likely to be in breach of his duty of trust and confidence, acts of bad faith were insufficient to obviate the employee’s duty to obey reasonable lawful orders of his employers; if he continues to work he continues to be bound. It was confirmed in Didier v Geest Industries Ltd179 that dismissal on the grounds of breach of duty to obey reasonable and lawful orders requires wilful disobedience or there must have been a repudiation of an essential condition of the employee’s contract of employment. Walking out of the manager’s office at the behest of a supervisor was deemed not to be wilful nor a deliberate repudiation of an essential condition in Laws v London Chronicle.180 On the contrary, in OWTU v Caribbean Packaging Industries Ltd181 the employee’s refusal to obey an order to remove items from one storage area to another in her employer’s factory was found to be wilful. The court held that the employer’s request was lawful, reasonable and within the scope of the employee’s duties. The reason advanced by the employee for refusal to comply was that the task posed a danger to her health. In light of the employee’s compliance with similar orders in the past, the court concluded that her explanation was unfounded and ratified the employer’s disciplinary action against her. It should, however, be noted that the duty to obey orders does not extend 174 [2002] ICR 1045. 175 [1998] IRLR 288. See also the commentary of Cabrelli, D. (2007) ‘Discretion, power and the rationalisation of implied terms’ ILJ Vol. 36, No.2, June, p. 194. 176 [1992] QB 333. 177 See also Walker v Northumberland County Council [1995] IRLR 35. 178 [1999] IRLR 87. 179 Ibid. 180 [1959] 1 WLR 698. 181 TD No. 40 of 1996 (unreported) delivered July 25, 1996 [TT 1996 IC 52]. Chapter 4: Terms of the Employment Contract 131 to unlawful acts; thus, in Morrish v Henleys (Folkestone) Ltd182 the employee’s refusal to be complicit in the virtual stealing of the employer’s property on the instruction of a manager was held to be proper and his dismissal on that ground was unfair. Duty of cooperation and mobility clauses The duty of cooperation of the employee and the duty of mutual trust and confidence of the employer are two sides of the same coin. Central to both is the concept of promoting the most efficient execution of the contract of employment and guiding one’s actions and inactions by good faith. This was illustrated in Secretary of State for Employment v ASLEF (No. 2)183 and Sim v Rotherham Metropolitan Borough Council184 where employees in both cases refused to work overtime. These cases also highlight that motives such as industrial action or the refusal to cover for an absent co-worker will not diminish the employees’ duty of cooperation. An example of inaction was seen in the case of Cresswell v Board of Inland Revenue185 where employees refused to collaborate with their employer when he introduced a new computer-based system. Similarly, in Jarvis v Liat (1974) Limited,186 a temporary employee, after four months in the post, objected to the terms and conditions, contending that the post should be permanent. The employer interpreted the refusal to sign as a repudiation of the appointment and reassigned the employee to his former status. The employee claimed that the employer committed a breach of contract and that he was entitled to reinstatement and compensation for the losses. Dismissing the employee’s claim, the court held that, since there was no valid contract, the promotion of the employee was null and void, thus the return to his former position could not be the basis for an award.187 A comparison of the approach taken in respect of mobility clauses is instructive. Courts have shown an unwillingness to interpret mobility clauses against the employee unless obedience of the clause is needed to advance business efficiency. Accordingly, in Aparau v Iceland Frozen Foods Plc,188 a cashier who refused to abide by a mobility clause was within her right to repudiate the contract and claim constructive dismissal. Seemingly, however, the question is far from settled in the Commonwealth Caribbean. In Blackburn v LIAT189 the mobility clause mandated the employee, who was a pilot, to transfer from Barbados to Antigua. The court concluded that the clause was necessary to give business efficacy to the provisions related to the employee’s salary, which reflected the different standards of living in each country. Accordingly, it was held that the clause was enforceable by the employer as against the employee. Duty to exercise reasonable care and skill The employee also has a duty to perform his obligations under the employment contract with reasonable competence, care and skill. This duty extends to taking proper care of the employer’s 182 [1973] 2 All ER 137. 183 [1972] 2 QB 455. 184 [1987] Ch 216. 185 [1989] ICR 508. 186 Suit No. 18 of 1998 (unreported) delivered November 11, 2004 [AG 2004 IC 9]. 187 See also Ticehurst v British Telecommunications [1992] ICR 383 which was decided on similar facts. Here the court concluded that the employee’s refusal to sign the new agreement evinced an intention not to perform the full range of contractual duties. 188 [1996] IRLR 119. 189 Eastern Caribbean Supreme Court Civ. App No. 31 of 2004 (unreported) delivered September 16, 2008 [AG 2008 CA 5]; see also United Kingdom Atomic Energy Agency v Claydon [1974] IRLR 6. 132 Commonwealth Caribbean Employment and Labour Law property,190 as well as where the employee possesses a particular skill that is required for the job which he fails to fully discharge, thereby causing the employer to sustain loss.191 The modern manifestation of the principle is more often seen when the employee acts negligently in the exercise of his duty. Thus, in Janata Bank v Ahmed,192 Mr Ahmed was a bank manager and was found to be in breach of the implied term when he made loans to people who were obviously bad credit risks. The Jamaican case of Sandra Chin v NEM Insurance Company (Jamaica) Limited193 is also instructive. Here the claimant failed to request critical information from a proposed insured in breach of the company’s policy, and even after being advised by other colleagues to do so. In finding that the employers were justified in dismissing the employee, Thompson-James JA was moved to state that: at all times it was an … implied term of Ms. Chin’s contract of employment that she would at all times act with due care, attention and diligence in accordance with the rules and instructions given to her by NEM … Ms Chin it seems to me by her negligence could no longer command the confidence of her employer. Her dismissal therefore is justifiable as her actions were not prudent.194 Duty of fidelity, non-competition, non-solicitation and trade secrets Employees are expected to be loyal to the employer and not to do anything to harm the employer’s business. In particular, the employee should not disrupt the employer’s business interest, be dishonest, compete with the employer or disclose confidential information. The case of Jamaica Public Service v NWU195 illustrates that loyalty and faithfulness are the critical tenets of this duty. Contrary to company policy, the employee extracted electricity from the employee’s facility. The employee’s subsequent dismissal was deemed fair having regard to the breach of his implied duty of fidelity. In the main, an employee can within limits do whatever he wishes in his spare time. He may not, however, work for a competitor. Thus, in Hivac v Park Royal Scientific Instruments Ltd,196 where five employees installed valves into hearing aids for the claimant and did the same job for a rival firm on weekends, the workers were in breach of their employment contract and particularly the implied term of fidelity. The extent to which an employee will be bound by this duty will depend primarily on the importance of his job function197 to the integral operations of the business; the more skilled the employee, the greater the duty. Thus, in General Services Security Limited v Bunting, Hart, Coppin and Safeguard Security Services Limited,198 where all the individual defendants, who were key personnel of the plaintiff company, incorporated a rival company (the 4th defendant), the Jamaican court found that they were in breach of their fiduciary duty and that the rival company participated with them 190 Superlux v Plaisted (1958) The Times, 12 September. 191 Principle established by Harmer v Cornelius [1858] 5 CB 236. 192 [1981] IRLR 457; see also Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555. 193 Claim No. 1998 C/091 (unreported) delivered May 29, 2008. 194 Ibid. pp. 14 and 16. 195 AUHCV 9387 of 1997 (unreported) delivered July 28, 2004 [JM 1996 IDT 17]. 196 [1946] Ch 169. 197 See Romac’s Ltd and McNab v Williams (1993) 3 Bz L R 284, where the Belizean Court of Appeal held that the failure of the respondent (whose job was a security guard) to report to his employer any conduct in the workplace coming to his notice which indicates that a fellow employee poses a real security risk was a breach of the implied duty of fidelity owed to the employer. 198 (1985) 22 JLR 456; see also the Montserratian case of Divirgilio v American University of the Caribbean; Nagi v American University of the Caribbean Suit No. 56 and 59 of 1982 (unreported) delivered November 25, 1982 [MS 1983 HC 5], where the claimants blatantly proceeded to accept employment in a university set up to directly rival the employer. Chapter 4: Terms of the Employment Contract 133 in furtherance of the breach. Similarly, in Rahman v Industrial Gases Ltd199 the Trinidadian Court of Appeal frowned on the actions of the claimant who became principal shareholder in a similar company to the one in which he was employed and, further, was involved in selling the employer’s product to the rival company at reduced prices. The court viewed this as repudiatory conduct on the part of the employee, and considered it acceptable for the employer to dismiss him in the face of an obvious breach of the implied term of fidelity. These decisions can be contrasted with Southwinds Hotel v Leesia Greene,200 where the Barbadian court indicated that the finding of a breach of the implied terms was a question of fact and that, in the circumstances of the instant case, there was no breach notwithstanding that the employee was found to be working at another establishment in a different capacity while she was on certified sick leave. It is not uncommon to encounter restrictive covenants in the written employment contract to safeguard against competition during the employment period and post termination of the employment contract. The House of Lords in Faccenda Chicken v Fowler201 provided guidance on the distinction between a trade secret, which is a valuable business asset, and ‘know-how’, which refers to the manner in which a task is carried out. It should be noted that while the court is prepared to grant an injunction to enforce restrictive covenant aimed at avoiding competition, solicitation and the divulgence of trade secrets during the course of the employment, it has expressed reservations about post-contractual restrictive covenants that unfairly prejudice ex-employees who are unable to find work as was seen in Fellowes & Son v Fisher.202 No conclusive time period has been suggested but, in International Consulting Services Ltd v Hart,203 a 12-month non-reconciliation clause was deemed valid having regard to the lengthy and complex nature of the employer’s business negotiations. A notable exception to this duty of fidelity is where a crime such as fraud has been committed. The employee would be permitted to make the necessary disclosure in the public interest. However, public interest would not include disclosure to the press.204 199 Civ. App. No. 154 of 1985 (unreported) delivered February 20, 1989 [TT 1989 CA 5]. 200 (1996) 32 Barb. LR 30 [BB 1996 CA 5]; see also Griffith v Phoenix Building Services (Barbados) Limited (1975) 10 Barb. L.R. 41. 201 [1986] IRLR 69. 202 [1976] QB 122. 203 [2000] IRLR 227. 204 See Initial Services Ltd v Putterill [1968] 1 QB 396; see also further discussion of the issue of whistleblowing in Chapter 9. CHAPTER 5 DISMISSAL AT COMMON LAW AND DISCHARGE OF THE EMPLOYMENT CONTRACT OVERVIEW The employment contract may be brought to an end in a number of ways: the employee may be dismissed outright by the employer; he may opt to leave the job; or the law may operate in a way which results in its termination. The particular circumstances of the case will determine the applicable legal precepts which will apply and the subsequent consequences for the parties to the agreement. In this chapter we will focus on the common law provisions which affect the termination or discharge of the employment contract. When positive action is taken by the employer, the concept of wrongful dismissal (also referred to as unlawful dismissal and summary dismissal) arises. Where the end of the employment occurs by virtue of employee action, constructive dismissal and resignations are in issue. In other instances (such as frustration of the contract, mutual agreement, or the death of either party) technically neither of the parties is culpable in the ensuing conclusion of the employment relationship. Whatever modality prompts the contractual termination, it is important that one is cognisant of what legal construct is at play, since this directly impacts on the remedies available to an aggrieved party.1 This is especially true when viewed in the light of statutory interventions in the employment law field which provide alternative remedies for unfair dismissal (also referred to as unjustifiable dismissal) in some jurisdictions. WRONGFUL DISMISSAL The term ‘wrongful or unlawful’ dismissal denotes a situation where the employer terminates the employment contract in breach of the provisions which govern the expiration of the contractual term.2 The status quo ante modern employment law legislation was characterized by a notice rule that hung over the nape of the employee like the sword of Damocles. At common law, either party has the right to terminate the employment contract by giving reasonable notice, even in the absence of a legitimate reason for doing so. Indeed, the employer was seized of the power to terminate the employment contract for any reason, or none at all.3 In the Commonwealth Caribbean, this principle has been codified by statute in Belize.4 Thus, if the employee was not given any notice, or was provided with a shorter period of notice than required by the contract, he would be wrongfully dismissed.5 An apt definition of the concept in case law is found in Wallace v United Grain Growers Ltd,6 where it was held that: The action for wrongful dismissal is based on an implied obligation in the employment contract to give reasonable notice of an intention to terminate the relationship (or pay in lieu thereof) in 1 2 3 4 5 6 Note that, when there is no ‘dismissal’, neither party can claim wrongful/unlawful dismissal or unfair dismissal. See Halsbury’s Laws of England (5th Ed., 2009) Volume 40, para 780. See classic statement of the principle in Ridge v Baldwin [1964] AC 40 at 65, [1963] 2 All ER 66 at 71; see also Janice Elliot v Euro Star Motors Limited, Claim No. C.L. 2000/E024 Jamaica SC (unreported) delivered November 12, 2009. Labour Act, s 37(1). See British Guiana Credit Corporation v Da Silva [1965] 1 WLR 530 PC; and discussion in Taylor, S. and Emir, A. (2006) Employment Law: An Introduction (1st Ed., Oxford University Press), p 343. [1997] 152 DLR (4th) 1, 39. Chapter 5: Dismissal at Common Law and Discharge 135 the absence of just cause for dismissal … A ‘wrongful dismissal’ action is not concerned with the wrongness or rightness of the dismissal itself. Far from making dismissal a wrong, the law entitles both employer and employee to terminate the employment relationship without cause. A wrong arises only if the employer breaches the contract by failing to give the dismissed employee reasonable notice of termination. The dismissal itself must be clear and unequivocal, indicating to the relevant party that the contract will be determined on a particular date.7 As cryptically stated by Widgery J in Morton Sundour Fabrics Ltd v Shaw:8 ‘As a matter of law you cannot dismiss an employee by saying “I intend to dispense with your services in the coming months”.’ Conversely, in Kwik-Fit (GB) Ltd v Lineham9 the employee’s action of throwing down the office keys and walking out of the workplace in response to the employer’s histrionic disciplinary action was not enough to establish the employee’s notice of resignation. When dismissal is contemplated, the employee must also be personally notified that his contract is being terminated;10 and, once notification is given, it cannot be unilaterally withdrawn – mutual consent is required.11 The unlawful dismissal claim may also be sustained in circumstances where the contract stipulates a particular procedure to be followed for termination to be effected and this was not adhered to.12 Additionally, if the contract restricts the grounds on which workers can be dismissed, and they are dismissed for other reasons, there may also be an actionable claim for wrongful dismissal.13 Another instance where unlawful dismissal may be successfully claimed is the termination of a fixed-term contract before the intended expiration date when there is no express notice clause.14 It should also be noted that unlawful dismissal also applies to the actions of employees who terminate their employment by giving no or inadequate notice.15 Notice at common law Where there is no express provision16 that notice be given for the termination of the employment contract or any customary practices in that regard,17 two presumptions arise: firstly, that the duration of the contract is not fixed; and secondly, that either party can therefore 7 8 9 10 11 12 13 14 15 16 17 Hogg v Dover College [1990] ICR 39 EAT; Alcan Extrusions v Yates And Others [1996] IRLR 327. [1966] 2 ITR 84; Bryan v Spence Barbados Magisterial Appeal No. 16 of 1997 (unreported) delivered June 11, 1998 [BB 1998 CA 10], where the appellant’s actions (of locking the door to the workplace, handing the employee her work clothes and telling her that she could no longer work for her) amounted to dismissal. [1992] IRLR 156. Morris v Bailey [1969] 2 Lloyd’s Rep 215. Riordan v War Office [1959] 3 All ER 552. See Reid v Marshall, Trinidad Aggregates et al Suit No. 3023 of 1995 (unreported) delivered May 13, 2010 [TT 2010 HC 133] – Board of Directors purported to dismiss plaintiff when this could only be done by shareholders in a general meeting; Dietmann v Brent London Borough Council [1988] ICR 842, [1988] IRLR 299 CA; Hackett v Caribbean Examinations Council (1988) 40 WIR 38; Ballen v The Kingston and St. Andrew Corporation (1959) 1 WIR 513. McClelland v Northern Ireland General Health Services Board [1957] 2 All ER 129, [1957] 1 WLR 594, HL. See discussion in Lockton, Deborah Employment Law (5th Ed., Palgrave Macmillan) p 275. Huttman v Boulnois (1826) 2 C & P 510. Any express term which seeks to deny the worker his normal right to notice must be clear and unambiguous: see T & K Home Improvements Ltd v Skilton [2000] IRLR 595, CA. George v Davies [1911] 2 KB 445; see also Jamaica Employment (Terminations and Redundancy Payments) Act, s 3(3)(c); St. Vincent and the Grenadines Protection of Employment Act, s 14(2). 136 Commonwealth Caribbean Employment and Labour Law terminate the contract by giving reasonable notice to the other party.18 Accordingly, Lord Millett, in delivering the Privy Council’s decision in Reda v Flag Ltd19 (an appeal from Bermuda), explained that this ‘notice rule’ did not apply to fixed-term contracts, since the expiration date would clearly be ascertainable. The instant case is also authority for holding that, where a fixed-term employment contract provided for termination without cause upon payment of compensation, such action would be in conformity with the term.20 Deakin and Morris posit that: The principal function of this notice rule is to give both sides the option of escaping from the arrangement at low cost. However, the length of notice may be set so as to grant one or both of the parties some degree of warning of, and monetary compensation for, the ending of the relationship … In the absence of an express clause, what was ‘reasonable’ tended to be determined by one or two rival criteria – the period by which the wage or salary was calculated, and the custom in the relevant trade. An employee whose wage was calculated by the week might, for that reason, be entitled to receive at least a week’s notice of termination.21 Thus, in Mendez v The Bank of Nova Scotia (St. Kitts Branch),22 where the plaintiff’s contract did not contain a notice clause, the High Court held that, given the employee’s qualifications, stature, skill, training, seniority of position, length of employment,23 and responsibilities of the post, a reasonable notice for dismissal was nine months.24 In The Manager Windmill Garment Manufacturing Limited v Violet Richards25 the Jamaican Court of Appeal used the period of time it would take the wrongfully dismissed employee to find alternative employment sufficiently similar to her previous post as a yardstick to measure reasonable notice. These decisions can be contrasted with Sheraton Management Co Limited v Moree,26 where the Bahamian Court of Appeal overruled the award of an arbitration tribunal that the respondent was entitled to reasonable notice. The court opined that the respondent’s promotion did not cancel the express terms and conditions of her previous appointment, which was standard across all posts in the organisation, and therefore there was no need to infer a reasonable period of notice upon her dismissal. Thus, if 18 19 20 21 22 23 24 25 26 See Lord Oaksey in McClelland v Northern Ireland General Health Services Board [1957] 1 WLR 594 at 599; Fuller v Revere Jamaica (1980) 31 WIR 304 at 309 – Rowe JA stated ‘at common law a contract of service could be terminated by reasonable notice or payment in lieu of notice unless there was some stipulation in the contract to the contrary or the contract was to be interpreted by reason of some special customary rule’; Franklyn D Resorts Limited v Gonsalves Civil Appeal No. 9 of 1999 (CA) (unreported) delivered 31 July, 2001. [2002] IRLR 747 at [757]; (2002) 61 WIR 118. See Williams v National Bank of Dominica Eastern Caribbean Court of Appeal No HCVAP 2001/008 (unreported) delivered August 31, 2012 – where the Court of Appeal by majority and applying the principles in Reda v. Flag agreed with the Dominican High Court that a provision in a fixed-term contract which provided for termination ‘with reasonable cause or by no fault by either party’ by giving three months’ salary meant ‘without cause’; and therefore, relying on those terms, the employer had not wrongfully dismissed the appellant. Deakin, S. & Morris, G. (2012) Labour Law (Hart Publishing, 6th Ed.), pp. 427–428. [1990–1991] 4 Caribbean Commercial Law Reports 205. See also V.G. Rose and Times (Press) Ltd (1984) 21 JLR 212, where length of service was used as the determinative factor to find that one month’s notice was insufficient notice for an employee of 32 years’ standing. See also Rouse v Mendoza (1967) 12 WIR 1, where the courts also imputed a reasonable notice of six months where a veteran employee of 24 years was wrongfully summarily dismissed; see also Cecil Godfrey v Allied Stores Limited (1990) 27 JLR 420 (SC), where the court opined that the ETRPA merely prescribes minimum periods of notice required to terminate a contract of employment – in this case, two weeks. It was held that the common law rules may require a longer period of notice, depending on the intention of the parties as revealed in the employment contract. Here there was no express provision as to notice, so the court implied a term finding that three months’ notice was reasonable. See also Kaiser Bauxite Company v Cadien (1983) 20 JLR 168 at p 191. (1989) 26 JLR 243 (CA) – three months was considered reasonable notice of intention to terminate the employment. (1989–1990) 1 LRB 518. Chapter 5: Dismissal at Common Law and Discharge 137 the route of declaring reasonable notice is necessary, it is clear that the court’s decision will be a question of fact to be found by an examination of the circumstances in each case.27 It is therefore desirable for notice to be clearly defined in the contract, especially where the minimal statutory notice provisions may prove inadequate to address the needs of the parties in the employment relationship. Statutory periods of notice Because of the tenuous nature of the reasonable notice principle, the legislators across most Commonwealth Caribbean countries set out to entrench basic minimum standards for notice into the employment contract via statutory prescriptions. Notice to employees The important point to note in this regard is that there must be a minimum period of continuous employment which will trigger the employees’ right to the protection. The worker also derives protection from the fact that the statutory standards cannot be overwritten by lower contractual agreements; any such term will be void.28 The statutory notice timeframes vary according to length of service, increasing with the passage of years in continuous employment. Table 5 (overleaf) expounds current legal provisions regarding notice to employees which are applicable in a selection of regional jurisdictions. The following conclusions may be drawn from the information disclosed above: • • • the range from 24 hours29 to four months30 suggests that there is no homogenous concept regarding the duration of statutory notice periods in the Commonwealth Caribbean; legislative attempts in the Commonwealth Caribbean to fix a minimum notice period have been largely founded on the duration of the employment contract, the intervals between the payment of wages of the employee, and the continuous employment of the employee for the same employer excluding the probation period;31 and the provisions of many territories are at variance with the CARICOM Harmonisation Model Law.32 The exclusion of Trinidad and Tobago from this sample is deliberate and due to the fact that there is currently no legislation governing notice requirements on the termination of employment contracts in this territory.33 However, the germane subject areas of redundancy and severance are dealt with in the Retrenchment and Severance Benefits Act.34 27 28 29 30 31 32 33 34 See Godfrey v Allied Stores Limited (1990) 27 JLR 421 SC; Milne v Trinidad Dock and Fishing Services Ltd and Duberg Claim No. CV 3438 of 2007 (unreported) delivered March 11, 2009 [TT 2009 HC 39]; Tropigas Ltd v Rolle Civil Appeal No. 13 of 1983 Bahamas CA (unreported) delivered February 6, 1985. See, for example, Employment Rights Act, s 22(5) (Barbados). See Antigua in the table. See Bahamas in the table. Note the exception of St. Lucia cited in the table. Pegus, C. (2007) in Review and Analysis of Compliance of the National Labour Legislation of Antigua and Barbuda with CARICOM Model Labour Laws, May 2007 (ILO Publication), highlights (see p. 10) that section C9 of the Antigua and Barbuda Labour Code is incompatible with the CARICOM Harmonisation Model Law and recommends that a suitable amendment be considered. It should be noted that the Basic Conditions of Work and Minimum Wages Bill, which is slated to address this mischief, has been in draft stage since 2000 and is yet to be debated and passed. Chapter 88:13, Act 32 of 1985. None. The fact that an employee is not entitled to notice if hired under a contract of employment of less than one week’s duration implies a minimum period of continuous employment of one week. Definition of continuous employment 35 35 • > 6 months but < 12 months • > 1 year but < 2 years Employees who hold supervisory or managerial positions 1–2 weeks 2–4 weeks 1–4 months 24 hours An employee within his probation period, being a maximum of three months (see C8). Arguably, he is so entitled where the contractual term of employment is more than one week, although he has actually worked less than one week. Bahamas35 2 weeks 1 month Notice required by employer • Fortnightly paid employee • Monthly paid employee Notice shall be at least equivalent to the interval of time between the affected employee’s paydays. For example: Duration of continuous employment required It is to be noted that the Bahamian Court of Appeal does not view these provisions as a codification of common law but rather as a means to ‘establish a formula for compensating employees who are terminated, without the employee having to undertake the burden of incurring the expense of prosecuting a claim for compensation at common law for wrongful dismissal. The employee, if of the view that he would not be adequately compensated under the statute, could pursue his greater rights for larger benefits at common law if he is so minded. Of course, the danger in that course is that he would necessarily have to incur the costs of that exercise with the consequential risk of having to pay costs in the event he fails to establish his claim altogether. Because at common law, the principle is that there is an obligation on the plaintiff to mitigate his loss’ – Paula Deveaux v Bank of the Bahamas Civil Appeal No. 19 of 2006 (unreported) delivered July 19, 2006 p 5; see also Thalberg Wells v Snack Food Wholesale Limited Civil Appeal No. 20 of 2006 (unreported) delivered July 31, 2006. Employment Act No. None. 27 of 2001, sections 29–30 Antigua and Barbuda Labour Code, Chapter 27, Division C, Part 1, C9 Legislation Antigua & Barbuda Table 5 Examples of Statutory Minimum Notice Periods in the Commonwealth Caribbean Employment Termination and Redundancy Payment Act 1974, section 3 Jamaica • > 2 weeks but < 6 months • > 6 months but < 2 years • > 2 years but < 5 years • > 5 years Belize (a) Hourly, daily and weekly paid employee: • < 2 years • > 2 years but < 5 years • > 5 years but < 10 years • > 10 years but < 15 years • 15 > years (ii) Fortnightly paid employee continuously employed for one year or more: • < 5 years • > 5 years but < 10 years • > 10 years but < 15 years • > 15 years (ii) Monthly paid employee continuously employed for one year or more: • < 10 years • > 10 years but < 15 years • > 15 years The language of the section makes • < 5 years reference to ‘an employee who has been • > 5 years but < 10 years continuously employed for four weeks or • > 10 years but < 15 years more’. The Employment (Termination • > 15 years but < 20 years and Redundancy) Regulations also set • > 20 years out the periods which count towards continuity (Regulations 4 and 5). Where the probationary period is more than 90 days, notice must also be given. Labour Act Chapter Section 2 defines continuous employment 297, 2000 (amended as being the period of uninterrupted by Act 3 of 2011 employment with the same employer or Section 37) a successor employer. Employment Rights Begins on the first day of work and Act 2012-9, Part V, includes the probationary period, section 22 irrespective of job changes, provided it is for the same employer, and is unaffected by absences due to authorised leave, illness, suspension, lay-off, work-related accident and unfair dismissal that results in reinstatement. See section 4. Barbados 2 weeks 2 weeks 4 weeks 6 weeks 8 weeks 12 weeks 1 week 2 weeks 4 weeks 8 weeks 1 month 1.5 months 2.5 months 2 weeks 4 weeks 6 weeks 10 weeks 1 week 2 weeks 4 weeks 6 weeks 10 weeks (Continued) None. However, the relevant sections make reference to ‘continuous service’. Further, section 10 of the principal Act itemises what will not constitute a break in continuity of a contract of employment: a trade dispute, illness, maternity, operation of law, act of God, agreement with the employer, authorised leave, suspension, and lay-off where there is no severance payment due to the employee. None. However, under section 9, no notice is required during the probationary period which shall not exceed three months. Begins on the first day of work and includes • > 12 weeks but < 2 years the probationary period, irrespective of • > 2 years but < 5 years job changes, provided it is for the same • > 5 years but < 10 years employer, and is unaffected by absences • > 10 years due to authorised leave, maternity leave, illness, suspension, lay-off, work-related accident and unfair dismissal if that claim is successful, lock-out, act of God, civil commotion or riot, jury duty, public Protection of Employment Act 1986 sections 5–11 and the (Amendment) Act 2001, section 4 Termination of Employment and Severance Pay Act 1997, Part III, section 15 Labour Code No. 37 of 2006, Division 10, sections 153–156. St. Lucia • < 1 year • > 1 year Guyana • > 3 months but < 1 year • > 1 year but < 3 years • > 3 years but < 5 years • > 5 years but < 7 years • > 7 years but < 10 years • > 10 years but < 15 years • > 15 years St. Christopher & Nevis Duration of continuous employment required Definition of continuous employment Legislation Table 5 Examples of Statutory Minimum Notice Periods in the Commonwealth Caribbean (Continued) 1 week 2 weeks 4 weeks 6 weeks 2 weeks 1 month 1 week 2 weeks 3 weeks 4 weeks 5 weeks 6 weeks 10 weeks Notice required by employer CARICOM Model Harmonisation Act Regarding Termination of Employment, sections 26-28. Implements the provisions of the ILO Convention on Termination of Employment No. 158 (1982) Under section 2, an employee’s period of uninterrupted employment with the same employer or the successor employer. duty, national service and circumstances such that, by arrangement, custom or law, the employee is regarded as continuing in the employment of the employer. See sections 23–25. • < 1 month • > 1 month but < 1 year • > 1 year but < 5 years • > 5 years Caricom Model Legislation 1 day 2 weeks 1 month 2 months 142 Commonwealth Caribbean Employment and Labour Law Notice to employers The minimum standards for the amount of notice which employees should give to employers have also been implemented by various legislative provisions throughout the region. The Jamaican legislation stipulates a static notice requirement applicable after four weeks of continuous employment, whereby the worker should provide the employer with two weeks’ notice when terminating employment.36 Other jurisdictions specify a tiered notice requirement dependent on the years of service;37 thus, for example, in the Bahamas the worker is required to give two weeks’ notice to the employer if the period of employment is one year or more but less than two years; however, if the period of employment is two years or more, he should provide four weeks’ notice to the employer.38 The St. Lucia Labour Code section 153 (2) requires an employee to give notice of his intention to terminate the employment contract; subsection (3) clarifies that this is a mandatory minimum standard that may be altered by contractual agreement. Where the employee walks off the job without notice, the only remedy available to an employer who has not waived his right in that jurisdiction is an entitlement to deduct a sum in lieu of notice.39 What is clear from most regional statutory provisions is that the periods of notice required from employees is far less than that demanded from employers, which shows deference to the perception that employers are in a superior position to deal with the dislocation occasioned by the termination of the employment contract. St. Kitts and Nevis presents a divergence from this general position, in that the notice required from employees is commensurate to that required to be given by employers;40 where there is an oral contract, the employee is only required to give four weeks’ notice.41 Payment in lieu of notice (PILON) Where either party to the contract has not been provided with the appropriate notice, as required by the contract, statute or imputed by the court (reasonable notice), a payment in lieu of notice could also come into play to address the lawfulness of the termination.42 It is typically permissible for employers to provide the employee with payment in lieu of notice because, in the majority of contracts, the employer is only obliged to pay wages and not to provide work.43 ‘In any event, even if such a dismissal was wrongful, a payment of wages in lieu usually has the character of damages for such wrongful termination and normally compensates the employee in full.’44 The House of Lords in Delaney v Staples,45 while indicating that the phrase was not a 36 37 38 39 40 41 42 43 44 45 Employment (Termination and Redundancy Payments) Act, s 3(2). For example, see Dominica Protection of Employment Act, s 19; Grenada Employment Act, s 75(2); St. Lucia Labour Code, s 153(2); and Barbados Employment Rights Act, s 22(4). Employment Act, s 29(2). See s 155(2). Distinguish this formulation from the extended version of the right in the Antigua Labour Code C11 that requires 24 hours’ notice to be given if the employee is on probation. No other substantive differences are apparent. Protection of Employment Act, s 8(1). Protection of Employment Act, s 8(2). Gaynor v Cable and Wireless Jamaica Limited et al. Suit No CL G 124 of 2000 (unreported) delivered 1 December, 2005; the court stated ‘even if it can be urged that the dismissal was wrongful the payment in lieu of notice represents compensation in full for the dismissal; in view of that the claim for wrongful dismissal fails’; see also West v Sugar Company of Jamaica Suit No. 829 of 2003 (unreported) delivered June 12, 2008 and Sandra Chin and NEM Insurance Company (Jamaica) Ltd, Claim No. 1998/C-091 SC delivered May 29, 2008. See Marshall (Cambridge) Ltd v Hamblin [1994] IRLR 260; and discussion in Halsbury’s Laws of England (5th Ed., 2009) Volume 40, para 690. Ibid. [1992] 1 All ER 944. Chapter 5: Dismissal at Common Law and Discharge 143 ‘term of art’, enumerated four instances where dismissals could be executed lawfully by giving the employee a payment in lieu of notice: (1) An employer gives proper notice of termination to his employee, tells the employee that he need not work until the termination date and gives him the wages attributable to the notice period in a lump sum;46 (2) The contract of employment provides expressly that the employment may be terminated either by notice or, on payment of a sum in lieu of notice, summarily; (3) At the end of the employment the employer and the employee agree that the employment is to terminate forthwith on payment of a sum in lieu of notice; (4) Without the agreement of the employee, the employer summarily dismisses the employee and tenders payment in lieu of proper notice. This is by far the most common type of payment in lieu … The employer is in breach of contract by dismissing the employee without proper notice. However, the summary dismissal is effective to put an end to the employment relationship, whether or not it unilaterally discharges the contract of employment. Since the employment relationship has ended no further services are to be rendered by the employee under the contract. It follows that the payment in lieu is not a payment of wages in the ordinary sense since it is not a payment for work done under the contract of employment.47 The issue of payment in lieu of notice can create some problems in practical application.48 If the employment contract specifically includes a payment in lieu of notice clause (as in the second limb of the Delaney rules) and termination occurs using these provisions, there is no breach of contract and no wrongful dismissal at common law.49 The disbursements made thereunder are properly considered as contractual obligations to make a lump sum payment in such circumstances and not damages for breach of contract.50 In those cases, there is hardly a practical distinction, as the monetary effect is the same as though the employee had been awarded damages for wrongful dismissal. The upshot for the employer is that the contract may be lawfully terminated at an earlier time than stipulated in the contract. The contractual term must therefore be carefully drafted to express the true purpose of the parties; thus, in the Barbadian case of Michael Moore v Turtle Beach Resort Limited 51 the Court of Appeal found the employee was wrongfully dismissed as the clause on which the employer sought to rely to give payment in lieu of notice actually stated that notice should be given of the intention to terminate and not of the termination itself. If, however, the worker is dismissed without reliance on the payment in lieu clause (for example, where the employee works out the notice), the termination may still be lawful and no damages for breach of contract are applicable. Nonetheless, the employee may claim a liquidated sum as a contractual debt for the non-adherence to the contract term.52 If (as in the fourth limb of the Delaney rules) the employer summarily dismisses without notice and proffers payment in lieu of notice, it will become a matter of fact to be decided by the court of whether 46 47 48 49 50 51 52 This includes the so-called ‘garden leave clause’. See further discussion in Smith, I. et al (2010) Smith and Woods Employment Law (10th Ed., Oxford University Press), pp. 385–391. [1992] 1 All ER 944 at 947; see Lord Browne-Wilkinson at 947e-g. In the Dominican case of Burton v Dominica Coconut Products Suit No. 537A of 1999 (unreported) delivered June 20, 2000 [DM 2000 HC 7], the employment contract made reference to one month’s notice but did not make provision for the payment of wages in lieu of notice. In light of a finding that the employee had been summarily dismissed, the court awarded the statutory minimum of three months’ wages in lieu to which the employee would have been entitled. See discussion in Taylor, S. and Emir, A. (2006) Employment Law (1st Ed., Oxford University Press), p. 344. See Caribbean Commercial Bank Limited v Daniel Magisterial Appeal No 8 of 1997 (unreported) delivered June 25, 1998 [BB 1998 CA 11]. Magisterial Appeal No. 1 of 2010 (unreported) delivered April 13, 2010. Abrahams v Performing Rights Society [1995] IRLR 486. 144 Commonwealth Caribbean Employment and Labour Law or not this is lawful.53 Where there is no subsequent agreement on the part of the dismissed employee to the dismissal, this payment will then be in the nature of damages for wrongful dismissal.54 It should be noted that regional statutes for the most part also acknowledge that parties in the employment relationship can, by agreement, include a greater period of notice in the contract.55 It allows them to waive the period of notice or accept payment in lieu thereof.56 Remedies and compensation for wrongful dismissal Arguably, the reciprocal right of an employee to work out the notice period (should he so choose) offered little consolation, as he was not entitled to remain on the job beyond the notice period and there existed no remedy of reinstatement if the action of the employer amounted to wrongful dismissal. The pre-eminent (and sometimes sole) remedy for the employee was damages. However, in certain limited circumstances the remedies of specific performance, declaration and injunction may also be available. Specific performance, injunction and declaration The general principle at common law is that courts will not enforce an employment contract57 either by way of specific performance or injunction. This stems from the argument that such contracts are personal in nature and therefore difficult to police.58 Such an argument is in line with the automatic or unilateral theory of employment termination which posits that, once a repudiatory breach59 (the act of wrongful dismissal) occurs, it serves to immediately end the contract, with the only real remedy being damages. On the other hand, the elective or bilateral theory relies heavily on conventional contractual precepts which aver that, in order to have an effective dismissal, the repudiatory breach must be accepted by the innocent party.60 The distinction is important where employees claim any of the captioned remedies, as the latter can serve to extend the life of the contract (at the option of either party) to ensure that beneficial terms are accessible which otherwise would have been lost if the former concept held sway. The courts have been minded in some cases to move away from the automatic termination principle, especially where damages would be an inadequate remedy. Thus in Hill v CA Parsons 53 54 55 56 57 58 59 60 See Baldwin v British Coal Corporation [1995] IRLR 139 – the employee waived his right to notice. Correia’s Jewellery Store Limited v Forde (1992) 46 WIR 57. Barbados Employment Rights Act, s 22(6); Grenada Employment Act, s 79; Jamaica Employment Terminations and Redundancy Payments Act, s 3(3)(b); Guyana Termination of Employment and Severance Pay Act, s 15(5). Section C9(4) Antigua Labour Code; Jamaica Employment Terminations and Redundancy Payments Act, s 3(3)(a) (see also The Trade Union Congress of Jamaica and Six Others v Shipping Association of Jamaica (1992) 29 JLR 9 at p. 14G); St. Vincent and the Grenadines Protection of Employment Act, Schedule; St. Christopher and Nevis Protection of Employment Act, s 7(2); St. Lucia Labour Code, s 153(3); Guyana Termination of Employment and Severance Pay Act, s 15(5). Whitwood Chemical Co v Hardman [1891] 2 Ch 416, CA. De Francesco v Barnum (1890) 45 Ch D 430 at 438 – Fry LJ: ‘I should be very unwilling to extend decisions the effect of which is to compel persons who are not desirous of maintaining personal relations with one another to continue those personal relations … I think the courts are bound to be jealous lest they turn contracts of service into contracts of slavery’. For a definition of the concept, see Re Rubel Bronze and Metal Company Limited [1918] 1 KB 315, where MacCardie J said ‘the question of repudiation must depend on the character of the contract, the number and weight of the wrongful acts or assertions, the intentions indicated by such acts and words … and the general circumstances of the case’. Howard v Pickford Tool Company Ltd [1951] 1 KB 417 at 421 CA – Asquith LJ stated that ‘an unaccepted repudiation is a thing writ in water and of no value to anybody’. Chapter 5: Dismissal at Common Law and Discharge 145 & Co Ltd 61 the court granted an injunction which had the effect of specific performance, to sustain the employment relationship where the implied trust and confidence term was not broken and dismissal was merely in accordance with a closed shop arrangement with the incumbent union.62 Thus the court gave deference to the unique nature of the employment relationship hinged on trust and co-operation between the parties.63 Similarly, in Irani v Southampton and South Western Hampshire Health Authority,64 the court granted an injunction barring the dismissal of the complainant until a disciplinary hearing was held, since trust and confidence between the parties was not broken and, importantly, damages would not suffice to redress the wrong.65 The law has now developed in such a way that the need to show that mutual trust and confidence remains between the parties is no longer determinative for the granting of injunctive relief, as seen in Powell v London Borough of Brent.66 Ewing67 states that a threefold categorisation can be discerned, based on decided cases, where the courts will countenance granting relief: firstly, when there is a contractual procedural provision regarding dismissal which is breached;68 secondly, the outright breach of contract;69 and finally, unilateral variation of the contract which amounts to a breach. He further posits that, in the case of injunctions, the conventional requirements as stipulated in American Cyanamid Co Ltd v Ethicon 70 must also be fulfilled. It should, however, be noted that injunctive relief is rarely provided and moreover, by its very character, is usually interim in nature and is granted for the purpose of maintaining the status quo until the substantive issues are addressed, either at trial or by arbitration. Initially, applications for declarations71 have only been successfully pursued as an appropriate remedy restraining dismissals, in cases where the employee held a statutory status or office.72 However, with the decision in Gunton v Richmond-upon-Thames LBC73 there was a shift towards providing this type of remedy for breach of ‘ordinary’ employment contracts. This case again highlighted the conflicting theories surrounding employment termination. The plaintiff was a college registrar who was dismissed upon payment of one month’s notice without recourse to a contractual disciplinary procedure. It was held (by majority) that the elective theory was operative, but the court stressed that in practical application the majority of cases will end in the claimant having no choice but to accept the repudiation and seek damages. Thus the declaration was granted, but only to the extent that the plaintiff was able to claim damages for the period during which the procedure was to be executed; no reinstatement was possible. The recent UK Supreme Court decision in Geys v Société Générale, London Branch74 has now confirmed the preference for ‘a genuine form’ of the elective theory, which is viewed by 61 62 63 64 65 66 67 68 69 70 71 72 73 74 [1972] Ch 305, [1971] 3 All ER 1345, CA. The reasoning was followed in Jones v Lee and Guilding [1980] ICR 310, [1980] IRLR 67. However, see Sanders v Ernest Neale Ltd [1974] IRLR 236 and Hotel Four Seasons Ltd v The National Workers’ Union (1985) 22 JLR 201 CA; in these cases the trust and confidence term was breached (the workers were involved in strike action) and the unilateral theory of dismissal was relied upon. [1985] ICR 590. See similar decisions in Anderson v Pringle of Scotland [1998] IRLR 64; Dietman v Brent London Borough Council [1993] ICR 453. [1988] IRLR 466. Ewing, K.D. (1993) ‘Remedies for Breach of the Employment Contract’ 52 Cambridge Law Journal 405. Hughes v London Borough of Southwark [1988] IRLR 55. Robb v London Borough of Hammersmith [1991] IRLR 72. [1975] AC 396, [1975] 2 WLR 316. The courts have also declared on occasion that letters of dismissal are not valid and do not effect dismissal – see Jones v Gwent CC [1992] IRLR 521. Vine v National Dock Labour Board [1957] 3 All ER 939, [1957] 2 AC 488; declaration not granted in cases of ordinary employment in Francis v Municipal Councillors of Kuala Lumpur [1962] 1 WLR 1411. [1980] IRLR 321; confirmed in Boyo v Lambeth London Borough Council [1995] IRLR 50. [2013] IRLR 122. 146 Commonwealth Caribbean Employment and Labour Law Cabrelli and Zahn75 as ‘a positive development and shed much-needed light on the implications of a repudiatory breach for the termination of the employment contract’.76 Whether these remedies are available in the Commonwealth Caribbean was addressed in National Workers Union and Collington Campbell v The Jamaica Broadcasting Corporation; Union of Clerical Administrative and Supervisory Employees and Beverly Newell v The Jamaica Broadcasting Corporation.77 Here the workers were dismissed without notice and sought declarations that they were entitled to have their dismissal adjudicated by an arbitration panel, as stipulated by the collective labour agreement, and that their employment was still subsisting and had not been terminated. They also sought injunctions restraining the company from employing others to fill their positions until the matter was fully aired. The court acceded to the request for the injunction, on the basis that the plaintiffs showed that there was a serious question to be tried and that damages could not adequately compensate the workers if they were successful at trial. In relation to the relief sought by arbitration, which was clearly designed to pursue reinstatement, the court refused the same. Concluding that there was no express provision empowering the arbitration panel to do so, it would therefore be an empty declaration. However, regarding the requests for declaration, the court granted the order, stating that ‘the plaintiffs’ dismissals were ineffective to terminate the contract of employment and this circumstance constituted an exception to the general rule that the law would not enforce whether by specific performance or injunction a contract of employment’.78 Contrast the case of The Trade Union Congress of Jamaica and six others v Shipping Association of Jamaica,79 where the court refused an application for a declaration that the contracts of employment still existed for port workers who were dismissed by reason of redundancy. It also declined to issue injunctions to prohibit the filling of the vacancies created by the dismissals. In so doing, the court recognised the employer’s rights to organise its workforce and decide on the structure of its operations which had necessitated the terminations, and held that the workers were not wrongfully dismissed. Even if they were, the court thought that there were no exceptional circumstances that could have compelled it to grant the reliefs sought. Accordingly, it would appear that only in stringently appropriate cases will these reliefs be successfully accessed in regional jurisdictions. Damages At common law, the conventional remedy for wrongful dismissal is an award of damages,80 assessed on the premise that the employee is entitled to a sum at least equivalent to what his remuneration would have been during the notice which was not given.81 The classic statement of law relating to this remedy is as follows: … where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation with respect to damages, as if the contract had been performed.82 The quantum of damages awarded is dependent inter alia on the notice period contained in the contract of employment or (where applicable) stipulated by statute or declared by the court, 75 76 77 78 79 80 81 82 Cabrelli, D. and Zahn, R. (2012) The Elective and Automatic Theories of Termination at Common Law: Resolving the Conundrum? 41 ILJ 346. Ibid. at 351. (1981) 18 JLR 11. Ibid. at 22 per Smith CJ. (1992) 29 JLR 9. Although, in rare appropriate cases, a quantum meruit claim may be the better course to be pursued: Planché v Colbourn (1831) 8 Bing 14; see also Halsbury’s Laws of England (5th Ed., 2009) Volume 40, para 787. Principle enunciated in Hill v CA Parsons & Co Ltd [1972] Ch 305, [1971] 3 All ER 1345, CA. Robinson v Harman (1848) 1 Exch 850 at 855, Parke B. Chapter 5: Dismissal at Common Law and Discharge 147 the extent to which the losses claimed flow as a direct result of the breach, and whether the contract made express or implied provision for payment in lieu of notice. Case law illustrations provide a well-defined demarcation of what constitutes ‘pay’ for the purposes of computing compensation for wrongful dismissal. The calculation is based on the value of all contractual entitlements accruing to the ex-employee.83 Consequently, this would include wages, health insurance (but only the portion for which the employer was responsible),84 general insurance coverage,85 car allowance,86 commissions,87 housing allowance,88 and any outstanding vacation pay.89 It was previously presumed that a discretionary bonus payment could not form the basis of a claim for damages in wrongful dismissal cases.90 However, following the decision in Horkulak v Cantor Fitzgerald International 91 the employer is obliged to act in good faith when exercising this discretion and to act in a bona fide rational manner.92 This dictum has been followed in the Trinidadian cases of Milne v Trinidad Dock and Fishing Services Ltd and Duberg 93 and Ricardo Welsh v 91.9 Trinibashment Limited,94 and also in the Jamaican Supreme Court decision of Claudette McFarlane v NCB Insurance Company Limited.95 Following the principle enunciated in Addis v Gramophone Co Ltd,96 no compensation is recoverable for damage to reputation, embarrassment, injury to feelings, the manner of dismissal and loss of earning capacity.97 However, in certain limited cases, damages may be recoverable: where one’s reputation associated with a public persona (such as an actor or entertainer) is affected by the wrongful dismissal;98 or an apprentice who loses training and future employment opportunities as well as wages.99 Damages over and above the monetary value of the notice period may also be pursued in cases where contractual obligations for certain procedures to be followed may exceed that timeframe. Thus, in Boyo v London Borough of Lambeth100 the UK Court of Appeal held that a reasonable period for going through a disciplinary 83 Reid v Marshall, Trinidad Aggregates Ltd et al Suit No. 3023 of 1995 (unreported) delivered May 13, 2010 [TT 2010 HC 133] for an excellent explanation of this concept. 84 Lisa Mae Gordon v Fair Trading Commission HCV 2699 2005 (unreported) (SC) delivered March 28, 2008; see also Mendez v The Bank of Nova Scotia (St. Kitts Branch) [1990–1991] 4 Caribbean Commercial Law Reports 205, where medical insurance payments were recoverable by virtue of contractual terms. 85 Shove v Downes Surgical plc [1984] IRLR 532; in addition to 30 months’ notice, he received the use of a company vehicle and membership in the company health and pension scheme. 86 See Allied Stores v Godfrey (1990) 27 JLR 421; confirmed on appeal in Allied Stores v Cecil Godfrey (1992) 29 JLR 203 CA. 87 Henry Shivers v Aquapure Water Limited Bahamas Supreme Court Claim No. 896 (unreported) delivered November 16, 1999. 88 See Gladston Joseph v First Caribbean International Bank Claim No ANUHCV 531 of 2003 Antigua and Barbuda HC (unreported) delivered May 22, 2008. 89 Hackett v Caribbean Examination Council (1988) 40 WIR 38; Burrill v Schrader (1995) 50 WIR 193; contrast the Barbadian case of Caribbean International Airways Ltd v Waithe Civil Appeal No.3 of 1988 [BB 1990 CA 18], where ‘total remuneration’ under the Holiday With Pay Act Cap 348 was interpreted narrowly to exclude car allowance and airline travel entitlements. 90 See Lavarack v Woods of Colchester Ltd [1967] 1 QB 278, [1966] 3 All ER 683 and Allied Stores v Godfrey (1990) 27 JLR 421 SC. 91 [2004] IRLR 942, [2005] ICR 402; see also Clark v BET plc [1997] IRLR 348 and Mallone v BPB Industries plc [2002] IRLR 452. 92 [2000] IRLR 766. 93 Claim No. CV 3438 of 2007 (unreported) delivered March 11, 2009 [TT 2009 HC 39]. 94 Claim No. CV 2009-04464 (unreported) delivered January 18, 2012. 95 Claim No HCV 05595 (unreported) delivered December 14, 2011. 96 [1909] AC 488. 97 See also Hinds v Barbados Board of Tourism Suit No. 1196 of 1986 (unreported) delivered October 16, 1990 [BB 1990 HC 60]. 98 Marbe v George Edwards (Daly’s Theatre) Limited [1928] 1 KB 269; Ricardo Welsh v 91.9 Trinibashment Limited Claim No. CV 2009-04464 (unreported) delivered January 18, 2012, where the employee’s wrongful dismissal from his job as a radio announcer reduced the opportunity to enhance his existing reputation, as he lost publicity. 99 Dunk v George Waller [1970] 2 QB 163. 100 [1995] IRLR 50. 148 Commonwealth Caribbean Employment and Labour Law procedure was five months and awarded damages accordingly. However, a court or tribunal cannot hypothesize on whether the procedure would have been advantageous to the employee in making an award of damages.101 In all these cases, consideration will also be given to the contractual principle surrounding whether or not the employee tried to mitigate his losses resulting from the wrongful dismissal in deciding the monetary value of damages to be awarded.102 However, in seeking to mitigate, the employee must act reasonably.103 He is not obliged to accept any job which may be available or even provided by the previous employer, especially one that is below his qualifications.104 Mitigation may be avoided in cases where there is contractual provision allowing the claimant to work during the notice period,105 or where there is a PILON clause.106 It should also be noted that a claim for wrongful dismissal is one for special damages and, as such, must be specifically pleaded in order to succeed.107 In the Jamaican case of Kaiser Bauxite Company v Vincent Cadien108 the Court of Appeal rejected the trial judge’s assertion that (i) the denial of the privilege of future advancement in the company, and (ii) the very high-handed manner in which the plaintiff was removed after 13 years of dedicated service, were relevant consideration where assessing damages for wrongful dismissal. Carey JA observed that the learned judge cited no authority for these factors as permissible heads for an award of damages in an action for wrongful dismissal. He affirmed that: … the plaintiff’s claim is founded in contract, not in tort, and the general rule as respects damages, in breach of contract is the loss flowing from the breach. In the case of wrongful dismissal, that would be the estimated pecuniary loss resulting as a reasonable and probable consequence from the premature determination of the employee’s service. Subject to the plaintiff’s obligation to mitigate his loss, he would be entitled to wages due and payable for the agreed period of service.109 The measure of damages applied by the court in Kaiser, in the absence of an express agreement on the period of notice, was six weeks. This period was deemed reasonable and in alignment with the provision under the Employment (Termination and Redundancy Payments) Act,110 which stipulates that an employee is entitled to be given six weeks’ notice of termination if no cause for dismissal was established, based on his years of service. It was noted that the probabilities of the employee obtaining employment elsewhere should also be taken into account which, in effect, is the manifestation of the employee’s duty to mitigate his loss. This indication was followed in Boris Smith v Dominion Life Assurance Company,111 where an employee was dismissed when he refused to take up a new position in 101 Janciuk v Winerite Ltd [1988] IRLR 63. 102 See Darbishire v Warran [1963] 1 WLR 1067; also The Soholt [1983] 1 Lloyd’s Rep 605; see Reid v Marshall et al Suit No. 3023 of 1995 (unreported) delivered May 13, 2010 [TT 2010 HC 133], where the High Court in Trinidad ruled that, based on the age and specialised nature of the employment of the claimant, there was no need to examine whether he was required to mitigate his losses on dismissal [para 132]. 103 Fyfe v Scientific Furnishings [1989] ICR 648 – ‘the plaintiff must take all reasonable steps to mitigate his loss and cannot recover damages or any … loss which he could have … avoided but has failed through unreasonable action or inaction to avoid’; for a Caribbean example, see Ricardo Welsh v 91.9 Trinibashment Limited Claim No. CV 2009-04464 (unreported) delivered January 18, 2012. 104 See Yetton v Eastwood Froy Ltd [1967] 1 WLR 104 and Edwards v SOGAT [1971] Ch 354. 105 Gregory v Wallace [1988] IRLR 387. 106 See discussion above …. 107 Phillips v Orthodox Unit Trusts Ltd [1958] 1 QB 314 and Baugh v Courts (Jamaica) Limited et al. Suit No. CL. B.099 of 1997 (unreported) delivered October 6, 2006. 108 (1983) 20 JLR 168 (CA). 109 Ibid. at 178. 110 See s 3(1)(c). 111 (1986) 23 JLR 328 (SC). Chapter 5: Dismissal at Common Law and Discharge 149 another location. The court, having determined that the employer’s assertion of the employee being guilty of misconduct was unsubstantiated, held that inadequate notice was given and therefore the dismissal was unlawful. It was clarified that the proper measure of damages ought to be determined by the status of the particular employee. Given the summary manner of the employee’s dismissal in Boris Smith, it would not have been easy to gain alternative employment in the insurance industry, thus one year’s notice was deemed tantamount to damages equal to one year’s salary and the commissions he would have earned during the period, as well as loss of pension benefits. However, in the case of fixed-term contracts which excluded express terms for notice or payment in lieu thereof, the measure of damages would be calculated on the basis of the salary and benefits payable for the remainder of the unexpired term.112 Thus in Ingraham v Ruffins Crystal Palace Hotel Corp Ltd113 the Bahamian Supreme Court ordered the employer to remit $140,543.29 to the claimant which represented the outstanding sum payable for the balance of the two-year contract, after he was wrongfully dismissed. In relation to claims by an employee, this principle has been statutorily enshrined in Belize114 with a commensurate provision made applicable where the employer seeks redress but only extending to half of the monetary entitlement.115 In Trinidad and Tobago, Chief Justice De La Bastide in the Court of Appeal’s decision of Albert v Alstons Building Enterprises Ltd116 expounded that: The obligation to give notice of termination being independent of the obligation to pay severance benefits, an employee who is entitled either by contract or under statute (Retrenchment and Severance Benefits Act 1985) to be paid severance benefits, is entitled to them even if he is given proper notice of termination for redundancy. Therefore his severance entitlement does not accrue as a result of his wrongful dismissal and does not fall to be deducted from the damages to which he is entitled in respect of it. The position is different, however, if his contract of employment is for a fixed term and contains no provision for earlier termination by notice. If a person under such a contract is terminated before the end of his term without lawful justification, then he qualifies for severance payments, these will be deducted from the damages he receives for wrongful dismissal, because if there had been no wrongful termination of his contract but it had been allowed to run its course, he would not have qualified for any severance benefit.117 As it relates to damages in cases where the employee is in breach of the notice provisions, the employer is also entitled to seek monetary compensation.118 In this regard the employer cannot withhold any remuneration due to the employee as payment of any assessed damages or, indeed, for any other amounts owing to them in the absence of an express contractual clause to this effect.119 It should be noted that, in practice, this right is usually not pursued by employers due to its impracticality and often minuscule monetary reward. The exception occurs where contractual provisions make it lucrative to advance the claim due to the nature of the employment. However, if, as in the case of the Bahamas,120 legislation makes specific provisions 112 See Dexter Ducreay v Dominica Water and Sewerage Company Ltd Eastern Caribbean Court of Appeal No. 20 of 2004 (unreported) delivered October 14, 2004. 113 Suit No 808 of 1997 Bahamas SC (unreported) delivered June 8, 2000 [BS 2000 SC 18]. 114 Labour Act, s 39(1). 115 Ibid., s 39(2). 116 Civil Appeal No. 37 of 2000 (unreported) delivered November 13, 2001 [TT 2001 CA 56]. 117 Ibid. at 9. 118 Huttman v Boulnois (1826) 2 C & P 510. 119 George v Davies [1911] 2 KB 445; Henry Shivers v Aquapure Water Limited Bahamas Supreme Court Claim No. 896 (unreported) delivered November 16, 1999; Guerra v Belize Cane Farmers Association Belize Supreme Court Suit No. 46 of 2003 (unreported) delivered May 21, 2010 [BZ 2010 SC 28]. 120 Employment Act, s 29(3). 150 Commonwealth Caribbean Employment and Labour Law to that effect, the employer may be allowed to appropriate any outstanding amounts owing to employees from any monetary entitlement due to them under the notice provisions. Exemplary damages Commonwealth Caribbean jurisdictions are not ad idem on the question of whether exemplary damages may be awarded for wrongful dismissal. In Jamaica, the Court of Appeal in Cocoa Industry Board and Cocoa Farmers Development Co Limited; F.D. Shaw v Burchell Melbourne121 decided that the incorrectness of such an award was unassailable. The Court of Appeal applied the principle in Kaiser Bauxite Co v Vincent Cadien122 that the measure of damages for breach of the employment contract, where an employee is dismissed without notice, is the amount of such wages that he would have been paid for the pertinent notice period, had he worked, and is to be regarded as liquidated damages.123 In the Cocoa Industry Board case the contract stipulated termination by one month’s notice on either side or one month’s pay in lieu of notice; the employer gave one month’s pay in lieu of notice, stating that the overall performance of the employee was below expectations, and that he had betrayed the confidence and trust placed in him as a responsible officer. The Court of Appeal held that the trial judge erred in a finding of wrongful dismissal, as ‘the tendering of one month’s wages in lieu of notice is cogent evidence that the dismissal was not for cause’.124 In respect of the ex-employee’s claim for an award of exemplary damages, Wolfe JA cited Rookes v Barnard125 as authority for the rule of law that exemplary damages may only be awarded in actions in tort, and then only in a limited category of cases. Relying on the House of Lords decision in Addis v Gramophone Co Ltd,126 he also dismissed the contention that an award of aggravated damages could be made. In contrast to Jamaica, the judiciary in Trinidad and Tobago adopted a diametrically opposed view to the award of exemplary damages in Torres v Point Lisas Industrial Port Development Corporation Ltd.127 In this case the employer accused the employee of theft from the employer’s warehouse and threatened him with arrest and search. The employer forced the employee to sign a letter of resignation by falsely threatening that he had warrants of arrest and search. In declining to follow Addis v Gramophone, Rookes v Barnard and Cassell & Co Ltd v Broome128 the Court of Appeal of Trinidad and Tobago held that: It was within the competence of the court to develop the law to permit the award of exemplary damages where the defendant’s conduct had been reprehensible and to determine on principle whether exemplary damages should be allowed in claims of contract. The proper approach would be to focus on the conduct of the defendant as a whole: whether the facts disclosed reprehensible conduct tending to take advantage of every chance of success to the plaintiff’s disadvantage; whether it was outrageous, highhanded and egregious; whether the misconduct was planned and deliberate; whether the defendant had tried to conceal the misconduct. If the breach was committed in such a manner in disregard of the plaintiff’s rights, then an award of exemplary 121 (1993) 30 JLR 242 (CA). 122 (1983) 20 JLR 168. 123 See also Casey Wilson-Brown v National Solid Waste Management Authority et al Claim No. 2008 HCV 04100 (unreported) delivered March 1, 2012. 124 Ibid. See Wolfe JA at p. 246C-E. This precedent was applied in Lisa Mae Gordon v Fair Trading Commission HCV 2699 2005 (unreported) (SC) delivered March 28, 2008 - where it was underscored that, once the terms of the contract in relation to termination were adhered to, there can be no wrongful dismissal. The fact that the letter of termination makes mention of other matters and concerns does not diminish the fact that the contract was observed. 125 See [1964] 1 All ER 367 HL. 126 [1909] AC 488. 127 (2007) 74 WIR 431. 128 [1972] 2 WLR 642. Chapter 5: Dismissal at Common Law and Discharge 151 damages would be appropriate. However, the award of exemplary damages in breach of contract cases would be rare … What was relevant was the quality of the conduct of the contract breaker and not the legal category of the wrong. Commonwealth Caribbean academic Professor Eddy Ventose describes this decision as controversial, but he also intimates that ‘it is to be applauded, because it signals a new approach to the development of the common law in the Commonwealth Caribbean’.129 He reasoned that, despite the criticisms that may be levelled at the arguments advanced by the judges in the decision (all of whom concurred but on varying precepts), there was no obstruction preventing Commonwealth Caribbean courts from elaborating their own common law.130 Stigma damages A new category of damages emerged in the decision of Malik v Bank of Credit and Commerce International (BCCI)131 which brought into question the traditional Addis measurement of damages in relation to injury to reputation and future employment prospects. In this case, the House of Lords carved out a new head of damages where the employer (by virtue of the dishonest manner in which it operated its business) breached the implied contractual term of mutual trust and confidence, thereby making it virtually impossible for the employee to source employment after being dismissed.132 The ‘stigma’ attached to the employee must, however, result in an ascertainable financial loss, recoverable as damages, and does not extend to an employer’s actions occurring at dismissal but only to its prior behaviour which could lead to dismissal. This distinction has not been the easiest to ascertain, especially when the actions are almost inextricably encompassed in one fluid transaction. However, the court will not countenance the former claim, since this mischief is addressed by unfair dismissal legislation. Thus, in the seminal case of Johnson v Unisys Ltd133 the House of Lords refused to extend the common law wrongful dismissal claim for damages in cases where the employers’ impugned actions occurred at the point of dismissal; therefore, it dismissed Mr Johnson’s assertion that the manner of the dismissal caused a mental breakdown which inhibited his ability to find work. This decision must be contrasted with Eastwood v Magnox Electric plc134 which allowed a claim for damages where the employer’s actions amounted to a campaign to demoralise and undermine the employee but was instigated before the dismissal procedure began, resulting in psychiatric injury. In the Commonwealth Caribbean, the issue of whether a breach of the implied term of mutual trust and confidence may effectively ground a claim for wrongful dismissal has also found its way for resolution by the court. The Jamaican courts, while recognising the existence of the term, have so far declined to rely on it to award damages for mental stress, emotional turmoil, embarrassment and injury to feelings engendered on dismissal. The issue was examined in Edward Gabbidon v RBTT Bank of Jamaica135 which concerned the dismissal of the claimant employee, who was in charge of the bank’s Information Technology department when a technical operation problem in their computer system caused the company 129 Ventose, E. (2010) ‘Yesterday’s Heresy, Today’s Orthodoxy: Exemplary Damages for Breach of Contract in the Commonwealth Caribbean’, Oxford University Commonwealth Law Journal Volume 9 No 2, p 149 at 150. 130 Ibid. at 153; Ventose suggests that, like Canada, Commonwealth Caribbean jurisprudence could be developed without first waiting for the House of Lords to do so. 131 [1997] IRLR 462. 132 Bank of Credit and Commerce International (BCCI) v Ali [2002] IRLR 460 – the stigma must be the real and substantial cause of the employee’s inability to gain employment. 133 [2001] IRLR 279; this principle was recently affirmed in Edwards v Chesterfield NHS Foundation; Botham v Ministry of Defence [2012] IRLR 129. 134 [2004] IRLR 733, [2004] 3 All ER 991 HL. 135 Supreme Court Claim No HCV02775 2005 (unreported) delivered June 24, 2010. 152 Commonwealth Caribbean Employment and Labour Law significant losses. The termination, though in conformity with the contractual obligation to give notice or payment in lieu, was allegedly executed in breach of the implied duty of trust of confidence. A substantial amount in damages was claimed in that regard. Williams J, in dismissing the case, recognised the thin line between the actions of the defendant company while investigating the incident which could amount to a breach of the implied term and ‘unfair dismissal’. Nevertheless, he was of the view that these actions did not reach the standard of a breach and, as such, he could not depart from the Addis principles to order damages. Similarly, in the Bahamian case of Campbell v Colina Insurance Company136 the High Court refused to award damages claimed by the employee for the ‘stigma attached to Mr Campbell’s dismissal, given the manner of the behaviour of the employer … may damage Mr Campbell’s future employment prospects’.137 Besides being unconvinced that there was a breach of the implied term, the court also opined that the actions complained of by Mr Campbell were not attributable to the company, but to an individual associated with it but not acting on its behalf. Thus, the employer would not have been liable in any event. It appears that Commonwealth Caribbean jurists, while acknowledging the expansion of the UK common law in relation to breach of the mutual trust and confidence implied term, have generally been unwilling to move beyond the Addis guidelines in respect of awarding stigma damages for wrongful dismissal. However, in the Bahamian case of Cash, Sr. and Cash v Bahamas National Baptist Missionary & Education Convention et al,138 Lyons J appears to have endorsed the concept and awarded damages for loss of reputation and inability to gain alternate employment based on the manner of the claimant’s dismissal. The judgement asserted that there was no wrongful dismissal, in its classic meaning, since payment in lieu of notice was received. It sought to distinguish, however, between ‘unfair dismissal in its natural meaning’ (a claim which could be sustained at common law) and the statutory action of unfair dismissal under the Employment Act.139 Lyons J asserted that, while the former claim could not have been brought in the UK following the dicta in Johnson v Unisys, claimants in the Bahamas were not so hamstrung since the Parliament did not exclude such actions otherwise than under the statute. Therefore he concluded that ‘Mr Cash has a right to bring his unfair dismissal claim at common law. He is able to utilize the implied term of trust and confidence, apply it to the circumstances of his dismissal and litigate it in the ordinary courts of law.’140 The court’s reasoning that ‘unfair dismissal in its natural meaning’ is to be interpreted as the unjust treatment of the worker at the time of his termination is indeed novel. Lyons J’s position could well be understood when examined in light of the fact that the Bahamian legislation only considers certain narrow grounds for unfair dismissal protection141 which would clearly not cover a wide gamut of potential complaints. This decision, however, appears to be limited to its particular facts and does not represent the majority standpoint in the Bahamas, as evidenced by the Court of Appeal decision in Royal Bank of Canada v Ingrid Cambridge142 and in other Caribbean jurisdictions. There has, however, been a recent development in Jamaica as evidenced in the case of United General Insurance Company Limited v Marilyn Hamilton,143 where the defendant sought a 136 Suit No. 33 of 2005 Commercial Division (unreported) delivered February 23, 2006. 137 Ibid., para 44. 138 Suit No. 771 of 2003 Common Law and Equity Division (SC) (unreported) delivered June 5, 2007. 139 Ibid., para 65. 140 Ibid., para 108. 141 Employment Act, ss 35–42 encompass trade union membership and pregnancy. 142 Civil Appeal No 4 of 1984 Bahamas CA (unreported) delivered February 13, 1985 [BS 1985 CA 9], where the court reversed an award of the Industrial Tribunal that the claimant was to receive damages for loss of reputation in the banking industry. 143 Claim No. HCV 01124 (unreported) delivered July 29, 2008 (SC); confirmed in Supreme Court Civil Appeal No. 88 of 2008 (unreported) delivered May 15, 2009. Chapter 5: Dismissal at Common Law and Discharge 153 preliminary order to have certain claims made in the plaintiff’s wrongful dismissal action struck out. They argued that: wrongful dismissal is an award of damages and since an employer may always give notice to terminate the contract of employment the recoverable damages are capped by the emoluments that would be earned in the notice period … having been fully paid her entitlements no further scope remains for damages for injured feelings, loss of reputation, difficulty in finding fresh employment and the like.144 Therefore, they contended that part of this claim ought properly to be dismissed since, following the Addis guidelines, it was highly unlikely to succeed. The court of first instance dismissed the request. Upon appeal by the company, Morrison JA, delivering the Court of Appeal’s judgement, reviewed the decisions in Malik, Magnox Electric and Johnson and concluded that, although Addis had not been overruled, ‘the concept of the employment contract as an ordinary commercial contract which it enshrined was wearing thin’.145 He further opined that there appeared to be a change in the law’s attitude towards the employment relationship and, in the absence of comprehensive unfair dismissal legislation in Jamaica, ‘… the question of whether it was open to our courts to develop the law … by implying a suitable term in the employment contract was “finely balanced”’.146 The application was therefore dismissed and the matter remitted for a substantive trial of the issues. In deciding the matter,147 Sinclair Haynes J expressed the view that the claim made by the plaintiff was clearly one premised on the employer’s alleged breach of the implied term of trust and confidence which caused the claimant to suffer financial loss. She also opined that this was a completely different proposition from the Addis exclusion, which estopped an award of damages for anxiety and depression as a result of the manner of dismissal. In reviewing the case authorities, Her Ladyship concluded that the English law made specific provision for matters of this nature to be adjudicated in the employment tribunals and, since the Labour Relations and Industrial Disputes Act (which was the only comparable legislation) did not comprehensively address the issue, ‘Jamaica is therefore free of the statutory impediment which blocks the development of the English common law in relation to dismissal cases which are in breach of the contract and not captured by Addis’.148 In this regard the learned judge further opined that this jurisdiction was ‘at the cusp of jurisprudential development … the gate is open for the development of our jurisprudence. More than a century has elapsed since the decision in Addis; societal norms are dynamic. The common law therefore cannot stagnate. Judges do have a role, within legal parameters in its development.’149 Anchored in this view, she declared that ‘there should be no reticence about implying a term which compensates an employee who has suffered financially as a result of the manner in which he was dismissed and which results in pecuniary loss’.150 Examining the evidence, the court took the view that it was reasonable for the claimant not to expose herself to likely embarrassment by seeking employment in circumstances where she would have to disclose that she was allegedly dismissed for dishonest behaviour. She was awarded one year’s notice which the court considered reasonable in the circumstances. Additionally, damages 144 Ibid. at 11. 145 Ibid. at 20. 146 Ibid. at 22. 147 Marilyn Hamilton v United General Insurance Company Limited [2013] JMCC Comm. 18 (unreported) delivered December 13, 2013. 148 Ibid. para 82. 149 Ibid. para 84. 150 Ibid. 154 Commonwealth Caribbean Employment and Labour Law were awarded in relation to wrongful termination and loss as a result of loss of advantage on the labour market, motor vehicle allowance, and pension contributions. This decision will no doubt fuel further litigation, both on appeal and generally, since the fine distinctions made by Her Ladyship indeed present a shift away from the conventional legal position in relation to wrongful dismissal. It has also vividly brought to the fore the unsustainable position which exists in relation to the opaque legislation governing unjustifiable dismissals in Jamaica. This judgement must surely be a catalyst for the legislature to re-examine the LRIDA with a view to clarifying the outer bounds of the statutory principle while concurrently creating specificity of the circumstances within which the IDT should operate in this regard. Distinction between wrongful dismissal and unfair dismissal In light of the foregoing discourse, it is necessary to clarify that wrongful/unlawful dismissal and unfair/unjustifiable dismissal151 are not of the same genus. The latter is entirely a creature of statute, while the former is strictly a common law claim.152 Okpaluba and Rubin,153 in outlining the precepts of wrongful dismissal and tracing the development of the unfair dismissal legislation in the Commonwealth Caribbean with special reference to Trinidad and Tobago, brought to the fore some of the major distinctions between the two (see table below). The judiciary within the region have also recognised the nature of the variance in many cases and the implications for cases brought before them for determination. Barbadian Chief Justice Simmons in Wood v Caribbean Label Craft Limited,154 a case decided before the enactment of the Employment Rights Act, stated: In Barbados we have no law of unfair dismissal which is a creature of statute. Our law rests upon the common law doctrine of wrongful dismissal arising from a breach of the implied terms of the contract of employment or, as is often expressed in the vocabulary of labour law, a failure to observe obligations under the contract. Thus, English decisions must be read with a discerning eye and an analytical mind. As the saying goes, as regards the two jurisdictions, we are ‘not comparing apples with apples!’ Likewise, in Trinidad and Tobago, Khan J of the Industrial Court in Union of Commercial and Industrial Workers v El Dorado Consumers Co-operative Society Limited155 elaborated the specialised nature of the industrial court and took pains to point out that it was not bound by the common law and had no jurisdiction to deal with a claim of wrongful dismissal. It only has jurisdiction to deal with dismissals that are harsh and oppressive or not in accordance with the principles of good industrial relations practice. The situation is much the same in Jamaica where, in Lindon Brown v Jamaica Flour Mills Ltd,156 the claimant worker instituted a claim for wrongful and unfair dismissal in the Supreme Court. Sinclair-Haynes J was of the view that, as the claimant instituted proceedings in the 151 Fully discussed in Chapter 6. 152 Halsbury’s Laws of England (5th Ed., 2009) Volume 40, para 780. 153 Okpaluba, C. and Rubin, D. (1974) ‘Dismissal and Reinstatement in a West Indian Jurisdiction’ 3 AngloAmerican Law Review 251. 154 Magisterial Appeal No. 11 of 2001 (unreported) delivered July 16, 2003; see also Edgehill Associates Ltd v Thomas Suit No 14 of 1984 (unreported) Barbados SC delivered January 25, 1985 [BB 1985 DC 2]. 155 TD 72/2000 (unreported) delivered June 28, 2001; see also Banking Insurance and General Workers’ Union v Hindu Credit Union Co-operative Society TD 2/2001 (unreported) delivered July 31, 2001. 156 Suit No. CL 2000/B199, SC (unreported) delivered on December 15, 2006; see also Calvin Cameron and Security Administrators Ltd Claim No. 2007 HCV 02271, [2013] JMSC Civ 95 (unreported) delivered June 26, 2013; The Chairman, Penwood High School’s Board of Management v The Attorney-General of Jamaica and Loana Carty Supreme Court Civil Appeal No. 18/2013, [2013] JMCA Civ 30 (unreported) delivered July 25, 2013. Chapter 5: Dismissal at Common Law and Discharge 155 Supreme Court, he invoked the court’s common law jurisdiction. The learned judge further stated that the Labour Relations and Industrial Disputes Act and its Code were the relevant Jamaican statutes which provide the employee with an alternative to the common law action. In regrettably deciding that there was no alternative but to dismiss an obvious case of ‘man’s inhumanity to man’, she opined that: It is axiomatic that this claim was instituted for wrongful dismissal at common law. The claimant is therefore deprived of the remedies which would have been available to him had he proceeded under the LRIDA. He is denied the right to any security of employment and the right to a humane manner of dismissal, which the LRIDA and its Code would have accorded him.157 Thus, one of the most critical distinguishing features of the two concepts is that ‘… unfair dismissal involves an enquiry into the overall merits of the dismissal (substance and procedure) whereas the common law action for wrongful dismissal essentially … looks typically at the form of the dismissal’.158 Therefore, a person can be both terminated wrongfully and unfairly dismissed on the same set of facts and can, in principle, claim redress for both wrongs; the two are not mutually exclusive.159 In the Trinidadian case of Banking Insurance and General Workers’ Union v Hindu Credit Union Co-operative Society160 the Industrial Court ruled that the institution of a wrongful dismissal action did not constitute a bar for the hearing of a trade dispute alleging harsh and oppressive treatment. It has been widely thought that, in practice, the institution of unfair dismissal protection is, however, more beneficial to the worker in terms of expanded range of benefits and the less adversarial nature of the mechanisms used by the specialised court and administrative structures to settle such cases. It should be noted that, in certain cases (such as fixed-term contracts without an express notice clause), it may be more advantageous to take recourse to the ordinary courts, based on the measure of damages in assessing awards. 161162 163 164 Table 6 Major Differences between Wrongful and Unfair Dismissal Legal concern Wrongful dismissal Unfair dismissal Forum actionable Remedy available Ordinary courts Industrial tribunal/court Damages, declaration, injunction, Monetary compensation, specific performance161 reinstatement, re-engagement Employment None Period of continuous employment qualification period after the expiration of statutory probation162 Limitation period Usual statute of limitations for Varying timeframes for making claims civil claims163 dependent on Caribbean State164 (Continued) 157 Ibid. at 13. 158 See Smith, I. et al. (2010) Smith and Woods Employment Law (10th Ed., Oxford University Press) at 418. 159 In the UK, wrongful dismissal claims up to £25,000 can also be made in the employment tribunal; although, if a claimant wishes to do so, he must specifically indicate the wish to do so. See also Soteriou v Ultrachem Ltd [2004] IRLR 870. 160 TD 2/2001 (unreported) delivered July 31, 2001. 161 Note that this is only granted in limited cases. 162 Note that Barbados set a minimum of one year’s continuous employment as the threshold (Employment Rights Act, s 27(3)). 163 This is six years in most countries. 164 Open ended, but must be done within a reasonable time in all jurisdictions save for the following countries: Belize claim must be made to Tribunal within 21 days (Labour Act, s 203); Grenada claim must be made within three months (Employment Act, s 82(1)); Jamaica claim must be made within 12 months for disciplinary matters (Labour Relations and Industrial Disputes Act, s 11B); Barbados claim must be made within three months or within any extended timeframe allowed by the Tribunal on a finding that it was not reasonably practicable to do so (Employment Rights Act, s 32); Bahamas claim must be made within 12 months of trade dispute relating to unfair dismissal arising (Industrial Relations Act, s 68 and Employment Act, s 41). 156 Commonwealth Caribbean Employment and Labour Law Table 6 Major Differences between Wrongful and Unfair Dismissal (Continued) Legal concern Wrongful dismissal Amount of claim Limited to amount payable for In discretion of tribunal/court, except notice, contracted figure or in countries with statutory guidelines remainder of unexpired fixedfor calculation term contract No or inadequate notice or Reason, manner and procedure used in payment in lieu thereof; reasons dismissal examined for dismissal unimportant, except in summary dismissals Workers/employees defined by statute166 All workers165 Rationale for claim Who can claim Unfair dismissal 165166 The peculiar case of Barbados Prior to the passage of the Employment Rights Act of 2012, Barbados struggled with the question of wrongful dismissal and how the common law notice rule may be applied in a contractually legitimate fashion. The classic formulation of wrongful dismissal remained dominant167 in that jurisdiction until the seminal Court of Appeal decision in Barbados Plastics v Juliette Taylor,168 where Williams CJ (Ag) ruled that ‘… the meaning of wrongful dismissal is not dismissal without reasonable notice but dismissal without good cause’.169 In the context of Section 45 of the Barbados Severance Payments Act 1971,170 it therefore became critical to make the distinction between dismissal ‘without good cause’ and the common law principle of dismissal ‘without reasonable notice or adequate payment in lieu of notice’. It would appear from the decision that ‘[i]n effect there has been a judicial creation of a form of unfair dismissal’171 in Barbadian jurisprudence.172 Cumberbatch posits that the Barbados Plastics ratio was ‘of dubious legal validity, at least theoretically, since it was based on defective statutory interpretation’.173 He further opined that ‘… since there was a settled meaning of wrongful dismissal at common law, it ought to have been presumed in the absence to the contrary … that it was the intention of the draftsman to 165 This does not include independent contractors. 166 Public service employees are a notable exception. 167 See Bacchus, R. (1991) ‘Developments in the Law of Wrongful Dismissal in the Commonwealth Caribbean’ 1 Caribbean Law Review 13 at 14. 168 (1981) 16 Barb LR 79. 169 Ibid. at 81; this dictum was followed in Watts v Paper Converters Ltd Suit No 931 of 1982 (unreported) delivered June 9, 1983 [BB 1983 HC 42]. 170 Cap. 355A. Section 45(1) reads:‘(1) Notwithstanding any rule of law to the contrary, where, in an action brought by an employee against an employer for breach of their contract of employment, the employee claims damages for wrongful dismissal, the Court shall, if (a) it finds that the employee was wrongfully dismissed; and (b) it is satisfied that, had the employee been dismissed by reason of redundancy or natural disaster, the employer would be liable to pay him a severance payment, assess those damages at an amount not less than such severance payment.’ 171 See Cumberbatch, J. (1992) ‘Without Good C[l]ause: Unfair Dismissal in Barbados’ in Kodilinye, Gilbert and Menon, P.K. (eds) Commonwealth Caribbean Legal Studies (Butterworths/University of the West Indies) 267 at 283. 172 In Barbados Plastics, Williams CJ stated that ‘… whether a dismissal is wrong cannot depend on whether or not notice is given … where there is no good cause for the dismissal of the employee he can invoke Section 45(1) [of the Act]’. 173 See Cumberbatch, J. (1995) ‘Wrongful Dismissal and the “Retreat” from Barbados Plastics’ 24 AngloAmerican Law Review 213 at 216; see also the view held by Bacchus, R. (1991) ‘Developments in the Law of Wrongful Dismissal in the Commonwealth Caribbean’ 1 Caribbean Law Review 13 at 22–25 that the decision ‘could not be defended in terms of its legal accuracy’. Chapter 5: Dismissal at Common Law and Discharge 157 continue its meaning’.174 However, it appears that the courts felt obliged, in the absence of express legislative provisions delineating unfair dismissals, to manipulate the available statutory framework to assist workers, especially those of ‘long standing’, in accessing appropriate compensation where they were obviously unfairly treated at termination.175 Other challenges emanated from the judgement: did it import a new implied term of ‘dismissal without just cause’ into employment contracts?176 What was the true relationship between the requirements for redundancy and that for the payment of damages for wrongful dismissal? Should ‘just cause’ be equated with providing justification or reasons for dismissal?177 When these issues were examined in a trilogy of cases from the 1990s, the common law principle of lawful dismissal by way of adequate notice (or payment in lieu thereof) was apparently embraced de nouveau by virtue of the court’s refusal to follow outright the precedent set in Barbados Plastics.178 However, the matter was further complicated by the fact that this decision was never fully overruled. In Clarke et al v Nathu179 the magistrate at first instance awarded a total of five weeks’ pay in compensation for the summary dismissal of Nathu who was employed for 15 months. This award was demarcated as three weeks’ wages as ‘adequate compensation for her period of employment’ (no doubt inspired by Section 45 of the Severance Payments Act) and a further ‘sum of $270.00 being 2 weeks’ pay in lieu of notice’.180 On appeal, this approach was disapproved since the worker did not meet the statutory minimum employment threshold for accessing severance payments under the Act and would therefore not have been entitled to the former amount. Further, the Court of Appeal relied on the dicta in Fuller v Revere Jamaica Alumina Ltd,181 which outlined the conventional principle for the measure of damages on wrongful dismissal, in concluding that the respondent was only due damages commensurate to the amount of notice required to lawfully dismiss. In Correia’s Jewellery Store Ltd v David Forde182 the Barbadian Court of Appeal confined itself to an examination of the correctness of the Barbados Plastics approach to awarding damages. It agreed that, once wrongful dismissal was found on the facts of the case, and the claimant would have met the requirement for a severance payment, the damages recoverable cannot be less than that assessed figure. What was interesting, however, was that the Court of Appeal relied on the dicta in Delaney v Staples183 in concluding that Barbados Plastics was correct (even though that decision was not operative at the time) and this could have led to the ‘… strong inference 174 See Cumberbatch, J. (1992) ‘Without Good C[l]ause: Unfair Dismissal in Barbados’ in Kodilinye, G. and Menon, P.K. (eds) Commonwealth Caribbean Legal Studies (Butterworths/University of the West Indies) 267 at 275. 175 This view is echoed by Antoine, R.-M. B. (1992) The CARICOM Labour Law Harmonisation Report (Faculty of Law University of the West Indies) p 331, where she stated – referring to Barbados Plastics and Scholar v Hess Oil St. Lucia Suit No. 149 of 1984 (unreported) delivered July 7, 1987 – that the judiciary in these two jurisdictions which contained no specific unfair dismissal legislation creatively expanded the traditional scope of ‘wrongful dismissal’ to mean ‘unfair dismissal’ in an attempt to prevent injustice to workers who had been dismissed without notice. 176 This notion appears to be advanced by counsel in Maloney v Furniture Limited [1988–89] 1 Caribbean Commercial Law Reports 173 at 179, where the court held that the employee was wrongfully dismissed by the indefinite suspension of the contract for which there was no just cause since she was only trying to protect herself ‘by not signing a document that would have incriminated her’; it was also recently relied on in Michael Moore v Turtle Beach Resort Limited Magisterial Appeal No. 1 of 2010 (unreported) delivered April 13, 2010. 177 See discussion in Bacchus, R. (1998) ‘Wrongful Dismissal in Barbados Revisited: The Problem of Notice’ 8 Caribbean Law Review 239 at 245–248. 178 See Cumberbatch, J. (1995) ‘Wrongful Dismissal and the “Retreat” from Barbados Plastics’ 24 Anglo-American Law Review 213. 179 (1992) 27 Barb LR 291. 180 Ibid. 181 (1980) 31 WIR 304. 182 (1992) 46 WIR 57, (1992) 28 Barb LR 180. 183 [1992] 1 All ER 944. 158 Commonwealth Caribbean Employment and Labour Law that the Chief Justice was reverting to the common law position that the contract of employment may in some circumstances be lawfully terminated by the giving of notice’.184 In Grosvenor v The Advocate Co Ltd185 the Barbadian Court of Appeal provided the clearest sign yet that it was inclined to retract the extreme position taken in Barbados Plastics; but even then it was unprepared to go past saying that ‘… statements made in the judgment were misleading and should be corrected’.186 In the instant case, the appellant was purportedly given six months’ notice of ‘retirement’ after just over a year before he was advised that the respondents had renewed his three-year contract in similar terms. At first instance, he claimed: wrongful dismissal contingent on the breach of an implied term not to be dismissed without good cause, or alternatively on reasonable notice; wrongful termination/constructive dismissal occasioned by the removal of director’s fees; and the breach of his fixed-term contract. The High Court found the contract was terminated without good cause, and awarded damages based on the accrued remuneration up to the end of the fixed term; no mention was made of the provisions of Section 45(1). The Appeal Court agreed with the ruling of the court below, but relied on the principle stated in Stirling v Maitland187 in arriving at its decision: … if a party enters into an agreement which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances under which alone the arrangement can be operative.188 Thus, Williams P concluded that there was an implied understanding that the respondents would not terminate the appellant’s appointment as president of the company before the end of the contractual term. Cumberbatch opined that ‘… this was nothing less than the main obligation under the contract itself as found by the court below [and] there was no need … for reliance on the Stirling v Maitland principle’.189 Importantly, however, in line with classic wrongful dismissal principles, Williams P went further to indicate that, where the contract ran its course or was determined in accordance with mutually agreed provisions or otherwise in accordance with law, there was no room for such a cause of action. As it related to the assessment of damages aspect of the case, the Court of Appeal (in contrast to the lower courts) prayed in aid Section 45(1) of the Severance Payments Act. It set out three conditions precedent for this reliance: an action in damages for wrongful dismissal; a positive finding in that regard; and meeting of the normal prerequisites for a severance payment. Having concluded that Mr Grosvenor was eligible to receive both a severance payment and damages, Williams P indicated that it was the one of greater value that was payable.190 In so doing, the court put to rest the ‘principle’ which had developed allowing two payments to be accessed on a finding of wrongful dismissal.191 A review of these cases no doubt explains why Cumberbatch concluded that, before the passage of the Employment Rights Act 2012: … there was a dual system of wrongful dismissal in Barbados; one the statutory wrongful dismissal to which the presence (or absence) of reasonable notice is irrelevant and damages for 184 Bacchus, R. (1998) ‘Wrongful Dismissal in Barbados Revisited: The Problem of Notice’ 8 Caribbean Law Review 239 at 252. 185 (1994) 30 Barb LR 3. 186 Ibid. 187 (1865) 5 B & S 841. 188 Ibid. at 1047. 189 Cumberbatch, J. (1995) ‘Plastic Surgery – Wrongful Dismissal in Barbados after Grosvenor v The Advocate Co. Ltd. A Comment’ 5 Caribbean Law Review 314 at 327. 190 Principle followed in Chefette Restaurants Ltd v Anna Harvey Magisterial Appeal No. 8 of 2003 (unreported) delivered April 20, 2007. 191 White v Welcome Inn (Barbados) Ltd Suit No 1319 of 1985 (unreported) HC delivered March 9, 1988. Chapter 5: Dismissal at Common Law and Discharge 159 which are assessed in accordance with Section 45 (1); two the common law wrongful dismissal to which … notice is relevant and for which damages are assessed as at the common law.192 This see-saw approach certainly did not augur well for workers in that jurisdiction, as there appeared to be no settled position on when they would be adjudged to be ‘wrongfully dismissed’ and indeed what that term would mean on the facts of any given case.193 As such, Cumberbatch’s assertion – that the Barbados Plastics decision’s role as ‘the mainstay of the Barbadian worker’s job security’194 was a ‘flimsy basis’ on which to anchor such a pivotal right – has much to commend it. Thus, he and others have, on more than one occasion, advocated legislative intervention to address the shortcomings of the confused judicial attempt to protect unjustly treated dismissed workers.195 Finally, heeding the many calls, the Barbadian Parliament proclaimed April 15, 2013 as the date which signalled the dawn of a new regime for Barbados with the entry into force of the Employment Rights Act.196Arguably, this statute represents a balanced approach to employment issues generally. It implements a framework for the treatment of the employment contract, its termination, and unfair dismissal, and provides for the settlement of disputes by an Industrial Tribunal.197 The fact that there are four sections198 on termination of employment and 12 sections199 devoted to unfair dismissal is indicative of the legislature’s preoccupation with curing the mischief of wrongful dismissal outlined above. The task of determining adequate notice periods based on the duration of continuous employment200 and whether remuneration was paid hourly, daily, weekly or monthly was simple. The inclusion of reciprocal obligations to give notice as between the employer and the employee201 was predictable, as was the presumed invalidity of contractual notice periods that are shorter than those fixed by the Act.202 Although the Act adds Barbados to those Commonwealth Caribbean territories that allow for payment in lieu of notice,203 what remains troublesome is the interpretation of ‘payment in lieu of notice’. It is clear that the Act ‘does not prevent either party to a contract of employment 192 See Cumberbatch, J. (1995) ‘Wrongful Dismissal and the “Retreat” from Barbados Plastics’ 24 AngloAmerican Law Review 213 at 228; Bacchus expressed the view that there was controversy surrounding the state of the law, especially whether a contract could be lawfully terminated by giving notice – see Bacchus, R. (1998) ‘Wrongful Dismissal in Barbados Revisited: The Problem of Notice’ 8 Caribbean Law Review 239 at 241. 193 Bacchus, R. (1998) ‘Wrongful Dismissal in Barbados Revisited: The Problem of Notice’ 8 Caribbean Law Review 239 at 256 indicated that ‘after Barbados Plastics one may well ask “what is the law or what are the lawful ways of terminating the contract of employment?”’. 194 See Cumberbatch, J. (1995) ‘Wrongful Dismissal and the “Retreat” from Barbados Plastics’ 24 AngloAmerican Law Review 213 at 216. 195 Antoine, R.-M. B. (1992) The CARICOM Labour Law Harmonisation Report (Faculty of Law University of the West Indies) p 332; Cumberbatch, J. (1993–4) ‘So far as Money Can Do It … Some Aspects of Damages for Wrongful Dismissal in Barbados’ Journal of Individual Employment Rights Vol. 2(2) 165–178 at 174; Cumberbatch, J. (1992) ‘Without Good C[l]ause: Unfair Dismissal in Barbados’ in Kodilinye, G. and Menon, P.K. (eds) Commonwealth Caribbean Legal Studies (Butterworths/University of the West Indies) 266 at 285; Bacchus, R. (1991) ‘Developments in the Law of Wrongful Dismissal in the Commonwealth Caribbean’ 1 Caribbean Law Review 13 at 14. 196 Employment Rights Act 2012-9. 197 It remains to be seen whether this deference for an Industrial Tribunal akin to the Jamaica model, versus an Industrial Court akin to the Antigua and Trinidad and Tobago models, will prove to be a best fit for harmonious industrial relations in Barbados. 198 Employment Rights Act 2012-9, ss 22–25. 199 Ibid., ss 26–37. 200 Arguably a term of art, ‘continuous employment’ appears in most Commonwealth Caribbean legislations as a sine qua non of an employee’s entitlement to notice (see the table above). 201 Ibid., s 22(1)–(4). 202 Ibid., s 22(5). 203 See Caribbean Digest of Legislation on Termination of Employment, November 2008, ILO Sub-regional Office for the Caribbean, Table 2, pp. 108–109. All CARICOM countries except for Trinidad and Tobago have legislative provision for payment in lieu of notice. 160 Commonwealth Caribbean Employment and Labour Law from giving a longer period of notice … or from waiving his right to notice on any occasion or from accepting a payment in lieu of notice’.204 Further, the Act stipulates that a payment to an employee in lieu of notice shall not be valid if the quantum is less than the sum the employee would have been entitled to receive from the employer had the employee worked throughout the period of notice.205 However, it remains ambiguous whether this opt-out provision would render a payment to an employee in lieu of notice ultra vires where the quantum was less than the contract requirement but commensurate with the statutory requirement. Evidently, this would amount to a common law breach of contract but it would not necessarily amount to wrongful dismissal using the Act’s provisions as the yardstick. In effect, this co-mingling of contractual and statutory obligations has created a new problem which the courts/tribunal will eventually have to tackle. Perhaps the better view is that the legislature’s intention was not to make a tabula rasa of common law rules and existing contract principles. Accordingly, an application of the golden rule 206 would tend to suggest that, where an employer opts for a contractual notice period that is longer than the required statutory minimum, it would be repugnant not to deem the payment of a lesser sum commensurate with the statutory minimum a fundamental breach of contract as well as wrongful dismissal. This perspective is buttressed by Section 24 of the Act which stipulates that an employee may make a complaint to the tribunal on the ground that the employer unreasonably refused to give the notice required by Section 22 or that the notice given in purported compliance with Section 22 was inadequate.207 It is interesting to note that the Employment Tribunal is empowered to make a monetary award for any outstanding notice and a sum equal to two weeks’ wages. If it is to be deduced that the latter payment is intended to represent damages for wrongful dismissal, the cap on the quantum of two weeks is regrettable, as the employee faced no such restrictions at common law.208 Alternatively, the requirement to pay the equivalent of two weeks’ wages could be viewed as punitive and intended to serve as a deterrent.209 Section 24 is thus a double-edged sword rendered particularly dangerous by its inconsistent use of language – a complaint to the tribunal may be made in respect of ‘notice’, and not in respect of ‘payment in lieu of notice’. Consequently, if the employment contract made provision for a larger payment in lieu of notice that was not axled on the statutory minimum period of notice or calculated on the basis of salary owed to the employee for such period, it may be inferred that the tribunal would be impotent to award the employee the larger contractual sum.210 It remains to be seen how this new legislation will impact adjudicating the issues of wrongful and unfair dismissal in that jurisdiction. SUMMARY DISMISSAL The term ‘dismissal for cause’ is often used interchangeably with ‘summary dismissal’. The common law rule governing summary dismissal empowers an employer to dismiss an employee 204 Ibid., s 22(6). 205 Ibid., s 22(7). 206 According to Professor Cross: see Cross on Statutory Interpretation (Butterworths, 2nd Ed.) at 15. 207 Ibid., s 24(1). 208 Deakin, S. and Morris, G. (2012) in Labour Law (Hart Publishing, 6th Ed.) at 361 opine that the modern approach in the English common law suggests that courts are prepared to derogate from the rule of minimal compensation for wrongful dismissal where an employer has breached or is poised to breach the employment contract and it would be inequitable to allow him to benefit from so doing. See further discussion above at p. 150. 209 Section 24(2)(b) supports this interpretation as it mandates the employer to pay an additional sum equivalent to four weeks’ wages for every month that he fails to comply with the order of the Tribunal. 210 See the Anguillan decision of Smith v Air Bvi Ltd et al [1991] AI 1991 HC 2, where one month’s notice in lieu of a month’s salary was deemed adequate and therefore the employee was not wrongfully dismissed. Chapter 5: Dismissal at Common Law and Discharge 161 without notice where the employee has committed a repudiatory breach of contract such that it evinces a disregard for an essential term of the contract.211 The employer can also dismiss summarily when the employee displays behaviour which is ‘inconsistent with the continuation of confidence’ in the employment relationship.212 The most common examples of such behaviour occur where the employee has engaged in an act of gross misconduct. Lord BrowneWilkinson in the Privy Council decision of Henry v Mount Gay Distilleries Limited 213 stated that what was required was an assessment of whether the misconduct amounted to the employee’s repudiation of an essential term of his employment contract, and that this was a question of fact and degree to be determined in each case by the tribunal. He explained that, in order to conclude summary dismissal was justified, the issue to be resolved is: what constitutes a reasonable response by the employer to the misconduct under consideration?214 Several Commonwealth Caribbean jurisdictions have retained this rule and entrenched it as a key stabilizer in the legislative provisions governing termination of the employment relationship. The decision of the Supreme Court of Jamaica in Egerton Chang v National Housing Trust215 suggests that dismissal based on ‘a single act of negligence from an otherwise very competent employee’ would evince ‘unreasonableness’ on the part of the employer.216 It can also be deduced from the Jamaican Court of Appeal case of Joan McGlashan v Mr & Mrs Stewart Webster217 that summary dismissal provoked by persistent absenteeism and unpunctuality is reasonable.218 The court identified as a lacuna the failure of the Employment (Termination and Redundancy Payments) Act to elaborate on the circumstances when an employee may be dismissed without notice.219 Consequently, recourse must be had to the common law test of whether the employee’s conduct was consistent with the due and faithful discharge of the duties associated with the job.220 While there are several permutations of what ‘misconduct’ means, the Industrial Disputes Tribunal of Jamaica in Equipment Maintenance v NWU 221 opined that dismissal following the first instance of misconduct is not consistent with the Labour Relations Code, which stipulates that no worker should be dismissed for a first breach of discipline except in the case of ‘gross misconduct’. A similar sentiment was expressed in the Barbadian case of David Lashley and Partners Inc v Bailey Barbados222 that, where an employee is habitually neglectful of his contractual duties, there is sufficient cause for his dismissal, but not if there is only an isolated instance of neglect, unless attended by serious consequences.223 It is quite commonplace for an employer to list the kinds of conduct that will attract summary dismissal in a disciplinary code or staff 211 Laws v London Chronicle (Indicator) Newspapers [1959] 1 WLR 698 per Lord Evershed. 212 See Sinclair v Neighbour [1967] 2 QB 279 per Sachs LJ. 213 Privy Council Appeal No. 43 of 1998 (unreported) July 21, 1999. 214 In this case, the misconduct complained of was insubordination. This precedent was later applied in Bowne v T. Geddes Grant (Barbados) Limited Magisterial Appeal No. 5 of 2001 (unreported) delivered June 4, 2004 [BB 2004 CA 14]. 215 (1991) 28 JLR 494 (SC). 216 Ibid. In this case, the employee was accused of breach of fiduciary duty. It was held that, although the conduct of the employee was foolish and misguided, it was not sufficiently grave to warrant summary dismissal but merely a reprimand. 217 (1991) 28 JLR 58 (CA). 218 Ibid. The court held that the employee was lawfully dismissed after being absent from work for three consecutive days and late for a fourth without prior approval. 219 Section 3(5) – it simply restates the common law. 220 (1991) 28 JLR 58 (CA) at 60. 221 IDT No 5 of 2003 (unreported) delivered February 14, 2003 [JM 2003 IDT 5]. 222 (1992) 44 WIR 44. 223 Note Grants Hotel v Shepard Civil Appeal No. 13 of 2001 [BB 2002 CA 34], where the court held that a single act of dishonesty was inadequate cause for summary dismissal. See also Ramsay v St. James Hotels Services Limited Magisterial Appeal No.4 of 1999 (unreported) delivered June 26, 2002, where it was held that the appellant’s conduct (of using threatening indecent language to her supervisor) was an aberration on a solitary occasion and therefore her claim for damages for wrongful dismissal succeeded. 162 Commonwealth Caribbean Employment and Labour Law handbook.224 Threatening and violent behaviour was one of the offences listed for termination in the staff handbook in White v Victoria Mutual Building Society et al.225 The court held that an employee who had assaulted a co-worker was estopped from claiming wrongful dismissal in light of her misconduct. Further, it was confirmed that the common law does not require the employer to follow any particular procedure in summarily dismissing an employee; neither is there a general requirement at common law that the employee be given a chance to be heard in his own defence, nor that the rules of natural justice be complied with.226 Indeed, the court described the six weeks’ salary in lieu of notice gratuitously paid to the employee as lenient, as there was no obligation on the employer to do so when summary dismissal was sensibly justified. Serious acts of insubordination also qualify as ‘gross misconduct’.227 Thus, in Owen Reid v Diversey Lever Jamaica Limited228 the Supreme Court found that the employer was justified in summarily dismissing the plaintiff for using indecent language to a supervisor, especially in light of the fact that he was previously suspended as a disciplinary measure for a similar breach of company policy. The Eastern Caribbean Supreme Court came to a similar conclusion in Elphina Abraham v Sunny Caribbee Herbal and Spice Company Limited,229 a case from the British Virgin Islands. Here the employee’s conduct was found to be insulting and insubordinate to such a degree that it was incompatible with the continuance of the employment relationship, and no reasonable employer could be expected to tolerate or respond otherwise than by summary dismissal; further, there were a series of warning letters. Some attempt is made to rationalize the distinction between gross misconduct and misconduct simpliciter under the Antigua and Barbuda Labour Code. According to section C59: (1) An employer may terminate the employment of an employee where the employee has been guilty of misconduct in or in relation to his employment so serious that the employer cannot reasonably be expected to take any course other than termination. Such misconduct includes, but is not limited to, situations in which the employee has– (a) (b) (c) conducted himself in such manner as to clearly demonstrate that the employment relationship cannot reasonably be expected to continue; committed a criminal offence in the course of employment without the consent, express or implied, of the employer; or behaved immorally in the course of his duties. The proper construction to be given to the foregoing provision was elaborated by the Industrial Court of Antigua in Jarvis v Shoppers Pharmacy Limited.230 The Industrial Court underscored that whether the conduct in question is serious enough to warrant summary dismissal is always a question of fact in each case. In this case the employee held a full-time position as a pharmacist but also held the position of an immigration officer. The management of the pharmacy changed the employee’s schedule such that it conflicted with his other job. The employee did not turn up for work for one day and was summarily dismissed. It was held that the employee’s hours were arbitrarily altered by the employer and thus the employee was wrongfully dismissed 224 Examples include theft, fraud, deliberate falsification of records, unauthorized entry into computer records – see Denco Limited v Joinson [1992] All ER 462, [1991] IRLR 63 (EAT). 225 Suit No. HCV0155/2005 (unreported) delivered February 11, 2005 [JM 2005 SC 16]. 226 Cited and adopted from Hepple and O’Higgins Employment Law (above) at 19. 227 Pepper v Webb [1969] 2 All ER 216, [1969] 1 WLR 514. 228 Suit No. CLR 052 of 1998 (unreported) delivered December 3, 2001. 229 Claim No. BVIHCV2007/0122 (unreported) delivered April 29, 2010. 230 [2004] AG 2004 IC 2; Civil Appeal No. 21 of 2004 Court of Appeal OECS (unreported) delivered January 15, 2007, [2010] UKPC 5 Privy Council Appeal No 11 of 2009 (unreported) delivered December 14, 2009. Chapter 5: Dismissal at Common Law and Discharge 163 and entitled to compensation.231 The Industrial Court’s decision was overturned by the Court of Appeal, which thought that the initial contract was consensually terminated with the worker, and therefore there was no valid contract at the time of the purported dismissal. However, on further appeal to the Privy Council, the board held that the reasoning of the Court of Appeal was clearly wrong and thus the employer was indeed wrongly summarily dismissed and entitled to damages for the remainder of his fixed-term contract. The Protection of Employment Act232 in Dominica extends the guidelines laid down in the Antigua and Barbuda legislation. Section 6 states that: Where an employee– (a) (b) is guilty of misconduct in or in relation to his employment which, while not sufficiently serious to permit his employer to terminate his employment pursuant to section 5, is of such a nature that the employer cannot reasonably be expected to continue to employ the employee if such misconduct is repeated; or is no longer performing his duties in a satisfactory manner, the employer shall give the employee a written warning. Section 7 requires the employer to describe the misconduct or unsatisfactory performance and to outline the corresponding penalty that will ensue if there are subsequent infractions. Faced with the challenge of applying this provision in the case of E. Nassief & Company v Casimir233 the High Court of Dominica concluded that the burden of proving that a summary dismissal was justified was on the employer. Further, the court highlighted that the relevant question to be answered was whether the employee’s conduct justified dismissal. The employee in the instant case had not denied abusing and using insulting language to her supervisor, and she had received a prior warning letter in this regard. It was held that the summary dismissal was justified, as the conduct of the employee was improper and, as such, detrimental to the best interests of the employer.234 The case of Banking Insurance and General Workers Union v Pricemart Trinidad Limited 235 provides an interesting comparison. The fact that no investigations were made into the employee’s alleged misconduct before summoning her to a meeting, that she was not advised of the charges against her even when requested, and that subsequently her resignation was demanded, cumulatively evinced that the employer’s conduct was obviously preconceived and demonstrated an intention to summarily dismiss the employee prior to meeting with her. The court held that summary dismissal was a very strong measure236 and there were no exceptional 231 Arguably, this fact pattern does not demonstrate a case of misconduct on the part of the employee but rather a wrongful repudiation of the employment contract by the employer which the employee elected to treat as a termination of the contract. Note the discussion on the distinction between wrongful dismissal and wrongful repudiation by Elias, P. in ‘Unravelling the concept of dismissal’, accessible at http:// www2.warwick.ac.uk/fac/soc/law/staff/academic/neal/courses/lawlabrels/newdocs/eliaspt1.pdf. 232 Cap 89:02. 233 Civil Case No. 450 of 1991 (unreported) delivered March 19, 1997 [DM 1997 HC 2]. Contrast the case of Burton v Dominica Coconut Products Suit No.537A of 1999 (unreported) delivered June 20, 2000 [DM 2000 HC 7], where the High Court of Dominica agreed that, on the facts, the unsatisfactory performance complained of did not amount to serious misconduct within the meaning of s 5. 234 Diane Camacho v Camacho and Sons Ltd Civil Appeal No. 11 of 1994 (unreported) delivered December 12, 1996 [AG 1996 CA 11] Antigua and Barbuda applied. A similar approach was adopted in Hilton International (Barbados) Limited v Boyce (1996) 52 WIR 59, where the Court of Appeal of Barbados held that, although dismissal for a single act of disobedience was unusual, it was justifiable where the act interfered with and prejudiced the proper conduct of the employer’s business. 235 TD No. 498 of 2008 (unreported) delivered March 17, 2008 [TT 2008 IC 43]. 236 The court applied the principle – laid down in the Privy Council case of Jupiter General Insurance Company v Shroff [1937] 3 All ER 67 – that summary dismissal was a strong measure, to be justified only in the most exceptional circumstances. 164 Commonwealth Caribbean Employment and Labour Law circumstances justifying the employer’s actions in this case which were ‘reprehensible and in breach of the rules of natural justice and quite contrary to all known tenets of what can be regarded as good industrial relations practice’.237 Consequently, the court expressed its condemnation of the employer’s behaviour by making an award of exemplary damages.238 Conceivably, a more objective approach is necessary where the fact of misconduct is established but the question of the employee’s guilt remains unanswered. It was stated in the Barbadian case of Alleyne et al. v Marriotts (Barbados) Limited 239 that, in order to justify the summary dismissal of an employee, his dishonesty must be proved unequivocally: reasonable suspicion is not proof. The court assessed the evidence of the case, finding that there were procedural breaches and negligence on the part of the employees. However, in the particular circumstances, especially in light of the long years of service and previous unblemished record of the employees, their immediate dismissal was unwarranted. Conversely, where the employee’s misconduct and guilt are established, the employer may condone the misconduct of the employee; that is, the employer by his act or omission conveys his acquiescence of the employee’s misconduct. If, for example, the employer permits the employee to return to work,240 he will be deemed to have condoned the employee’s misconduct and will be estopped from exercising his right of summary dismissal.241 Jamaica’s Employment (Termination and Redundancy Payments) Act also contemplates that the employer will be estopped from relying on the worker’s misconduct to dismiss if he fails to do so within four weeks of discovering such conduct.242 Condonation should not be assumed, however, where the employer postpones termination for a valid reason. This was illustrated in the case in Herbert v Amory et al,243 where the employee was summarily dismissed for alleged dishonest misconduct but also received a ‘payment in lieu of notice’ from the employer. The High Court of St. Kitts and Nevis held that the payment was an act of generosity and should not be treated as evidence of condonation. Further, the court found that this action of the employer did not preclude him from relying on his right to summarily dismiss the employee for serious misconduct in accordance with Sections 2 and 5(1) (b) of the Protection of Employment Act 1986. In Straughn v Lodge School (Board of Management)244 a similar decision was reached by the Barbadian Court of Appeal. The court held that, whatever the reason for the employer making a payment in lieu of notice which was not required by the contract, this payment could not be viewed as condonation of the employee’s misconduct or a waiver of the employer’s right to dismiss. ILO’s Termination of Employment Recommendations245 decidedly outline the most comprehensive approach to summary dismissal for serious misconduct. The dispensation of notice or payment in lieu of notice (as established at common law) is retained; where applicable, the severance allowance and other separation benefits may also be withheld. It is emphasized that summary dismissal should be a last resort and should only occur ‘in cases where the employer cannot in good faith be expected to take any other course’.246 Condonation is 237 Ibid. at 25; see also Banking, Insurance and General Workers Union v Hindu Credit Union Co-operative Society Limited TD No. 2 of 2001, which was applied in relation to the meaning of ‘good industrial relations practice’. 238 The guidelines and principles set out in Torres v Point Lisas Industrial Port Development Corporation Ltd (2007) 74 WIR 431 were applied. 239 Magistrates Appeals No. 13-16 of 1996 (unreported) delivered May 13, 1998 [BB 1998 CA 7]. 240 Other examples of condonation include failure to warn an employee within a reasonable time of the unacceptable behaviour or a wage or salary increase with knowledge of the conduct complained of. See Mitran v Guarantee R V Centre Inc [1999] ABQB 276 (Canada). 241 See Arawak Cement Co Ltd v London (1996) 52 WIR 54. 242 ETRPA Section 3(5)(a). 243 Suit No. SKBHCV 0178 of 2002 (unreported) delivered January 31, 2005 [KN 2005 HC 4]. 244 (1997) 55 WIR 76. 245 1963 (No. 119) Article 11 and 1982 (No. 166) Articles 7–13. 246 Ibid., Article 11(2). Chapter 5: Dismissal at Common Law and Discharge 165 presumed where the employer fails to exercise his right to dismiss the employee for misconduct within a reasonable time after he gains knowledge of the misconduct. As a corollary, an employee will be deemed to have waived his right of appeal against summary dismissal if he fails to appeal within a reasonable time after learning of the dismissal. While it is recommended that definitional guidelines are given to the terms ‘serious misconduct’ and ‘reasonable time’, it is clear that the discretion to elaborate these terms should repose with individual member States. However, some indication of what these terms should encompass may be gleaned from the recommendation that ‘… the employment of the worker should not be terminated for misconduct of a kind that under national law or practice would justify termination only if repeated on one or more occasions, unless the employer has given the worker appropriate written warning’.247 Unsatisfactory performance is singled out as an unacceptable reason for termination, unless the employer has given the employee adequate instruction and warning, and the employee fails after a reasonable time for improvement to perform his duties satisfactorily. Arguably, preserving the employer’s prerogative was not an anomaly, but a deliberate manoeuvre to afford some flexibility in the procedure prior to (or at the time of) termination to counterbalance the new encumbrances on the employer’s right of summary dismissal. In any event, the rules of natural justice dictate that an employer shall be mindful of such procedures. Although failure to observe them may not be wrongful dismissal, the employer could nevertheless find himself facing a claim of unfair dismissal. The St. Lucia Labour Code embodies the spirit of harmonious industrial relations that the ILO Recommendations strive to evoke. The principle that the employment contract shall not be terminated by the employer unless there is a valid reason is enshrined from the outset. A clear sense of what constitutes a valid reason for dismissal can be gleaned from Section 129: termination must be ‘connected to the capacity, performance or conduct of the employee or for reasons of redundancy and, unless in accordance with the principles and procedures under this division’. Not only do Sections 133–144 encompass the best practices in relation to summary dismissal listed in the Recommendations; they go beyond them. ‘Serious misconduct’ is defined in detail, ‘reasonable time’ is set at 12 months, condonation is explained, warning letters are required, dismissal for unsatisfactory performance is highlighted, and an option to suspend or warn in lieu of dismissal is introduced. It is important to observe that serious misconduct is restricted to conduct which is directly related to the employment relationship or has a detrimental effect on the business of the employer or the work relationship,248 and it includes (but is not limited to): (a) (b) (c) (d) (e) (f) wilful disobedience of lawful orders given by the employer; repeated substantial neglect of duties; repeated absence from work without the permission of the employer or without reasonable excuse; refusing to follow health and safety measures instituted at work thereby endangering the health and safety of employees or members of the public; theft or wilful damage of property of the employer or another employee at the work place; or conduct inconsistent with the fulfillment of the expressed or implied terms of the employee’s contract of employment.249 247 Ibid., Article 7. 248 Section 133(3). 249 Section 133(2). 166 Commonwealth Caribbean Employment and Labour Law CONSTRUCTIVE DISMISSAL In a contract of employment there is an implied term that the employer will not, without reasonable and proper cause, conduct himself in a manner calculated as likely to destroy or seriously damage the relationship of confidence and trust between employer and employee … the implied term of trust and respect in the contract of employment has been held to have overriding effect, that is to say that, even where the employer has express power to act in a particular way under the terms of the contract, he must exercise that power in the light of his overall duty of trust and respect, with the result that, if he does not do so, the employee may be contractually entitled to leave and claim constructive dismissal, in spite of the employer’s claim that he was merely exercising his contractual rights.250 This succinct explanation elaborated by Halsbury’s Laws of England251 buttresses the view that constructive dismissal may be considered a species of wrongful dismissal, insofar as it entails a repudiatory breach by the employer of a fundamental express term or an essential common law implied term of the contract of employment. Constructive dismissal occurs where the employee terminates the contract of employment, with or without notice, as a direct result of the conduct of the employer which ‘objectively constitutes a fundamental change in the employment or a unilateral change of a significant nature, evincing an intention on the part of the employer not to continue the employment contract upon its previous terms’,252 or the unreasonableness of the behaviour is such that the employee could not be expected to continue in the employment. This principle was first fully enunciated in the seminal case of Western Excavating (ECC) v Sharp253 which introduced the ‘contractual test’. According to Lord Denning MR: If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed …254 In France v Westminster City Council,255 Wall J restated the principles underlying the concept of constructive dismissal in the following terms: Firstly there must be a breach of contract by the employer which can either be actual or anticipated. Examples of what may be considered as an actionable breach include unilateral changes in the terms of the contract,256 bullying,257 harassment,258 verbal abuse259 and other 250 Note Halsbury’s Laws of England (4th Ed.) Volume 39 at para 44. 251 Ibid. 252 See Courts (Barbados) Limited v Innis BB 2005 CA 24. 253 [1978] IRLR 27 (CA) - affirming that constructive dismissal was a contractual issue, the UK Court of Appeal held that the test to establish constructive dismissal is whether the employer’s actions or conduct amounted to a repudiatory breach or a fundamental breach of the contract of employment. Further, it held that this breach must be so significant and fundamental that it effected a repudiation of the contract of employment at common law or that, by its conduct, the employer demonstrated that it no longer wished to continue the employment relationship with that employee. 254 Ibid. at [29]. 255 Unreported EAT 0214/02. 256 Cantor Fitzgerald International v Callaghan [1999] ICR 639 – cut in salary; Wadham Stringer Vehicles Ltd v Brown [1983] IRLR 46 – delayed payment of wages; Greenaway Harrison Ltd v Wiles [1994] IRLR 380 – dramatic change in working hours; Barbados Farms Ltd et al v Isilma Scantlebury Civil Appeal No. 4 of 2006 (unreported) delivered April 25, 2007, where the Court of Appeal held that the actions of the employer to pay the worker for vacation leave and not enquire as to her absences, coupled with the fact that he replaced her with another employee to carry out her functions (which meant that, if she continued to work, it would have to be at a lower post which would have in effect been a demotion), amounted to constructive dismissal. 257 Goold v McConnell [1995] IRLR 516. 258 Western Excavating (ECC) v Sharp [1978] IRLR 27 (CA). 259 Isle of Wight Tourist Board v Coombes [1976] IRLR 413. Chapter 5: Dismissal at Common Law and Discharge 167 such behaviour which cut against the grain of good industrial relations or actions which undermine the relationship of trust and confidence.260 Secondly the breach must be sufficiently important to justify resignation in response to the impugned action of the employer. Thus in the case of Courtaulds Northern Textiles Ltd v Andrew261 the court found that constructive dismissal was made out when the employer accused the employee of incompetence in full view and hearing of the affected worker’s subordinates. In view of the fact that Andrew was the supervisor of some of these workers it was thought that his credibility would be greatly affected by the employer’s action and justified a decision to leave the employment and claim constructive dismissal. Thirdly the action of the employer may be the last in a series of relatively minor incidents which also justify the employee’s decision to leave the employment; this is sometimes termed as the ‘last straw principle’.262 Fourthly the employee must leave the job in direct response to the breach and not some other unconnected reason.263 Finally the employee must act quickly in leaving the job and making a claim for constructive dismissal.264 In Banking, Insurance and General Workers Union v BP Trinidad and Tobago LLC, His Honour Mr G Baker simplified it thus: ‘The law regards the employee’s termination of the employment in such circumstances as an actual dismissal by the employer, there being no factual dismissal by the employer, orally or in writing’.265 The obvious question is: ‘In determining the issue of constructive dismissal, should an objective standard be applied in order to assess whether the action of the employer was reasonable?’ The answer, it seems, hinges on whether the employer had reasonable cause so to act! The Barbadian case of Bryan v Spence266 is an excellent example of the burden placed on the court to sift through muddied case facts in order to discover the grit of constructive dismissal. Whether the employer’s statement – that the employee indicated she was not returning to work – should be believed over the employee’s own statement – that she was told by the employer not to return to work – is wholly dependent on the judge’s appreciation of the evidence presented before her. The case concerned an allegation of theft involving a domestic worker. The magistrate had found the employee to be a credible witness, so there was very little manoeuvring that the Court of Appeal could make in response to the appellant’s claim that the employee’s resignation was voluntary. The recent Caribbean Court of Justice decision of Sandy Lane Hotel Company Ltd v Brigitte Laurayne,267 on appeal from the Court of Appeal of Barbados, underscores how fact-sensitive this area of law is. In this regard, the court affirmed that ‘actions for constructive dismissal must be founded on conduct viewed objectively by the employer and not the subjective perception of that conduct by the employee’.268 In this case, the employee was a senior director at the hotel who reported to the general manager. In an effort to address the employee’s complaints of stress, and her inability to manage the responsibility of graduate study (paid for by the hotel) and extended duties on the job, a proposal was made to hire a junior director to assist the 260 Wood v WM Car Services (Peterborough) Ltd [1981] ICR 666. 261 [1979] IRLR 84 (EAT); see also Hilton International Hotels (UK) Ltd v Protopapa [1990] IRLR 316. 262 Omilaju v London Borough Waltham Forest [2005] ICR 481. 263 See Jones v F Sirl and Sons (Furnishing) Limited [1997] IRLR 493; here the employee waited until he got a new job to leave the employment. It was held that this case was not amenable to a finding of constructive dismissal. 264 Jeffery v Lawrence [1977] IRLR 466 - claim for constructive dismissal came three months after the alleged breach of contract by the employer. 265 TD No. 138 of 2005 (unreported) delivered July 25, 2007 [TT 2007 IC 94] at para 21. 266 Magisterial Appeal No. 16 of 1997 (unreported) delivered June 11, 1998 [BB 1998 CA 10]. 267 (2013) 81 WIR 75. 268 This statement was originally made in Courts (Barbados) Limited v Mary Inniss Magisterial Appeal No. 7 of 2002 (unreported) delivered November 2005. In this case the employee’s demotion was unambiguous as she lost her job title, her personal office, her supervisory role and was sometimes reduced to taking orders and performing filing duties. 168 Commonwealth Caribbean Employment and Labour Law employee with her functions. Disgruntled, the employee refused to assist with the recruitment of a junior director and declined offers to change her current job position to one less strenuous. She left the hotel and subsequently forwarded a correspondence to the general manager that she would not resume duties, as she considered that she had been constructively dismissed. The court viewed the employer’s actions as a whole and adjudged them to be reasonable, as the employee’s position, title, responsibilities, salary and benefits remained unaltered.269 It was held that there was no breach, and certainly no fundamental breach justifying constructive dismissal such that the employee could not be expected to put up with it. The evidence-based approach taken in Barbados is distinguishable from that taken in Trinidad and Tobago, where seemingly the emphasis is less on the reasonableness of the employer’s cumulative actions and more on the reasonableness of the character and gravity of the employer’s behaviour. In Banking, Insurance and General Workers Union v BP Trinidad and Tobago LLC270 the Industrial Court had to consider whether an employee who had tendered his resignation on the grounds that his employer had forced him to relocate to the United States – where he was assigned inferior work, relieved of his expatriate allowances and his employment terminated prematurely – amounted to constructive dismissal. The Industrial Court relied on section 10(5) of the Industrial Relations Act, which provides that ‘… a worker who is dismissed in circumstances which are harsh and oppressive or not in accordance with the principles of good industrial relations practice may be re-employed or reinstated with or without damages and compensation or be awarded damages and compensation in lieu of re-employment or reinstatement’. While this provision makes no express mention of constructive dismissal, it naturally lends itself to an interpretation that Parliament intended it to serve as a solution in such circumstances.271 Indeed, the Industrial Court enumerated two criteria that had to be met to afford the employee a remedy under this provision. Firstly, the court had to be satisfied that there was a dismissal. Secondly, the evidence had to illustrate that the dismissal was harsh and oppressive, or not in accordance with the principles of good industrial relations practice. The employee’s assertion was that constructive dismissal should be implied from the employer’s conduct. Lamenting that over 20 years of service had been lost, the court resolved that ‘the overriding principle of liability is that the law holds persons accountable for the consequence of their actions’.272 It was held that there was no evidence that the actions of the employer amounted to a fundamental breach of the employment contract, and the employee pre-empted his termination by not waiting for the employer to dismiss him; accordingly, there was no constructive dismissal. Statutory definition of constructive dismissal Rather than grapple with identifying special circumstances (such as demotions and reductions in salary that do, or do not, amount to a serious repudiatory breach by the employer of the employment contract), some Commonwealth Caribbean jurisdictions have opted to introduce 269 Contrast the case of Harley v Blue Waters Beach Hotel (Antigua) Reference No. 17 of 1995 (unreported) delivered November 26, 1999 [AG 1999 IC 5], where the employer had purported to transfer the employee, a chamber maid, to the laundry department, then to the gardening department, and again to cleaning the lobby. Despite allegations of theft and the subsequent detention of the employee by the police, the court held that the changes of the terms of the contract of employment by the employer were so fundamental that they rendered the employee incapable of continuing in the job she was originally hired to do. 270 See p. 167 above. 271 Similarly, s 5(5)(c) of Jamaica’s Employment (Termination and Redundancy Payments) Act 1974 provides that ‘an employee shall be taken to be dismissed by his employer (for the purposes of redundancy) if he is compelled by reason of the employer’s conduct, to terminate that contract without notice’. The term ‘constructive dismissal’ is not used, but it is implied, although there is no requirement that the employer’s conduct be ‘harsh and oppressive’. 272 Ibid., para 39. Chapter 5: Dismissal at Common Law and Discharge 169 legislative reform delineating the scope of constructive dismissal.273 Section 132 of the St. Lucia Labour Code provides that: (1) (2) An employee is entitled to terminate the contract of employment without notice or with less notice than that to which the employer is entitled by any statutory provision or contractual term on grounds of constructive dismissal where the employer’s conduct has made it unreasonable to expect the employee to continue the employment relationship. Where the contract of employment is terminated by the employee pursuant to subsection (1), the employee shall be deemed to have been unfairly dismissed by the employer and shall be entitled to compensation in accordance with this Code. The use of the word ‘unreasonable’ does not of necessity imply that this provision will be interpreted widely. The deeming of the employee’s action as being akin to unfair dismissal is an attempt by the legislature to provide greater protection than that available at common law. The fact of a constructive dismissal does not in and of itself make such a dismissal unfair/ unjustifiable, providing compensation or making a redundancy payment applicable. It merely indicates that there is in fact a dismissal, and the relevant statutory provisions relating to those other legal constructs shall thereafter apply.274 RESIGNATION Where the termination of employment is voluntarily pursued at the behest of the employee, this is a resignation. The implication for the employee is that he will be left without access to a claim of unfair dismissal, redundancy or wrongful dismissal. The exception in this regard is the case of constructive dismissal, as previously discussed. Where the employee brings the employment contract to an end in this way, he is entitled to remuneration for the period worked up to the date of his departure, and any outstanding vacation pay. As discussed earlier,275 under normal circumstances employees are required to give notice to employers if they propose to terminate the contract. When the employee gives the employer the requisite notice and the employer does not wish the employee to work out the notice period, the employer may make a counter-offer to pay the employee wages in lieu of notice. However, this does not change the situation that de facto there was a resignation at the initiative of the employee. The resignation must be completely voluntary; thus, if the employee is given the option of being dismissed or resigning and he decides to take the latter route, he will be treated as being dismissed276 unless the action was for some other reason.277 To be effective, the resignation must also have a clear effective date, or else it simply evinces an intention to undertake the act. The CARICOM Model Harmonisation Act Regarding Termination of Employment recommends that an employee should give two weeks’ notice to terminate the employment contract,278 but it may be surmised that, under this regime, failure to give the required notice will not be prejudicial to the employee.279 Although this is a CARICOM Model Harmonisation Act 273 See St. Kitts and Nevis Protection of Employment Act, s 8(3), which provides that an employee may terminate services without notice if the conduct of his employer is of such a nature that the employee cannot reasonably be expected to continue his employment; the burden of proof in this regard is on the employer (s 8(4)). 274 See ETRPA Jamaica Section 5(5)(c) and Lewis v Motor World Garages Ltd [1986] ICR 157. 275 See discussion at p. 142. 276 See Robertson v Securicor Transport Limited [1972] IRLR 70. 277 See Sheffield v Oxford Controls [1979] IRLR 133, where the decision was based on the fact that relations between the parties deteriorated and a negotiated settlement was reached contingent on the resignation. 278 See s 26(6). 279 See s 27(2). 170 Commonwealth Caribbean Employment and Labour Law ‘plus’ for the employee, employers are conversely disadvantaged, as they will not be entitled to demand compensation from the ex-employee280 if it takes an inordinately long time to find a replacement, to the financial detriment of their business. Further, if it is discovered that there was no reasonable excuse for the resignation, the employer cannot claim damages for wrongful resignation or a right to demand the worker to resume his duties until a suitable replacement can be identified – no such remedy exists. As such, legislative provisions which provide some level of reciprocity in the giving of notice should be retained, in the interest of good industrial relations. MUTUAL CONSENT OF THE PARTIES If both parties to the employment contract genuinely concur, it may be terminated by mutual agreement.281 Once this decision is made and concluded, there is no dismissal for the purposes of wrongful or unfair dismissal claims; the contract simply comes to a natural end. The main challenge with this type of termination relates to the fact that what may on the surface be paraded as a ‘mutual consent’ could very well be coloured by other considerations which remove the voluntary nature of the agreement. Therefore, in cases where consideration or some other benefit passes between the parties (such as an enhanced redundancy or pension282 package), the courts have found that there was more likely to be mutual consent to terminate the contract. However, if there was any pressure to resign (for example, in the face of disciplinary action283 or imprisonment),284 or if the employee is induced to resign for the prospect of other employment which was not forthcoming,285 the court may find there was in fact a dismissal. The important point to note here is that ‘… the court should not find an agreement to terminate employment unless it is proved that the employee really did agree with full knowledge of the implications it had for him’.286 Thus, in the Belizean case of Juan v Belize Livestock Association287 the effect of a written term that the employment contract could be terminated by mutual consent was questioned when the employer argued that, having unilaterally made the decision to dismiss, the employee’s ‘acceptance’ made the term operative. The court, in ruling to the contrary, stated that ‘… even if he accepted that he was being terminated that did not make it a termination by mutual consent as relied upon by the defendant’.288 Hence the active participation of both parties in triggering the use of such clauses is required. FRUSTRATION OF CONTRACT289 In such cases, the issue that arises for consideration is whether further performance of obligations by the employee is either impossible or radically different from that undertaken by the 280 See s 157(1): ‘An employer shall not impose a fine or other monetary penalty on an employee, except in cases where a requirement of restitution is appropriate, nor impose any other disciplinary action except in accordance with this Code’. 281 SW Strange Ltd v Mann [1965] 1 All ER 1069, [1965] 1 WLR 629. 282 Birch v University of Liverpool [1985] ICR 470, [1985] IRLR 165, CA; Scott v Coalite Fuels and Chemicals Ltd [1988] ICR 355, [1988] IRLR 13. 283 Scott v Formica Ltd [1975] IRLR 104; although, if there is a genuine agreement in this regard, it could be considered as mutual agreement – see Logan Salton v Durham County Council [1989] IRLR 99, EAT. 284 Torres v Point Lisas Industrial Port Development Corporation Ltd (2007) 74 WIR 431. 285 Caledonian Mining Company v Bassett and Steel [1987] IRLR 165. 286 Donaldson J in McAlwane v Boughton Estates Ltd [1973] 2 All ER 299, [1973] ICR 470. 287 (2000) 2 Blz LR 27. 288 Ibid. 289 See Kodilinye, G. and Kodilinye, M. (2014) Commonwealth Caribbean Contract Law (1st Ed.), pp. 243–246 for the juridical basis of frustration doctrine. Chapter 5: Dismissal at Common Law and Discharge 171 employee and accepted by the employer under the agreed terms of the employment contract.290 The frustrating event must also not be attributable to the fault of either party.291 Frustration presents a unique opportunity for an employer to end the employment contract without incurring any liability for wrongful or unfair dismissal, since it simply concludes by operation of law.292 The important point to note in such cases is that the frustrating event must strike at the root of the contract so that it can no longer be performed. The imprisonment293 or illnesses294 of an employee are examples of circumstances that can engender frustration of the employment contract. It should be noted, however, that the doctrine of frustration is limited to exceptional circumstances, and courts are generally not minded to so find in employment matters, as it tends to do harm to industrial relations, especially when being used to flout statutory employment protection afforded to workers.295 Imprisonment In Wood v Caribbean Label Crafts Ltd296 the doctrine was argued where the employee was absent from work as a result of an incarceration. The employee requested his sister to advise his employers of his arrest, and she failed to do so. The employer subsequently learnt of the employee’s arrest in a news report. Nonetheless, the employer summarily dismissed the employee, after five days’ absence, for failure to report to work. On appeal, it was held that, in a proper case (where there was a conviction),297 imprisonment could frustrate a contract of employment. However, in the instant case the employee had been neither convicted nor sentenced, his absence from work was not prolonged, and the employer (who had tacit knowledge of the employee’s situation) acted hastily in taking the decision to end the employment contract. Sickness In cases where sickness is the alleged frustrating event, the issue can become difficult to distil.298 The modern approach in this regard was formulated by Phillips J in Williams v Watson Luxury Coaches Limited;299 factors to be considered are: the length of the employment prior to the illness; the length of the foreseeable employment; the nature of the job; the terms of employment; the nature, length and effect of the illness and the prospects of recovery; the need for a replacement; the conduct of the employer; whether the employee had been paid wages or sick pay 290 First enunciated in an employment law context in Poussard v Spiers (1876) 1 QBD 410; see also Lord Radcliffe in Davis Contractors Limited v Fareham UDC [1956] AC 696 at 728. 291 See Lord Brandon of Oakbrook in Paal Wilson and Co AS v Partenreederei Hannah Blumenthal [1983] 1 All ER 34. 292 Note that, in countries where there is legislation – such as Jamaica’s Law Reform (Frustrated Contracts) Act 1968 and Barbados’ Frustrated Contracts Act – the employee would be entitled to payment of any wages due up to the date of the frustrating event. 293 See also Ballen v The Kingston and St. Andrew Corporation (1959) 1 WIR 513, where the court at first instance ruled that the employment contract was frustrated when the employee was convicted and imprisoned for stealing from the employer. 294 See TD 170 of 2004 National Union of Government and Federated Workers v Deep South Engineering and Consultancy Services (unreported) delivered November 8, 2007 – the employee’s illness caused him to be off work for more than two and a half months on a short-term contract where the job function of health and safety officer was pivotal to the execution of the project; thus the contract was frustrated. 295 See Williams v Watson Luxury Coaches Limited [1990] IRLR 164; see also Notcutt v Universal Equipment Co Ltd [1986] ICR 414, [1986] IRLR 218. 296 Magisterial Appeal No. 11 of 2001 (unreported) delivered July 16, 2003 [BB 2003 CA 10]. 297 See Shepard FC and Co v Jerrom [1986] 3 WLR 801. 298 See Marshall v Harland & Wolff and Another [1972] 2 All ER 715 at 718, where Sir John Donaldson gave guidance on the factors to be considered in making a determination. 299 [1990] IRLR 164; see also the earlier case of Egg Stores (Stamford Hill) v Leibovici [1976] IRLR 376, [1977] ICR 260. 172 Commonwealth Caribbean Employment and Labour Law during the period; and whether a reasonable employer would have waited longer to see if the worker could return to work. The effect of a finding of frustration will have negative consequences for the employee, who would normally be unable to claim termination benefits since there was in law no dismissal. Thus, in White v Heywoods Hotel300 the contract of an employee who suffered from persistent migraine headaches and missed 38 days of work in a calendar year was held to be frustrated. This was because the employee’s incapacity due to her illness was of such a nature that it changed the circumstances so fundamentally as to strike at the root of the employment relationship. Similarly, in George v Barnes Funeral Home301 the Antiguan Industrial Court found that the employment contract of a 78-year-old employee, who suffered a stroke and was unable to continue the heavy lifting required as an undertaker’s assistant, was frustrated. In both cases, it was held that under common law no benefits accrued to the employees at the end of the contract.302 These cases can be contrasted with Thomas v Peter Island Hotel Inc303 and Oilfield Workers’ Trade Union v Nestle Caribbean Incorporated et al,304 where the employment contracts of the aggrieved workers were held to be subsisting. In the former case, the British Virgin Islands High Court, having reviewed the facts in light of the guidance provided in Williams v Watson, concluded that the worker’s periods of absence due to illness was not for so long as to make the work impossible. In fact, Moore J opined that ‘at most the absences were no more than a temporary inconvenience which necessitated the implementation of arrangements which were put in place beforehand’. Further, he found that the conduct of the parties led to no other conclusion than that the contract was not frustrated.305 In the latter case, the employee (a forklift truck driver) sustained an injury to his eye which led to him being off work for five months and he was thereafter unable to competently carry out his duties. Although strenuous argument was made before the Trinidadian Industrial Court that the contract was frustrated, it was held that the provisions of the Collective Labour Agreement which anticipated incapacity due to ill-health should be invoked, to allow the employer to retire the worker, and hence there was no frustration. DEATH OF EMPLOYER OR EMPLOYEE The death of the employer306 or the employee307 constitutes a valid reason for termination of the employment contract at common law. Statutory provisions in some Commonwealth Caribbean countries have, to some extent, streamlined the position. Thus, for example, in Belize308 it is made clear that the death of either party terminates the employment contract where it occurs before the expiration of the term for which it is made. The death of the employer in some instances is considered a dismissal for the purposes of redundancy payments309 which hold some prospect of protection and benefits for affected workers. When 300 Magisterial Appeal No. 18 of 1994 (unreported) delivered June 14, 1996 [BB 1996 CA 20]. 301 Antigua Industrial Court Reference No. 7 of 1992 (unreported) delivered March 12, 1993 [AG 1992 IC 8]. 302 However, in the Barnes case the court relied on s 10(3) of the Antigua Labour Code to award the worker $7,500.00 ‘acting in accordance with equity, good conscience and the substantial merits of the case as otherwise the employee would after 15 years of service be left high and dry without a specific statutory benefit’. 303 British Virgin Islands High Court Suit No. 140 of 1994 (unreported) delivered 1998 [VG 1998 HC 1]. 304 TD No. 57 of 2002 (unreported) delivered March 22, 2007 [TT 2007 IC 29]; see also TD 367 of 2010 Transport and Industrial Workers’ Union v Century Eslon Limited (unreported) delivered October 22, 2012. 305 See similar reasoning in Barbados Children’s Wear v Boyce Civil Appeal No 74 of 1991 (unreported) delivered September 1, 1992 [BB 1992 CA 38]. 306 Farrow v Wilson (1869) LR 4 CP 744. 307 Graves v Cohen (1929) 46 TLR 121. 308 Labour Act, s 57(1)(b). 309 See discussion at p. 206. Chapter 5: Dismissal at Common Law and Discharge 173 a worker dies, the effect is usually only of practical significance to the employer if the worker is a pivotal part of the organization. The employee’s estate may, however, be able to continue a claim for employment benefits or pursue the same within a specified timeframe following the death.310 Under section 25 of the CARICOM Model Harmonisation Act Regarding Termination of Employment, ‘… when the employer’s personal or legal position formed the basis of the contract of employment, the death of the employer shall cause the contract of employment to terminate one month from the date of the employer’s death, unless the employment is otherwise terminated (in accordance with the Act)’. The St. Lucia Labour Code has adopted and extended this formulation, adding that the payment of wages of the employees of the deceased employer shall take priority over all other debts.311 310 For example, under Jamaica’s Employment (Termination and Redundancy Payments) Act, s 11. 311 See ss 151 and 152. CHAPTER 6 STATUTORY DISMISSALS – REDUNDANCY, SEVERANCE AND UNFAIR DISMISSAL OVERVIEW It is true to say that the loss of a job can be one of the most devastating events to occur in the life of any worker.1 The fact of the dismissal is bad enough, but the reason behind it, and manner in which the dismissal is manifested, can be just as overwhelming as the act itself, if not more so. Indeed, as aptly stated by Downes, Mamingi and Antoine, ‘[T]he most contentious area of labour law in the region relates to the termination of workers and calculation of the associated firing costs to the employer’.2 As discussed in Chapter 5, a distinct regime exists to regulate dismissals within the purview of the common law, albeit that limited statutory interventions have encroached thereon with the express intention of implementing certain minimum standards. Suffice it to say that these common law principles have proved inadequate to address the concerns of especially the longterm worker who is terminated at the behest of the employer in circumstances where they are neither at fault nor engaged in activities which would legally allow the employer to dismiss. These and other reasons, no doubt encouraged and guided by ILO Conventions and Recommendations, caused many States to introduce specific statutory regimens to institute a framework for the protection of workers in such instances. Two of the most widely recognised mechanisms used in this regard are (1) redundancy or severance packages and (2) unfair dismissal procedures and compensation. This chapter examines the international backdrop to these concepts and undertakes a full review of their application within the Commonwealth Caribbean context. The implication for the worker of the interaction of the two precepts in light of the legal framework will also be considered, infused with references to the recommended statutory dismissal systems as contemplated by the CARICOM Draft Model Laws on Termination. INTERNATIONAL CONSIDERATIONS The earliest contemplation of the subject of termination at the ILO level occurred in 1963, when Recommendation 119 (Termination of Employment) was adopted by the ILC. It outlines the ‘… fundamental notion that managerial power should be exercised so as to be compatible with notions of formal rationality’.3 The bedrock principle of the Recommendation, which has remained true in the successor Convention 158 (Termination of Employment) and its accompanying Recommendation 1664 is the premise that ‘termination of employment should not take place unless there is a valid reason for such a termination connected with the 1 2 3 4 See Brodie, D. (1998) ‘Specific Performance and Employment Contracts’ 27 ILJ 37, where he vividly describes the chagrin of many workers when dismissed: ‘... in reality, people build much of their lives around their jobs. Their income and prospects for the future are inevitably founded in the expectation that their jobs will continue. For workers in many situations, dismissal is a disaster.’ Downes, A. S., Mamingi, N. and Antoine, R.-M. B. (2004) ‘Labour Market Regulation and Employment in the Caribbean’ in Heckman, J. and Pages, C. (Eds) Law and Employment Lessons from Latin America and the Caribbean (University of Chicago Press), 517–552 at 522. Deakin, S. and Morris, G. (2012) Labour Law (6th Ed., Hart Publishing) p. 420. Both adopted in 1982. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 175 capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service’.5 This grundnorm now forms the basis of most legislation which seeks to protect workers from the effect of unjust dismissal and arguably provides a rational basis for the exercise of managerial prerogative. The Convention is concerned with dismissals which are initiated by the employer and not with employee-instigated action, except in the case of constructive dismissal which, though effected by an employee’s positive act, is triggered by the employer’s previous misdeeds.6 The Convention goes on to protect workers from unfair dismissal on the following grounds: union membership or involvement in union activities outside working hours or during normal work hours (if such activity was permitted by the employer); seeking office as or being a worker representative; filing of a complaint against an employer or being involved in proceedings against an employer for alleged violation of the law. Importantly, national extraction or social origin, race, colour, sex, marital status, family responsibilities, religion, political opinion, pregnancy or being absent from work during maternity leave do not constitute valid reasons for dismissal.7 The Convention also prescribes that temporary absences from work attributable to illness or injury should not be construed as valid reasons for dismissals, but specifically makes provisions for collective agreements, arbitration awards, court decisions and national laws and regulations to give effect to these principles.8 The instrument declares that, if employers are contemplating terminating a worker because of his conduct or performance, the affected worker(s) must be afforded an opportunity to defend themselves against the allegations, unless the employer cannot be reasonably expected to do so.9 Convention 158 indicates that workers who believe they are unjustifiably terminated are entitled to make an appeal to an impartial body such as a court, tribunal or arbitrator.10 However, they may be deemed to have waived this right if they fail to exercise it within a reasonable time.11 In determining an appeal, the appropriate body should be empowered to interrogate the reasons for the termination, along with any other relevant circumstances, in order to decide on the justifiability of the termination.12 In this regard the burden of proof should be placed on the employer, and the adjudicatory body should be able to reach their conclusions by reference to the surrounding circumstances of the case put forward by the parties, as well as any nationally established procedures and practices.13 Where the dismissal is occasioned by an operational (economic) requirement, while the adjudicatory body should be empowered to decide the veracity of the averred reason, the sufficiency of the reasons can be determined by national laws and practice.14 If unjustified dismissal is found, the preferred method of reparation according to the Convention is a declaration of invalidity of the decision or reinstatement of the worker. However, if these are not practical measures, the adjudicatory body should be empowered to award adequate compensation or other appropriate relief.15 Upon termination, the worker should be provided with a reasonable period of notice, or 5 6 7 8 9 10 11 12 13 14 15 Article 2(1) of Recommendation 119; Article 4 of Convention 158. Article 3 of Convention 158; voluntary resignations and retirements are therefore not contemplated. Article 5. Article 6; the issues of what constitutes temporary absence, the extent of medical certification and possible limitations can be addressed by these methods. Article 7. Article 8(1). Article 8(3). Article 9(1). Article 9(2). Article 9(3). Article 10. 176 Commonwealth Caribbean Employment and Labour Law compensation in lieu, except where he is guilty of serious misconduct which would make it unreasonable for the employer to retain his services.16 The Convention also advocates (in conformity with national laws and practice) the provision of compensation for workers in the form of severance allowance or other separation benefits. This should inter alia be based on length of service and wage levels and may either be payable by the employer directly or from a fund financed by employers’ contributions. Alternatively or concurrently, the compensation may take the form of unemployment benefits or other social security benefits.17 If the employer is contemplating terminations because of an economic, technical, structural reason, the Convention envisions that a workers’ representative will be given requisite information, within a reasonable time, relating to the proposed exercise, including the number of workers to be affected and the period over which the terminations will take place.18 Efforts should also be made to have meaningful consultations with a view to either averting or reducing the impact of such a move by the employers. Attempts to provide alternative employment should also be pursued. The Convention also recommends that, in such cases, the relevant national authority should be advised as soon as possible, giving stipulated information.19 The accompanying Recommendation 166 is largely supplementary to the Convention, as it further elucidates the major principles. It advocates that age and absence from work because of compulsory military service are invalid reasons for dismissal.20 It further states that the worker should be given written warnings when dismissal is being contemplated, and should be allowed advocacy assistance when defending himself against allegations of misconduct and poor performance.21 The worker should also be allowed paid time off during a period of notice to seek alternative employment, and be provided with a certificate of employment if requested.22 The Recommendation also provides valuable guidance on procedures to be adopted by employers in cases of economic, technological and structural dismissals and on the matter of consultation with employees on the event.23 Importantly, the Recommendation indicates that the selection of employees for termination should be done in accordance with set criteria which seek to balance the interests of the undertaking with the interests of the affected worker.24 It should also give priority to the rehiring of these workers once the relevant qualification is evident and envisages employers assisting in finding alternative employment, retraining where appropriate and income protection during the period.25 As will be seen, much of the relevant legislation within the Commonwealth Caribbean embodies various aspects of the provisions in the Convention and Recommendations. They are, however, impacted by the operation of national practices and procedures. There is debate regarding whether the imposition of statutory minimum guidelines in this area presents an unacceptable incursion into the purview of management activity, thereby restricting the ability of employers to take necessary employment decisions geared towards making their businesses 16 17 18 19 20 21 22 23 24 25 Article 11. Article 12(1); it should be noted that the Convention provides exceptions for loss of benefits in the case of gross misconduct by the worker, and the employer is not mandated to provide a severance benefit to a dismissed worker merely because he does not meet the relevant qualifying conditions for an unemployment benefit. Article 13. Article 14; these include a written statement of the reason for termination, the number and category of workers to be affected, and the period of time over which the exercise will be carried out. Article 5 of Recommendation 166; this is subject to national legislation on retirement. Articles 7, 8 and 9. Articles 16 and 17. Articles 19, 20 and 21. Article 23. Article 24. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 177 more efficient and competitive in the labour market.26 However, such arguments are countered by the view that workers should be protected against ‘arbitrary and unjustified termination of their employment relationship and against economic and social hardship inherent in their loss of employment’.27 These contending positions make it clear that, despite the international standards outlined above, it is still a very tenuous line which must be drawn by national governments in this area. They must ensure that their regulation of employers’ legitimate economic decisions is not unduly restrictive in the name of promoting employee protection. There is a real risk that excessive control could ultimately lead to the shutdown of businesses, which in turn can affect not just that business and its specific employees but the economy as a whole. As such, the type and extent of legislation which is instituted within each jurisdiction may vary, based on the perceived need of each country. REDUNDANCY, RETRENCHMENTS AND SEVERANCE For a number of reasons (including economic downturn, financial difficulty within an enterprise, and when technological advances have necessitated revamping of operations), employers may have to consider reducing, restructuring or the outright closure of their business. In such cases, before the advent of legislative intervention, unions and other representative bodies were able to negotiate the best options for their members to cushion the blow which could result from these decisions. However, workers who did not have the benefit of representation were often left out in the cold to fend for themselves. Statutory provisions now provide a minimum level of protection for all eligible workers, in the form of redundancy, retrenchment and severance payments upon the occurrence of such events, thereby redressing the inevitable economic fallout which will arise in these circumstances. Concept of redundancy – history of the entitlement The origins of the redundancy and/or severance legislation in national contexts stem not only from the abovementioned international guidelines but also from a realisation of the inability of the common law to fully address the position of disenfranchised workers who lose their jobs. There have been a number of somewhat conflicting theories28 advanced by commentators to substantiate the rationale for the establishment of redundancy or severance legislation. In the UK, when the provisions were first introduced in 1965 by the Redundancy Payments Act, the expressed policy intent was to recognise an employee’s accrued stake in his job29 and not necessarily to cushion a person during a period of unemployment consequent on such dismissal. This concept of a proprietary interest in the job was aptly described by Sir Diarmaid Conroy in the case of Wynes v Southrepps Hall Boiler Farm Ltd30 thus: A redundancy payment is compensation for loss of a right which a long term worker has in his job. Just as a property owner has a right in his property and when he is deprived of it he is 26 27 28 29 30 See discussion in Davies, A.C.L. (2004) Perspectives on Labour Law (1st Ed., Cambridge University Press) p. 155; see also Epstein, R.A. (1984) ‘In Defence of the Contract at Will’ 51 University of Chicago Law Review 947. See ILO (1995) General Survey on Termination of Employment Convention No. 158 and Recommendation (No. 166) Protection against Unjustified Dismissal p. 2. See generally Fryer, R. (1973) ‘The Myths of the Redundancy Payments Act’ 2 ILJ 1; Grunfeld, C. (1989) The Law of Redundancy (3rd Ed., Sweet and Maxwell); Carby Hall, J. (2000) ‘Redundancy’ 42 Managerial Law 1–127. Lockton, D. (2006) Employment Law (5th Ed., Palgrave Macmillan) p. 354. (1968) ITR 407 at 407. 178 Commonwealth Caribbean Employment and Labour Law entitled to compensation, so a long term-employee is considered to have a right analogous to a right or property in his job, he has a right to security and his rights gain in value with the years. The issue was also addressed by Lord Denning in Brindle v HW Smith (Cabinets) Ltd31 when he stated: The Act gives the employee a right in his job which is akin to a right in property … It is not unemployment pay. I repeat ‘not’. The employee is therefore entitled to unemployment pay even if he obtains a redundancy pay, just as much as he is entitled not to lose his redundancy pay if he obtains a new job straight away. However, Jefferson argues that this conclusion is incorrect, since the ‘right’ does not appear to exist until the employee is dismissed;32 after all, no employee is free to sell or otherwise dispose of their job during its currency! An alternative divergent view is that redundancy payments are lump sum payments designed to tide an employee over the period of uncertainty and hardship after dismissal or redundancy.33 Yet another posited rationale was that it served as an incentive for persons to leave their jobs to allow for labour mobility and thereby provide management with a free hand in retooling and restructuring their business while reducing the possibility of industrial disharmony.34 Within the Commonwealth Caribbean, the first enactment which provided protection to workers in the event of redundancy situations was St. Lucia’s Contracts of Employment Act of 1970, followed closely by Barbados’ Severance Payments Act in 1971. Jamaica next promulgated the Employment (Termination and Redundancy Payments) Act in 1974 and subsequently Antigua and Barbuda passed the Labour Code in 1975. Legislative intervention in other Commonwealth Caribbean jurisdictions arrived during the late 1970s,35 the 1980s,36 the 1990s37 and, most recently, in 2001 when the Bahamas enacted the Employment Act. As in the UK, the preponderant view was that severance or redundancy payments were envisioned as compensation for the employee’s loss of the job, which increases with the effluxion of time. In Antigua, the statement of public policy in relation to redundancy is enunciated as follows: As an individual works at a job, he gradually earns an equity therein, above and beyond his periodic wages, privileges, and allowances; and the maintenance of this equity requires protection.38 The Hansard of the Jamaican Parliament during the passage of the Employment (Termination and Redundancy Payments) Act conveyed similar sentiments held by lawmakers as the major rationale for the law’s existence.39 31 32 33 34 35 36 37 38 39 (1973) 8 LTR at p. 70, [1973] ICR 12 at p. 21. Jefferson, M. (2000) Principles of Employment Law (4th Ed., Cavendish Publishing) p. 249. Honeyball, S. (2008) Textbook of Employment Law (10th Ed., Oxford University Press) p. 201; Carby Hall, J. (2000) ‘Redundancy’ 42 Managerial Law 1 and 8. Rideout, R. (1972) Principles of Labour Law (1st Ed., Sweet and Maxwell) p. 163. Belize Labour Act (amended by Act 4 of 1979 and Act 3 of 2011); Dominica Protection of Employment Act 1977. St. Vincent and the Grenadines Protection of Employment Act 1980 (repealed and replaced by Act 20 of 2003 Protection of Employment Act); Trinidad and Tobago Retrenchment and Severance Act 1985; St. Kitts and Nevis Protection of Employment Act 1986. Guyana Termination of Employment and Severance Payments Act 1997; Grenada Employment Act 1999. Basic Employment Antigua Labour Code C2(6). See views of MP Hugh Shearer, a prominent union leader and past Prime Minister: ‘… long service workers where there is no union protection are being dismissed for the most frivolous reasons and with the pressures of the economic conditions being used as reasons today and more and more workers are being dismissed without compensation for their years of service’ (remarks made in the House of Representatives May 15, 1974); and Dudley Thompson, another respected union leader: ‘… it is familiarly held that a man’s job belongs to him; it is something he owns like his glasses … and where the worker in an employment there is a relationship, he contributes to his employer’s business, he is entitled to compensation when his job, his property no longer exists for him, if you take away something which he had, something upon which his family and his dignity depends.’ (remarks made in The Senate, May 31, 1974). Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 179 Difference between severance and redundancy At the outset it should be indicated that, within the Commonwealth Caribbean, the terms ‘severance pay’ and ‘redundancy pay’ may be accorded differing meanings. Thus, according to Downes, Mamingi and Antoine: … [I]n terms of payment for involuntary termination of employment labour law provides for severance pay (i.e. compensation for termination of employment for whatever the reason) and redundancy pay (i.e. compensation for termination due to existent economic or technological difficulty). The redundancy pay concept is more widely used in the region.40 However, the terms have in some instances been used interchangeably, to encompass either legal construct, and this has created some level of confusion for the ordinary man. The challenge was clearly enunciated by Jack Dear in the Barbados House of Assembly Debates on the Severance Payments Bill: … it is unfortunate in Barbados that the local statute did not follow not only the provisions of the English Act, but the name of it, because the fact that the English Act is called the Redundancy Payments Act creates immediately in the minds of people that payments are made for redundancy. But since ours is called the Severance Payments Act many people in Barbados believe that whenever their employment is severed they are entitled to handshake, preferably gold but at least silver and it does not really matter why it is that they are severed. So if the law was called the Redundancy Payments Act … this would help the situation.41 What should therefore be recognised is the fact that entitlement to each benefit is based squarely on specific statutory criteria which must be fulfilled before any payment becomes applicable. Severance entitlements In the classic legal designation of severance (that is, payment of compensation simply because of termination for whatever reason, separate and apart from a redundancy-type situation which will be discussed below), five Commonwealth Caribbean countries42 have legislated such an entitlement, with another actively considering the matter.43 A major consideration in relation to the payment of a severance benefit is the length of time which the employee had been engaged in employment. Belize operates what is arguably the most complex severance regime, which was instituted by the 2011 amendment44 to the Labour Act. When the worker is employed continuously for five to ten years, and is terminated or retires on or after reaching sixty years old or on medical grounds, he is eligible for a severance payment.45 If, however, the worker is employed for more than ten years and (a) is terminated on similar grounds and, additionally, in circumstances which are not considered as ‘dismissal’ under the Act, (b) has 40 41 42 43 44 45 Downes, A. S., Mamingi, N. and Antoine, R.-M. B. (2004) ‘Labour Market Regulation and Employment in the Caribbean’ in Heckman, J. and Pages, C. (Eds) Law and Employment Lessons from Latin America and the Caribbean (University of Chicago Press), 517–552 at 522. See Barbados House of Assembly Debate, Official Reports 1971 p. 3191 – quoted in Chaudhary, R. and Castagne, R.M. (1979) Aspects of Caribbean Labour Relations Law (Coles Printery, Barbados) p. 142. Belize (Labour Act, as amended, s 183); British Virgin Islands (Labour Code Section 104); Guyana (Termination of Employment and Severance Payment Act, s 21); St. Vincent and the Grenadines (Protection of Employment Act, s 23); and St. Lucia (Labour Code Section 161). St. Kitts and Nevis Draft Labour Code. Act 3 of 2011. Section 183(1)(a) Labour Act Belize – the entitlement in this case is one week’s wages for each completed year of service. 180 Commonwealth Caribbean Employment and Labour Law abandoned the job for a good and sufficient reason,46 or (c) is employed on a fixed-term contract that makes no or less favourable provision for severance pay, he is eligible for greater severance payments.47 A worker with a minimum of ten years’ continuous service is entitled to a gratuity calculated on the basis of a severance payment upon his resignation.48 However, the Act institutes a specific methodology of calculation dependent on the length of the employment prior to the promulgation of the Act.49 Where the worker proposes to rely on a medical ground for the termination and subsequent severance entitlement, he is obliged to present a written notice accompanied by a medical certificate to that effect. If the employer and the employee are unable to arrive at a satisfactory agreement in relation the employee’s fitness to continue working within twenty-one days, the Minister must constitute a medical board to determine the matter.50 If the qualified worker dies before the payment of the entitlement is disbursed, the employer is required to make payments to the deceased estate within one month of death, failing which the employer may be subjected to civil proceedings in that regard.51 The worker is protected by a non-opt out clause,52 and the entitlement is not waived by virtue of the fact that the employee is due other retirement benefits under any scheme to which the employer contributes.53 It should also be noted that the worker remains eligible for other benefits under any collective agreements or employment contract which is not related to a period of employment prior to becoming entitled to the severance benefit.54 The St. Vincent and the Grenadines legislative provisions are also expansive. The right to the payment is created by section 22(1) of the Protection of Employment Act55 and, to be eligible, the worker must have a minimum of two years’ continuous service with the employer, which is deemed to include any previous employment with that employer when the business has changed hands by way of sale or other disposition.56 The termination should be related to any cause other than redundancy (which is a defined concept) and excludes good cause dismissals,57 retirement on the grounds of age or consequent on disciplinary action.58 Employees may, however, still be entitled to severance payment if they were employed for more than five years and the disciplinary proceedings did not relate to dishonesty or refusal to discharge their job function. Arguably this provision is more beneficial to the worker than in the other jurisdictions 46 47 48 49 50 51 52 53 54 55 56 57 58 See s 41 of the Act; see also Coye v First Caribbean International Bank (Barbados) Limited Suit No 981 of 2009 Belize SC (unreported) delivered February 18, 2011 [BZ 2011 SC 8], where the court found that the employee abandoned the job but this was not for a good and sufficient reason; thus he was not eligible for a severance payment (para 33). Section 183(1)(b) Labour Act Belize – the entitlement in this case is two weeks’ wages for each completed year of service. Section 183(2) Labour Act Belize – the entitlement in this case is one week’s wages for each completed year of service. Section 183(3) Labour Act Belize – the entitlement in this case, for the years before 2011, is one week’s wages per year and thereafter two weeks for each completed year of service. Sections 186(1) and (2) Labour Act Belize. Section 188 Labour Act Belize. Section 190 Labour Act Belize; the benefit may not be assigned (s 192). Section 194(1) Labour Act Belize – note this excludes National Insurance / Social Security schemes. Section 194(2) Labour Act Belize. The entitlement is calculated on the basis of two weeks’ pay per year for two–10 years’ service; three weeks’ pay per year for 11–25 years’ service; and four weeks’ pay per year for service in excess of 25 years. The rate of pay is that payable at the time of termination, and ½ year’s employment is to be counted as one year, and less than ½ is not reckoned in the calculations (s 25(1) Protection of Employment Act). Payments are due and payable forthwith upon termination (s 27(2) Protection of Employment Act). Section 23(1) Protection of Employment Act. Section 9 defines this to include inter alia being found guilty of a criminal offence related to the employment, lack of capability, repeated misconduct, and unsatisfactory performance. Section 23(3) Protection of Employment Act. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 181 with similar benefits.59 Unlike the Belizean fluid provision regarding assessment of medical conditions for the purpose of severance pay, this jurisdiction’s law provides that the medical practitioner should certify that the employee is incapable of performing their duties because of physical or mental illness for a protracted period of at least six months and the condition is likely to be permanent.60 The Guyanese legislation clearly provides for severance payment when the employment comes to an end simply by reason of severance, whether it be lawful or unlawful.61 If, however, the worker is summarily dismissed or terminated after being given fair warning of lesser misconduct and unsatisfactory performance,62 he will be disenfranchised. The minimum continuous employment requirement to ground entitlement is one year63 and, whereas the Belizean law is specific as to when the payments attach, the Guyana law appears silent on the issue, prompting Cumberbatch to opine that ‘… the Guyanese employee who is dismissed after the coming into effect of [the Act] would be prima facie entitled to a severance … allowance assessed with reference to her pre [Act] employment’.64 The matter is not as lucid in Grenada, where the Employment Act simply states that, where an employee is dismissed at the behest of the employer, and the worker has completed one or more years of continuous employment, and is otherwise not entitled to a gratuity, he is entitled to be paid a ‘termination allowance’.65 The only exclusion allowed is where the employee is fairly dismissed by reason of his conduct or has reached retirement age.66 Conceivably, this provision could encompass a severance payment based solely on the dismissal and on the employee’s years of service. The most recent example of this concept is found in the St. Lucia Labour Code.67 After defining severance pay as being ‘pay which is attributable to length of service on termination’,68 the Act (instead of setting out the parameters for entitlement) curiously goes on to empower the Minister (after consultation with the trade unions and the employers’ organisations) to make Regulations relating to severance.69 It does not appear that the Minister has yet made any such Regulations, but the Act states that, until such time as the Minister promulgates them, existing collective agreements and practices relating to severance should continue.70 In an era of more and more prescriptive legal methods of regulation and dwindling union representation, it is surprising that St. Lucia has chosen to take this route. It seems like a throwback to the previous unacceptable conditions which were denigrated in Jamaica.71 Nevertheless, it 59 60 61 62 63 64 65 66 67 68 69 70 71 See Antoine, R.-M. B. (1992) The CARICOM Labour Law Harmonisation Report (Faculty of Law University of the West Indies) p. 381, where she describes this provision as ‘attractive’ and advocates its adoption in any CARICOM harmonised legislation. Section 11 Protection of Employment Act. Section 21(2) Termination of Employment and Severance Payment Act; see commentary by Cumberbatch, J. (1998) ‘The Termination of Employment Statutory Reform in Guyana’ 23 WILJ 9–33. Section 11 Termination of Employment and Severance Payment Act. Section 21(1) Termination of Employment and Severance Payment Act; the entitlement is calculated on the basis of one week’s pay per year for the first three years’ service; two weeks’ pay per year for 5–10 years’ service; and three weeks per year for service in excess of 10 years. Cumberbatch, J. (1998) ‘The Termination of Employment Statutory Reform in Guyana’ 23 WILJ 9–33 at 33. Section 84(1) – the benefit is calculated at not less than one week’s wage for each year of completed service. Section 84(4) – for the purposes of this discussion, we exclude the provision related to unreasonable refusal of an offer of re-employment. Section 161. Section 2 Labour Code St. Lucia. Section 161(1) Labour Code St. Lucia. Section 161(2) Labour Code St. Lucia. In the debates surrounding the passage of the ETRPA, Dudley Thompson stated: ‘… severance pay has become an institution as a result of negotiation, but outside of collective bargaining there is no such practice, it is non-existent and therefore the law is going to make a compulsion and so set up minimum requirements’ (remarks made in The Senate May 31, 1974). 182 Commonwealth Caribbean Employment and Labour Law is possible that this decision may be warranted in a society where issues surrounding such matters are subject to an established and entrenched custom and practice, which could therefore require little or no statutory intervention. Unemployment insurance/benefit A concept which has some relation to severance and redundancy is that of unemployment insurance. This is a cash benefit payable to workers who have some work history and have become recently unemployed.72 It is usually intended to be a short-term support to workers who are made redundant or retrenched through no fault of their own. It is intended to replace lost income and provide a cushion until workers can find new employment. It should, however, be noted that, although entitlement to the benefit is triggered by virtue of an employee’s termination or ‘short time’ working, it is also predicated on their payment of social security contributions. Thus, workers are usually unable to claim it unless they contributed under the requisite national insurance scheme. In the Commonwealth Caribbean, only two countries (Barbados73 and the Bahamas)74 have so far legislated an unemployment benefit, which provides for limited periodical payments to an employed person who has lost his job or is working on reduced time during a designated period.75 The establishment of unemployment benefits is in accordance with Convention 1587676 and, in most countries, is complementary to the payment of redundancy and/or severance payments. Defining redundancy The designation ‘redundancy’ is generally adopted to classify compensation for termination due to encumbering economic or technological reasons. Redundancy has been defined by the various parliaments throughout the region in diverging ways and using different nomenclatures.77 However, what is most important to recognise is that, if the elements of the definition are not satisfied, no claim for redundancy is sustainable, regardless of how ‘redundant’ the worker may appear to the ordinary man. Within the Commonwealth Caribbean, three countries retain a definition similar to the UK78 equivalent: the Bahamas,79 Barbados80 and Jamaica.81 In essence, in these jurisdictions the circumstances of redundancy revolve around whether the employer is totally closing/ceasing business, moving the actual place of business, or proposing to reduce the labour force numbers involved in a particular type of work because the business requires this to stay afloat economically. Thus, the legal provisions state: 72 73 74 75 76 77 78 79 80 81 Mazza, J. (2000) ‘Unemployment Insurance: Case Studies and Lessons for Latin America and the Caribbean’ (Inter America Development Bank, March 2000) p. 5. Barbados National Insurance and Social Security Act Section 21(1)(h) – instituted in 1981. Bahamas National Insurance Act Section 21(1)(h) – instituted in 2009. For details on the calculation and payment of the benefit in Barbados, see information provided at www.nis.gov.bb/index_.cfm?section=benefits&subsection=Unemployment%20Benefit. See Article 12(1)(c). Apart from the word ‘severance’, the word ‘retrenchment’ is used both in Antigua and Barbuda and also in Trinidad and Tobago. Section 139(1) Employment Rights Act 1996. Section 27 Employment Act. Section 3(3) Severance Payments Act. Section 5(2) Employment Termination and Redundancy Payments Act. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 183 An employee shall be deemed to be dismissed because of redundancy if his dismissal is wholly or mainly attributable to– (1) (2) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased, or intends to cease, to carry on that business in the place where the employee was so employed; or the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish. In addition to these two classifications, Barbados and Jamaica each have one other scenario which qualifies as a redundancy, while the Bahamas sets out an express exclusion. In Barbados a redundancy situation also exists where dismissal occurs because of a natural disaster or is wholly or mainly attributable to the destruction of, or damage caused to, the employer’s place of business by fire, flood, hurricane, earthquake or act of God.82 Jamaica possesses a unique redundancy situation based on the fact of whether the worker has suffered personal injury caused by an accident arising out of (and in the course of) his employment, or has developed a prescribed disease83 which is due to the nature of his employment.84 The Bahamian exclusion bars employees who are engaged on fixed-term contracts in respect of a specific construction project which is less than two years in duration from receiving the benefit.85 The remaining countries also possess elements of the abovementioned definition although, arguably, the wording used makes the issue much clearer, while at the same time inserting some other circumstances which should be considered as redundancy situations. Thus the Antigua and Barbuda Labour Code86 prescribes as being redundancy any situations where, by virtue of lack of customers’ orders, retrenchment,87 the installation of labour-saving machinery, an employer’s going out of business, a force majeure, or any other reason,88 work which a person was last employed to perform has ceased or substantially diminished. In Belize the matter is extensively addressed; accordingly, if a worker is terminated or is part of a reduction of the workforce as a direct result of any of the following circumstances, the dismissal amounts to redundancy: • the modernisation, automation or mechanisation by the employer of all parts of the business; the discontinuance by the employer to carry on all or part of the business; the sale or disposition of all or part of the business; the reorganisation of the business to improve efficiency;89 82 83 Section 3(3)(b); the act of God may or may not be similar to any of the other causes. The list of prescribed diseases in found in the Schedule to the Employment (Termination and Redundancy Payments) Regulations, and the procedure to be followed in utilising the provision is found in Regulation 7. Section 5(2)(c). Section 27. Section C3 – this definition is based on an amendment made by Act 16 of 1998; previously the definition stated ‘... tasks which a person was last employed to perform no longer existed’ as opposed to the current position of ‘work which a person was last employed to performed has ceased or substantially diminished’. See Linda Richardson v Royal Antigua Hotel Industrial Court Ref. 7 of 1989 (unreported), which defines retrenchment as ‘removing that which is superfluous or reducing the amount’; see also Sundry Workers of the Antigua Port Authority v Antigua Port Authority Suit No 8 of 2001 (unreported) delivered January 28, 2003 [AG 2003 CA 2], which indicates (at p. 4) that the Code defines retrenchment as ‘the cutting down or reduction of expenses and/or the introduction of economies’. See arguments in this regard in Antigua Village Condo Corporation v Watt Civil Appeal No. 6 of 1992 (unreported) delivered February 7, 1994 [AG 1994 CA 2]. This is, however, subject to the worker being instructed and advised of unsatisfactory performance by virtue of the provisions of s 44(4). • • • 84 85 86 87 88 89 184 • • • Commonwealth Caribbean Employment and Labour Law the impossibility or impracticality for the employer being able to carry on the business at its usual rate or level or at all due to a shortage of materials, a mechanical breakdown, or an act of God; reduced operation in the employer’s business made necessary by economic conditions, including a lack of or change in markets, contraction in the volume of the work or sales, reduced demand or surplus inventory; and any other circumstances that the Minister (by Order published in the Gazette) may determine.90 The Dominican legislative provision is in pari materia with its Belizean counterpart, save in the following respects: there is also a provision which recognises that the fact of the employer’s need for employees in a particular category has diminished or ceased as a type of redundancy, as well as a force majeure situation.91 The Guyanese legislation is also similar in most respects to the Dominican disaggregation.92 St. Vincent and the Grenadines’93 legislation is similar to Belize, Guyana and Dominica, except there is no force majeure provision and there is no itemisation of what constitutes ‘economic circumstances’. The St. Kitts and Nevis94 provisions are also akin to the abovementioned countries, save that the disposition by sale or otherwise of the business is not contemplated since, ostensibly, any incoming buyer or person acquiring the business must meet the obligations accruing to the employees, and the sale must be reported to the Labour Commissioner.95 Also there is no mention of ‘impracticability’ – only ‘impossibility’ to carry out business normally – and there is no express mention of economic conditions – only reduction in business because of lack or changes in markets. The St. Lucia Labour Code,96 while similar in most respects to the provisions in St. Vincent, Belize, Guyana, St. Kitts and Dominica, institutes the new concept of constructive redundancy.97 This deems an employee redundant due to the changing requirement of the business relating to new skills, qualifications or expertise. Further, when the employee (with or without consent) is consistently provided with terms and conditions of work which is not of the kind which he was employed to do, there is a redundancy situation which entitles the employee to compensation.98 Distinctive provisions are applicable under Trinidad and Tobago’s Retrenchment and Severance Benefits Act. Section 2 defines redundancy as the existence of surplus labour in an undertaking for whatever cause. Retrenchment is thereafter defined as being the termination of employment at the initiative of an employer for the reason of redundancy. Accordingly, the only reason that a retrenchment can be pursued is when there is surplus labour in relation to the employer’s manpower requirements. It is also noteworthy that, in Grenada, there are no specific statutory provisions for redundancy; however, it is conceivable that the sections which address ‘termination allowance’99 could be equally pertinent in analogous cases. 90 91 92 93 94 95 96 97 98 99 Labour Act Section 45(2). Protection of Employment Act Section 11; however, there is no option for the Minister to make a determination of a redundancy situation. Guyana Termination of Employment and Severance Pay Act, s 12(2); there is no provision relating to the employer’s need for employees in a particular category having diminished or ceased. Protection of Employment Act Section 12(2). Protection of Employment Act Section 5(e). Protection of Employment Act Section 6. Section 145(2). Section 146(1). Section 146(2). Section 84(1) Employment Act – this is so, especially since it speaks to the unreasonable refusal of alternative employment as an exclusion to the benefit which is usually linked to redundancy exercises. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 185 The case law further elucidates these statutory provisions. In the event that the business is completely closing down operations, all that is required is to ascertain whether it has actually ceased operations and nothing more. Thus in Moon v Homeworthy Furniture (Northern) Ltd100 the employer closed down its factory and made all the workers redundant. The redundancy was challenged on the basis that it closed because of bad industrial relations between the parties. The Employment Appeal Tribunal ruled that there was no need to examine a reason for the dismissal in this case, since there was in fact a cessation of business which grounded the redundancy situation. This decision evinces the reluctance of courts to restrain the genuine use of management prerogative.101 A similar result was evident in the Barbadian case of Gerald Springer et al v Humphrey’s Bakery and Tavern Limited102 where, although bad industrial relations existed, this was used to show that the employer was anxious to close down the business and get rid of all the employees; hence there was a redundancy. However, it should be noted that it is not the subjective opinion of the employer in making such a decision that will be the issue when considering the dismissal for the purposes of unfair dismissal.103 In relation to the relocation of the business requirement, the early judicial approach to interpretation was that, if the contract contained a mobility clause, the employee would be obliged to move to accommodate a change of business location.104 As a slight concession the courts were not quick to imply the existence of mobility clauses to justify employers asking workers to move to new locations.105 However, if the move was within a reasonable distance from the previous place of employment, it could be condoned.106 The court’s current view now places emphasis on the actual location of the undertaking vis-à-vis the requirements of the employee to undertake their duties in determining whether a redundancy situation exists.107 In High Table Ltd v Horst108 the appellant was made redundant when the need for her services at the place of employment ceased. She claimed that, since there was a mobility clause in her contract, she should have been offered another position elsewhere in the organisation. The UK Court of Appeal dismissed the claim, taking a factual approach to determining the term ‘place of work’. In cases of this nature, it should also be noted that the request to move may constitute an ‘offer of alternative employment’ which, if unreasonably refused, would then disentitle the worker from receiving a redundancy benefit (discussed further below). The question of work of a particular kind is a concept that creates a myriad problems to navigate. In essence, what must be ascertained is whether the employer genuinely no longer needs the services of particular workers because of diminished work requirement, so that there is an excess or surplus of labour, necessitating dismissals. The courts formulated two tests to assist in determining whether cases meet this criterion for redundancy. Firstly, the job function 100 [1976] IRLR 298, [1977] ICR 117; see also Hindle v Percival Boats Ltd [1969] 1 All ER 836 at 847, where Widgery LJ stated: ‘it is not the policy of this [Redundancy Payments] Act to reward long service and good conduct as such but only to compensate an employee who is dismissed for redundancy as defined in section [139]. The function of the Tribunal is to apply the statutory definition to the facts not to seek to look behind the facts and assess the rights and wrongs of the employer’s decision to make the redundancy.’ 101 See commentary in Painter, R., Holmes, A. and Migdal, S. (2000) Cases and Materials on Employment Law (3rd Ed., Blackstone Press) p. 514. 102 Redundancy Tribunal Case No. 124-134 of 1976 reported in Chaudhary, R. and Castagne, R.M. (1979) Aspects of Caribbean Labour Relations Law (Coles Printery, Barbados) p. 145; see also Suit No. 647 of 1977 Tasker (Brenda Leo) v Riddell and Co. (unreported) delivered January 10, 1979 [BB 1979 HC 3], which held on appeal that, once the relevant tribunal procedures were followed, an ex parte finding of redundancy could be sustained. 103 Baxter v Limb Group of Companies [1994] IRLR 572. 104 UK Atomic Energy Authority v Claydon [1974] ICR 128, [1974] IRLR 6. 105 O’Brien v Associated Fire Alarms Ltd [1968] 1WLR 1916, [1969] 1 All ER 93. 106 McAndrew v Prestwick Circuits Limited [1988] IRLR 514. 107 See Bass Leisure Ltd v Thomas [1994] IRLR 104. 108 [1997] IRLR 513. 186 Commonwealth Caribbean Employment and Labour Law test examined the actual work the employee undertook (that is, the functions of the job) and, if this still remained, there would be no redundancy situation.109 On the other hand, the contractual test examined whether the work which could possibly be performed under the contract of employment has diminished or was expected to cease and, if not, there was no redundancy.110 Both tests were questioned in Safeway Stores plc v Burrell,111 and the court then formulated the so-called ‘statutory test’. This sets out the proper questions to determine as being: • • • was the employee in fact dismissed? if so, was there a diminution or cessation in the requirements of the employer’s business for the employees (not the particular employee) to carry out work of a particular kind currently or in the future? was the dismissal caused wholly or partly because of this state of affairs? This test was unequivocally approved in Murray v Foyle Meats Ltd.112 So, to ground a successful redundancy claim, it must be shown that the employee’s dismissal was either wholly or partially attributable to the state of affairs in the business and not the position in relation to the work of any particular employee. This issue was addressed head-on by the Jamaican Court of Appeal in Computers and Controls (Jamaica) Limited v Saddler.113 Here the respondent was successful at first instance in his claim for a redundancy payment consequent on the sale of the appellant company at which he was previously employed for over twenty years. The new owners of the company had offered Saddler new terms of engagement, which he had refused to accept, but thereafter worked for them as a ‘self-employed’ person in a similar capacity. The Supreme Court reasoned that there was in fact a redundancy situation within the meaning of Section 5 of the Employment (Termination and Redundancy Payments) Act, since the respondent was actually doing the work he previously did as an independent contractor, and therefore the requirements of the business for a full-time employee had diminished. Moreover, since the new contract offered to Saddler would have substantially decreased his income, it also pointed to the fact that there was a diminution of the business requirements for his work, and hence a redundancy situation existed. Relying on the Murray principles, the Court of Appeal reversed the Supreme Court decision and ruled that the emphasis should be on whether the requirement of the business itself had diminished and not whether there was a change in the contractual arrangements between the parties. Indeed, the fact that the respondent was still carrying on his usual functions for the company was ample evidence that the business still required those services, notwithstanding that they were being done by a self-employed individual.114 This decision can be contrasted with the earlier case of Haye v Fiscal Services (EDP) Limited,115 where the Supreme Court refused to order a redundancy payment because, in its view, the 109 North Riding Garages v Butterwick [1976] 2 QB 56. 110 Nelson v BBC [1980] ICR 100. 111 [1997] IRLR 205. 112 [1999] ICR 287, [1999] IRLR 562; see also Sutton v Revlon Overseas Corp [1973] IRLR 173. 113 SCCA No. 64 of 2005 (unreported) delivered March 14, 2008; see also Neely v Credit Suisse Trust Limited Suit No COM/LAB 15 of 2005 Bahamas HC (unreported) delivered January 28, 2009 [BS 2009 SC 12], which expounds similar principles. 114 See also Private Power Operators Limited v National Workers’ Union IDT Award 1 of 2002 (unreported) delivered January 9, 2003 – the Industrial Disputes Tribunal found that the work of a particular kind previously done by the worker as a repairman had diminished and there was a redundancy situation within the meaning of the ETRPA; see also Dr Michael Haley v The University of the West Indies [2010] JMCA Civ 49 (unreported) delivered December 20, 2010, where the Jamaican Court of Appeal concurred with the court below in finding that the appellant was not dismissed by reason of redundancy since he did not prove that the need of the university for his services had diminished. 115 SCCA No. 48 of 2000 (unreported) delivered May 21, 2001 [JM 2001 CA 22]. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 187 plaintiff had not proven that his dismissal was because of redundancy. The Court of Appeal had arrived at the opposite conclusion in finding that the appellant was dismissed from the position of Director of Audit and Security on the basis that he was the only person employed in that department and, further, that no one filled the post for a year after his departure. It is submitted that this decision may well be incorrect in light of the guidelines given in the Murray judgement, since the company continued to require the services of the Director of Audit and Security, notwithstanding the period when no one was appointed in the post. The Barbadian case of Playfair Limited v Daniel116 also illustrates the point admirably. Here the government instituted a new tax regime that the company anticipated would negatively affect their bottom line. They therefore proposed a new contract whereby the workers would work six days per week but only be remunerated for five days. The complainant did not accept the proposal and did not return to work, because she was advised that her employment would end with her refusal. She sued for redundancy compensation. The High Court ruled that the tribunal constituted under the Severance Payments Act was correct in ordering the redundancy payment, as the plaintiff’s dismissal was attributable wholly or mainly to the fact that the employer expected business to cease or diminish due to the tax measures. It should also be noted that Section 38(2) of the Act creates a rebuttable presumption on the part of the employer that an employee is dismissed by redundancy117 or act of God and, in the instant case, the employer failed to discharge the burden of proof. The abovementioned cases are illustrative of the general position in Jamaica, Barbados and the Bahamas, where the statutory provisions are similar to the UK. However, in Antigua and Barbuda a different modus operandi is employed by virtue of the definition of redundancy instituted by statute. Thus, in US Naval Facility v Lewis118 the Court of Appeal was asked to review the decision of the Antigua Industrial Court to the effect that a redundancy situation existed since workers were dismissed in circumstances where the tasks they previously performed remained intact but were now being undertaken by other persons. After clearly enunciating that the ‘UK legislation and cases cited do not apply … as the legislation is different’119 the Appeal Court upheld the decision, stating that ‘a prerequisite to a redundancy situation is the non-existence of tasks’.120 In Smith et al v Caribbean Hotel Management Services Limited T/A Club Antigua121 the issue of whether a redundancy situation existed again came up for determination. Using the pre-1998 definition of redundancy, the Industrial Court in Antigua concluded that there was no redundancy situation, since the tasks that the employees previously executed did not disappear or cease to exist but rather they were ‘outsourced’ to so-called independent contractors. The important point to recognise is that there must be a genuine factual basis to sustain any employer’s reliance upon the legal construct of redundancy.122 Accordingly, in Kirwan v Jumby Bay Island Company Limited,123 after examining the case (the resort where the claimant worked was closed, to facilitate renovations, thus reducing the need to have two ferries operating to take guests to and from the island), the Industrial Court concluded that a redundancy situation existed. Using the post-1998 Labour Code definition, it found that the work she performed as a ‘mate’ on the ferry had, as a matter of fact, substantially diminished by virtue of the decision to 116 Suit No. 1467 of 1988 (unreported) delivered September 28, 1990 [BB 1990 HC 57]. 117 See Thompson v Greenidge et al. [1975-1982] Barbados National Insurance Tribunal Reports 185. 118 (1983) 31 WIR 191. 119 Ibid. at 195. 120 Ibid. at 195. 121 Industrial Court Ref. # 45 of 1996 (unreported) delivered March 12, 1999 [AG 1999 IC 1]. 122 See Civil Appeal No 17 of 1992 Cove Hotels (Antigua) Limited v Walling (unreported) delivered October 31, 1994 [AG 1994 CA 14]. 123 Reference No. 4 of 2010 (unreported) delivered June 16, 2011. 188 Commonwealth Caribbean Employment and Labour Law take one ferry out of operation. A similar conclusion was reached in Robinson v Cable and Wireless (Dominica) Limited,124 where the claimant was dismissed ostensibly on the grounds of redundancy and the need to reduce staff. However, it was shown during the course of the trial that the company increased staff and promoted other employees in order to address the claimant’s job function. Thus the court ruled that there was no true redundancy situation, and consequently the employee was wrongfully dismissed. The jurisprudence in Trinidad and Tobago provides clarity regarding their statutory definition. In National Union of Government and Federated Workers v Universal Projects Ltd125 the Industrial Court accepted the argument of the employer that there was a genuine reduction in the need for workers on a fixed-term project that was substantially concluded, leading to a surplus of labour.126 As such, the worker was fairly retrenched.127 However, conversely, the court found that there was no genuine redundancy in Bank and General Workers’ Union v Trinidad Express Newspapers Limited,128 where three workers were retrenched on the basis that computerisation of the company’s processes created surplus labour. It found that, within two weeks of dismissal, two of the workers were re-employed as part-time contract workers, thus evincing a continuing need for their services which belied the company’s contention that there was a ‘surplus’. The question of whether ‘contracting out’ of services creates a surplus, and thus a redundancy situation, was examined in Oilfield Workers’ Trade Union v Schlumberger Trinidad Incorporated.129 The Industrial Court ruled that, once there was a genuine retrenchment within the bounds of management prerogative which occasioned a surplus of workers, the retrenchment would not be harsh and oppressive.130 The Industrial Court has also shown that it will not countenance the use of retrenchment or redundancy as a smoke screen for actual termination of workers for other grounds. Thus, in Transport and Industrial Workers Union v Trinidad Distributors Limited131 the Industrial Court indicated that ‘… while employers are free and entitled to reorganise and restructure their business operations as they see fit … the reorganisation and restructuring appeared to be quite superficial involving the mere reallocation of storage space for goods and redeployment of managers’.132 There was therefore no genuine surplus of labour requiring a retrenchment. Importantly, a plea of financial crisis is not an acceptable ground for redundancy. Thus, in Transport and Industrial Workers’ Union v CGA Limited133 the court, while acknowledging that ‘… financial hardship is often the reason why employers find it necessary to take measures that eventually result in retrenchment e.g. reorganisation or reduction of operations’, found it necessary to emphatically reiterate that ‘… the sole criterion for retrenchment is redundancy’.134 The use of ‘creative 124 Suit No DOM NCY 0381 of 2004 Dominica HC (unreported) delivered April 11, 2006 [DM 2006 HC 4]. 125 TD 265/03 (unreported) delivered May 29, 2005. 126 Similar view expressed about the pre-1998 provision in the Antigua Labour Code; see Antigua Workers’ Union v Antigua Gases Ltd [1988–89] 1 Caribbean Commercial Law Reports 248. 127 See also TD 91 of 1996 Oilfields Workers’ Trade Union v Nestle Trinidad and Tobago Limited (unreported) delivered December 15, 1999, where the court found a genuine redundancy as the company proved that it abolished the cash sales method and contractors distributed goods from orders obtained by company salesmen. 128 TD 3 of 1997 (unreported) delivered April 28, 1999. 129 TD 131 of 1993 (unreported) delivered November 22, 1995. 130 See also Oilfields Workers’ Trade Union v Ramatally Brothers General Contractors TD 34 of 1990 (unreported) delivered April 26, 1991 [TT 1991 IC 28]. 131 TD 4 of 1991 (unreported) delivered July 19, 1992; see also TD 314 of 2004 Communication Workers’ Union v Maibrol Insurance Brokers (unreported) delivered February 16, 2007. 132 Ibid. 133 TD 10 & 12 of 1998 (unreported) delivered October 16, 2000; see also TD 119 of 1993 Seamen and Waterfront Workers’ Trade Union v Port Authority of Trinidad and Tobago (unreported) delivered February 27, 1998; TD 22 of 2011 National Truckers Operators and General Workers Union v AM Industrial Supplies Ltd. (unreported) delivered November 28, 2012. 134 Ibid. at 5: ‘that is to say a worker must be surplus to the employers’ requirements’. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 189 measures’ (such as a thinly veiled franchise arrangement) will also be closely examined by the Industrial Court to ascertain if, in fact, a so-called redundancy exercise meets the legal requirements.135 The question of a force majeure or act of God being a basis for redundancy is of much more relevance to Commonwealth Caribbean countries by virtue of their geographical location, which puts personnel and infrastructure at high risks, because of susceptibility to natural disasters such as hurricanes on an annual basis. The employment protection offered to workers in these occurrences is therefore welcomed. The challenge will be to ascertain what situations will qualify as such events. In Sundry Workers [Veronica Joseph & Others] v Kings Casino Limited,136 although the Eastern Caribbean Court of Appeal recognised that a hurricane could in fact be considered as a force majeure for the purpose of redundancy, it declined to agree with the Industrial Court that this was the position in the instant case. Having reviewed the case, it concluded that the court’s decision (that there was a redundancy following the passage of Hurricane Luis which caused the employer to reduce staff) could not be sustained as it did not follow logically from the facts. Despite some financial difficulties, the casino was able to continue in business, and the work that the employees had been employed to perform had not ceased or substantially diminished. There was, therefore, no factual link between the dismissal itself and the assigned reason prescribed to it to ground the decision. Qualification for redundancy The existence of a bona fide redundancy situation is not the only determinative factor in receiving a redundancy benefit. The following are other important criteria that must also be met in this regard. Continuity of employment In order to qualify, each statute requires that workers are continuously employed for specific timeframes. This varies from a minimum starting point of one year in Antigua and Barbuda,137 the Bahamas,138 St. Kitts and Nevis,139 Guyana,140 and Grenada,141 to a high of five years in Belize.142 At the midpoint, two years’ unbroken service is needed in Jamaica,143 St. Vincent and the Grenadines,144 St. Lucia145 and Barbados,146 while three years is stipulated in Dominica.147 135 See TD 70 of 1988 Transport and Industrial Workers’ Union v Bata Trinidad and Tobago Limited (unreported) delivered March 30, 1994. 136 Antigua and Barbuda Civil Appeal No. 28 of 2001 (unreported) delivered April 3, 2003. 137 Labour Code C40. 138 Employment Act Section 26(1). 139 Protection of Employment Act Section 25(1). 140 Termination of Employment and Severance Pay Act Section 21(1). 141 Employment Act s 84(1). 142 Section 183(1) Labour Act; the provision specifies 5–10 years and over 10 years. 143 Section 5(1) ETRPA. 144 Protection of Employment Act Section 23(1). 145 Labour Code Section 160; note that part-time employees may also be eligible for a redundancy payment where he or she has been continuously employed for an aggregate of two years and he or she works for not less than three days of each week, and any week in which the employee is employed for 24 hours or more shall count in computing a period of employment for the purposes of severance pay (Section 165 Labour Code). 146 Severance Payments Act Section 17. 147 Protection of Employment Act Section 21. 190 Commonwealth Caribbean Employment and Labour Law Trinidad and Tobago148 operates a staggered requirement of more than one year but less than five years’ service in the first instance, and a different regime for continuous service for anytime thereafter. Legislation also provides guidance as to how this continuity is to be ascertained and the periods that count towards the computation of the time.149 The importance of this determination emanates from the common law principle that every fundamental change of terms results in a new contract. This could therefore work to the detriment of the worker if every absence, regardless of its nature, would break the constancy of the employment contract, thereby practically making it extremely difficult to establish a long-term employment relationship and access applicable benefits.150 In St. Vincent and the Grenadines151 the statute simply recognises that certain circumstances (such as a trade dispute, accident, sickness, injury or absence on medically certified maternity leave, an act of God, customary agreements with or condoned absences by the employer, or temporary suspensions and layoffs) do not constitute a break in employment.152 However, the St. Lucia Labour Code prescribes that a person’s continuous employment commences on the first day of work and ends on the date of termination,153 and includes circumstances similar to those in St. Vincent with some further extensions.154 There is also a rebuttable premise that, unless the contrary is shown, one’s employment with the same employer is continuous, whether or not they remain in the same post, position, department or branch.155 Provision is also made for periods of short-term contracts granted in succession, with less than 30-day intervals, to be counted for the purpose of calculating the continuous period of employment;156 but acceptance of severance pay, or of payment in lieu of notice, by an employee terminates continuity.157 However, much more complex legislative provisions are operational in Barbados158 and Jamaica159 having much the same effect. Specifically the laws set out the number of hours per week160 which should be construed as being a week to be counted for the purpose of calculating continuity. In Jamaica, if an employer re-engages the employee under a written agreement within two weeks after the end of his previous contract, that interval will count towards continuity for the purposes of redundancy.161 Thus, in Holiday Inn Sunspree Resorts v Dothlyn Pennicot162 the Jamaican Court of Appeal confirmed the decision of the resident magistrate in aggregating the periods of several six-month contracts broken by a period of two weeks’ paid vacation leave and an additional week in order 148 Retrenchment and Severance Benefits Act Section 18(3); workers did not work for more than one year in Trinidad and Tobago. See National Union of Government and Federated Workers v Universal Projects Ltd TD 265/03 (unreported) delivered May 29, 2005; see also TD 5 of 1999. 149 See Sweeney v J & S Henderson (Concessions) Ltd [1999] IRLR 306 – outlining the importance of statutory provisions in ascertaining continuity. 150 See full discussion of this concept in Honeyball, S. (2008) Textbook on Employment Law (Oxford University Press, 10th Ed.) Chapter 5, 98–108. 151 Section 24 Protection of Employment Act. 152 Similar provisions also exist in St. Kitts and Nevis Protection of Employment Act Section 10 and Guyana Termination of Employment and Severance Pay Act Section 4(2). 153 See also Guyana Termination of Employment and Severance Pay Act Section 4(1). 154 Labour Code Section 23(1); these include leave for serious family responsibility, awaiting determination of an unfair dismissal claim, temporary cessation of the work, whilst on jury service, public duty or national service, lock out, during the period of a strike (Section 23(6)). 155 Labour Code Section 23(2). 156 Labour Code Section 23(7). 157 Labour Code Section 23(8). 158 Second Schedule Severance Payments Act. 159 Regulations 3, 4 and 5 Employment (Termination and Redundancy Payments) Regulations. 160 Eighteen hours in Jamaica and twenty-one hours in Barbados. 161 Employment (Termination and Redundancy Payments) Regulations, reg 4(5). 162 RMCA Appeal No 14 of 2007 Jamaica CA (unreported) delivered December 18, 2009. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 191 to find that the claimant met the qualification requirements for a redundancy payment. The Appeal Court opined that the vacation leave was to be considered a part of the employment period; thus the additional week caused the factual situation to meet the two-week timeframe. The important point to note here is that the court will carefully examine whether the periods intervening between contracts are genuine or are generally designed only to create superficial breaks to evade payment of statutory benefits. Age disqualification Another qualification bar to be surmounted when claiming redundancy is that of age. In Barbados,163 persons below the age of sixteen or who are sixty-five years and older cannot make a claim; while, in Grenada,164 anyone over the age of sixty years or who has reached retirement age is ineligible for the benefit. Status of employee or a worker It should also be noted that only employees165 or workers166 (as defined by the requisite legislation) are eligible to make a claim if the other requirements are fulfilled. However, Trinidad and Tobago expressly excludes the following persons: independent contractors; workers who are serving a pre-determined probationary or qualifying period of employment; casual workers; seasonal workers who are not employed as part of the regular workforce for at least three consecutive seasons with the same employer for at least one hundred and twenty days in each season; and those employed on a fixed-term basis or to perform a specific task over an ‘estimated period of time’ where the conditions of employment are elucidated at the time of engagement.167 Jamaica operates a somewhat similar provision where, if an employee engaged on a fixed-term contract of two years or more so agrees in writing before the end of the term, the right to redundancy payment may be excluded.168 In that jurisdiction, government employees169 and those engaged by parish councils and municipalities are also expressly excluded from the law’s application. Barbados also excludes employment in public office and any Statutory Boards or pensionable employment. Additionally, the master or crew of fishing vessels who are paid by shares in the profit of the vessel, spouses of employers, partners in 163 Severance Payment Act s 4(1). 164 Employment Act s 84(4)(d). 165 Antigua and Barbuda Labour Code Section A5; Bahamas Employment Act Section 2; Barbados Severance Payments Act Section 2; Belize Section 2 Labour Act (‘employee’ and ‘worker’ are used interchangeably); Dominica Protection of Employment Act Section 2; Grenada Employment Act Section 2 (includes dependent contractor); Guyana Termination of Employment and Severance Pay Act Section 2 (includes dependent contractor); Jamaica Employment (Termination and Redundancy Payments) Act Section 2; St. Kitts and Nevis Protection of Employment Act Section 2; St Lucia Labour Code Section 2 (includes a managerial employee, a dependent contractor, an apprentice, a part-time employee, a casual worker, a homeworker, a temporary worker, a seasonal employee and a person who is remunerated by commission where that person is not an independent contractor); St. Vincent and the Grenadines Protection of Employment Act Section 2. 166 Trinidad and Tobago Retrenchment and Severance Benefits Act Section 2 – links the definition to that in the Industrial Relations Act. 167 Retrenchment and Severance Benefits Act Section 3(1) – estimated period of time refers to a period not exceeding the contract period, inclusive of extensions granted for completion, except where workers are transferred from project to project. 168 Employment (Termination and Redundancy Payments) Act Section 8(2). 169 But note this is in relation to established central government posts, not atypical positions in other government-related organisations such as executive agencies, statutory bodies and government-owned companies. 192 Commonwealth Caribbean Employment and Labour Law partnership agreements,170 independent contractors and domestic workers employed by other family members are not eligible to claim severance payments.171 What is dismissal for the purpose of redundancy? It is a condition precedent for a redundancy claim that the aggrieved worker must be dismissed by reason of redundancy.172 In Jamaica, these circumstances are clearly delineated by statute, as follows: (a) if the contract under which he is employed by the employer is terminated by the employer, either by notice or without notice; or (b) if under that contract he is employed for a fixed term and that term expires without being renewed under the same contract; or (c) if he is compelled, by reason of the employer’s conduct, to terminate that contract without notice.173 A termination with or without notice meets the criteria, but this must be clear and unequivocal.174 Thus, in Jamaica Broadcasting Corporation v Union of Clerical, Administrative and Supervisory Employees175 the IDT declined to rule on a request made by the claimant union on behalf of the employee (Mr Lue) – who was dissatisfied with the new position at which he was placed by virtue of a restructuring exercise – that he was made redundant. The tribunal reiterated that a prerequisite for eligibility for a redundancy payment was a dismissal, and there was no such action in the instant case. Similarly, in the Trinidadian case of George Ferguson v Southern Welding and General Contractors Limited176 the Industrial Court found that there was no dismissal but rather the worker had abandoned the job. The end of a fixed-term contract which is not renewed and a constructive dismissal are also deemed as dismissal for the purpose,177 as well as the death of the employer in particular circumstances.178 One aspect that has brought challenges in meeting the dismissal requirement is the concept of ‘voluntary redundancy’. Here, an employer, wishing to reduce staff on whatever premise, may seek workers to give up their jobs without going through the statutory procedure. In Oilfield Workers’ Trade Union v BP (formerly AMOCO) Oil Company of Trinidad179 the Industrial Court considered the matter, indicating that they were as ‘different as chalk and cheese’.180 The court further reiterated that, as the name implies, the worker is at liberty to elect whether 170 It would also appear that shareholders in a business who could not prove that they were bona fide employees will also be unable to access the benefits offered by the Act; see Mapp v Mapps Garment Factory Ltd [1988–89] 1 Caribbean Commercial Law Reports 179. 171 Severance Payments Act Section 14(1). 172 Murray v Foyle Meats Ltd [1999] ICR 287, [1999] IRLR 562; see also Sanders v Ernest Neale [1974] 3 All ER 327. 173 Section 5(5) Employment (Termination and Redundancy Payments) Act. 174 Morton Sundour Fabrics v Shaw [1966] 2 ITR 84; Bryan v Spence Barbados Magisterial Appeal No. 16 of 1997 (unreported) delivered June 11, 1998 [BB 1998 CA 10]. 175 IDT Award 10 of 1996 (unreported) delivered July 30, 1996 [JM 1996 IDT 9]; see also Paulette Richards v Trafalgar Travel Limited Claim No. 2010 HCV 00680 (unreported) delivered May 25, 2012. 176 RSBD 41 of 1987 (unreported) delivered June 16, 1995. 177 See discussion in Chapter 5 at p. 168; see also Jones v Sirl and Sons (Furnishers) Limited [1997] IRLR 493, where it was noted that the fact of leaving because alternative employment had been sourced does not take away from the fact of the employer’s conduct justifying the resignation of the employee and claiming constructive dismissal. 178 See discussion below at p. 172. 179 TD No. 125/99 (unreported) delivered December 20, 2000. 180 Ibid. at 9. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 193 or not to accept the call to leave their employment, often induced by enhanced redundancy packages. If they so choose, the ordinary protections afforded by the legislation (for example, the calculation of the benefits) are ordinarily not available, except where the worker is treated unfairly or unjustly or violates some principle of good industrial relations practice. It is simply a consensual contractual arrangement to be negotiated between the parties, and not a dismissal for the purposes of the legislation. Thus, any concerns related to the adequacy or enforceability of the agreed terms are matters for the conventional courts, to be decided on purely contractual principles.181 Redundancy procedure, consultation and governmental reporting requirements Based on the implications for the worker of termination by virtue of redundancy, it is unsurprising that statute has, in many instances, made provision for stipulated procedures to be followed in furtherance of this exercise. These may include stipulating how employers should actually go about implementing the action and requiring consultation with workers or their representative where applicable. In certain instances, legislation also makes a distinction between the procedures to be followed where a specific number of workers are being dismissed (collective dismissals), as opposed to when an individual employee is being considered. The redundant worker or position There is no statutory provision within the Commonwealth Caribbean indicating how the employer may choose the job or worker who should be the subject of redundancy. However, Taylor and Emir182 posit some general guidelines which have consistently been utilised in this regard in the UK and may provide some assistance to regional interests. The employer should identify those workers who are at risk, or who are most likely to be affected by the proposed redundancy, to create a pool of employees from which to choose. The employer must then show a clear objective rationale for deciding who is eventually selected for redundancy. In this regard, they further expound that three principles are usually used. Firstly, the ‘last in first out’ (LIFO) approach is where the workers who were most recently employed are the first to be considered in a redundancy exercise. This approach has been followed regularly in Trinidad and Tobago;183 it has the advantage of immediately alerting workers to their position in the queue for dismissal. From the employer perspective, it proves beneficial since, if low tenured workers are severed first, cost will be minimised as the longer the period in employment, the more severance payments will be necessary. However, this policy bears the disadvantage that a less productive older worker will be retained, while possibly a high-performing new recruit has to be severed. Since usually the objective of the exercise is to enhance the efficiency and output, this may not be the best alternative for the employer. 181 See Vaughan v National Water Commission Suit No. HCV 3034 of 2007 Jamaica SC (unreported) delivered November 14, 2008 [JM 2008 SC 120]; Collins v Air Jamaica Limited; Lyn v Air Jamaica Limited Suit No. C.L. C-203 of 1995; C.L. L-162 of 1994 Jamaica SC (unreported) delivered March 16, 2007; Clarke v Life of Jamaica Limited Suit No HCV 0850 of 2003 Jamaica SC (unreported) delivered July 22, 2005 [JM 2005 SC 70]. 182 Taylor, S. and Astra, E. (2006) Employment Law (1st Ed., Oxford University Press) p. 295. 183 See Oilfields Workers’ Trade Union v National Petroleum Marketing Company Ltd TD 43 of 2001 (unreported) delivered October 24, 2011, where the company was penalised because it failed to utilise the principle which was agreed in the collective labour agreement. 194 Commonwealth Caribbean Employment and Labour Law Secondly, there is the ‘points-based system’, which entails the taking account of a wide range of factors, placing a value on each, and scoring individual workers on these criteria, with those receiving the lowest aggregate score being dismissed. Some of the factors include attendance records, disciplinary records, performance or quality of work, skills and competencies, versatility or adaptability, qualifications, experience and length of service. In this way, the LIFO principle is not the sole determinative factor. However, employers must be very careful in using these criteria so as not to fall foul of any unfair dismissal or discrimination principles. Thirdly, there is the ‘selection-based system’, where employers look forward to the structure they are intending to implement at the end of the exercise, determine the function of the new positions, and use this as the basis for the selection criteria. Employees are then invited to apply for the jobs in the new dispensation, with those who lack the appropriate skill-sets or qualifications and those who are unsuccessful at interview being made redundant. This methodology will also be subject to the relevant principles relating to whether the employer acted fairly in all the circumstances of the exercise. It should, however, be noted that the approach to be taken is often embodied in Collective Labour Agreements;184 and, especially in jurisdictions where they are legally enforceable or where the terms are positively made a term of the individual employment contracts, these provisions will prevail.185 Giving notice Following the international guidelines, regional countries have mandated the giving of notice as part of the severance procedures. Arguably, Trinidad and Tobago operates one of the most complex notice systems in relation to retrenchment and redundancies. Section 4 of the Retrenchment and Severance Benefits Act specifies that, where five or more workers are being terminated, the employer must give a formal written notice to each individual worker, the recognised majority union (if any) and the Minister. The notice must state the names and classifications of the involved workers, their length of service and current wage rates, the reasons for the redundancy, the proposed date of termination, the criteria used in the selection of the workers to be retrenched, and any other relevant information. The section also makes provision for consolidation of a group of workers if (during period of notice to terminate given to less than five workers) others are also given notice. The fact that fewer than five workers are retrenched may obviate the need for the formal notice but not the payment of a severance benefit.186 The notice period should not be less than forty-five days,187 failing which the employee may be awarded damages in the amount of pay for the period.188 There may be an exception in the case of unforeseen circumstances when the maximum practicable notice should be given, but the burden of proof in this regard rests with the employer.189 The purpose of the notice is to alert the parties to the existence of circumstances which could lead to retrenchment; thus, once 184 In fact, s 17 of the Trinidad and Tobago Retrenchment and Severance Payments Act allows the parties by mutual consent to adopt a procedure other than that prescribed by the Act, with the only stipulations being that the period of notice to retrench is specified and the Minister be advised in writing of the provisions. 185 Oilfields Workers’ Trade Union v Schlumberger Trinidad Incorporated TD 131 of 1993 (unreported) delivered November 22, 1995. 186 Bindeo Ramdas and Mahadeo John v Wilfred Samlalsingh (Trading as Samlalsingh’s Sand and Quarry) RSBD No 19 and 20 of 1989 (unreported) delivered March 6, 1999. 187 Retrenchment and Severance Benefits Act Section 6. 188 Amalgamated Workers’ Union v Bhim Roopnarine (Trading as Bhim Roopnarine Service Station) TD 30 and 31 of 1995 (unreported) delivered July 25, 1996; Michael Saldenha v O’Connor Construction Company Limited (In Receivership) RSBD No 5 of 1986 (unreported) delivered July 10, 1987. 189 Retrenchment and Severance Benefits Act Section 7; see Diamondtex Style Limited v National Union of Government Federated Workers Civil Appeal No 59 of 2008 Trinidad and Tobago CA (unreported) delivered October 31, 2011. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 195 given, it does not need to be issued every time there are changes to the list of ‘retrenchees’.190 The employer cannot proceed with any retrenchment plans during the period of notice;191 however, it may still terminate during the period for a valid cause relating to the worker’s conduct or job performance.192 During the period of notice, the worker must be afforded time off to seek alternative employment, subject to the continued operational needs of the employer’s business.193 However, outside of this, the worker is also obliged to continue working during the period of notice unless the employer indicates otherwise.194 Most of the other countries simply use the statutory provisions which relate to notice generally as the yardstick for notice in the event of redundancy;195 however, the Bahamas specifically twins prescribed notice periods with the entitlement to redundancy.196 In Guyana, the employer is required to inform the recognised union (or, where there is none, the employees or their representatives) and the Chief Labour Officer as soon as possible, but in any event not less than one month in advance of proposed redundancies.197 A similar provision exists in St. Vincent and the Grenadines,198 Belize199 and St. Lucia.200 In Barbados, a series of cases have interpreted the provisions of Section 20 of the Severance Payments Act which sets out the minimum periods of notice to be given to severed employees. In June Clake v American Life Insurance Co201 the Court of Appeal determined that, on a matter of legal construction of the section and principle, because it stated that the notice should ‘not be less than four weeks’, the prescribed timeframes did not preclude providing a greater period of notice. Thus, based on the appellant’s twenty-five years of service, it was fair for the court to infer into the employment contract a reasonable notice period of five months. A similar position was taken in Sandra Agard v Caribbean Data Services Limited,202 where it was said that, when long service workers were terminated on grounds of redundancy, a reasonable period of notice could be imputed by the court. Consultations Another procedural requirement is the undertaking of consultations.203 The main purpose of this stipulation is to allow some time and opportunity for the parties to investigate any other alternatives to the drastic measure of termination. Thus, in Trinidad and Tobago the employer may enter consultation with the recognised majority union with a view to reducing, mitigating or totally averting the exercise, even before issuing the formal notice.204 The recognised union must respond to the employer within seven days of receipt of the notice and, if no alternative 190 Transport and Industrial Workers’ Union v National Maintenance Training and Security Company Limited TD 114 of 1992 (unreported) delivered December 11, 1995. 191 Retrenchment and Severance Benefits Act Section 14(1). 192 Retrenchment and Severance Benefits Act Section 14(2). 193 Retrenchment and Severance Benefits Act Section 16. 194 Retrenchment and Severance Benefits Act Section 15. 195 See Table 5, p. 138. 196 Employment Act Section 26(2). 197 Termination of Employment and Severance Pay Act Section 12(3)(a) – the following information must be provided: existence of redundancy situation as defined; reason for contemplated termination; number and categories of persons likely to be affected; period over which termination likely to be carried out; and other relevant matters. 198 Protection of Employment Act Section 12(3) – should also advise the Labour Commissioner of the consultations held with any trade unions representing the affected workers. 199 Labour Act Section 45(3). 200 Labour Code Section 145(3)(a). 201 (2002) 62 WIR 1. 202 Magisterial Appeal No 12 of 2000 Barbados CA (unreported) delivered October 3, 2003; see also Hoyte v The Transport Board Suit No. 665 of 1992 Barbados HC (unreported) delivered August 2, 2002. 203 This is contemplated by Article 13 of ILO Convention 158. 204 Retrenchment and Severance Benefits Act Section 5. 196 Commonwealth Caribbean Employment and Labour Law is found, the retrenchment may proceed.205 If, however, there are objections, the union may request further information, which must be provided within three days to facilitate further discussions.206 In the face of any disagreements, the parties are mandated to enter into discussions with a view to finding an acceptable solution to the issues,207 failing which the Minister may be requested to intervene.208 Should the Minister be unable to broker a settlement, the parties will be advised before the proposed date of the retrenchment. Conceivably, if the matter remains unresolved, it may become the subject of a trade dispute which could be addressed by the Industrial Court. The matter may also become an industrial relations offence where there is failure to consult.209 In Guyana, there is also a duty on the part of employers to consult with the recognised trade union (or, if none exists, the employee representative) as well as to consult with the Chief Labour Officer on possible measures that could avert or mitigate the redundancy210 on pain of criminal sanction.211 Similar provisions apply (without the criminal penalty) in Belize,212 while the St. Lucia213 and St. Kitts and Nevis legislation are in pari materia but simply require this consultation ‘as early as possible’. It is also to be noted that some countries214 effectively compel use of the procedure only when collective redundancy of a prescribed number is contemplated. The new Barbados Employment Rights Act215 also provides a statutory procedure for consultations with employees and their representative when redundancy of ten per cent or a ‘significant number’ of employees is being contemplated. The Act also stipulates a timeframe of six weeks to commence the consultations, and dictates that they must be concluded within a ‘reasonable time’. Once these prescriptions are followed, the employee’s right not to be unfairly dismissed will not be contravened. In Jamaica, by virtue of the provisions of the Labour Relations Code,216 employers are encouraged to consult with unions when redundancies are contemplated.217 Although this is not a mandatory provision, refusal to do so may prove costly for employers should the dismissal be challenged and heard by the Industrial Disputes Tribunal,218 as it could well be found to be unjustifiable. 205 Retrenchment and Severance Benefits Act Section 8. 206 Retrenchment and Severance Benefits Act Section 9; once information is received, the unions have three days within which to respond. 207 Retrenchment and Severance Benefits Act Section 10. 208 Retrenchment and Severance Benefits Act Section 11. 209 See TD 314 of 2004 Communication Workers’ Union v Maibrol Insurance Brokers (unreported) delivered February 16, 2007; Oilfields Workers’ Trade Union v Readymix (West Indies) Limited IRO 16 of 1992 (unreported) delivered June 29, 1993. 210 Termination of Employment and Severance Pay Act Section 12(3)(b). 211 Termination of Employment and Severance Pay Act Section 12(4). 212 Labour Act Section 45(4). 213 Labour Code Section 145(3)(b). 214 St. Vincent and the Grenadines – 10 persons; St. Kitts and Nevis – 10 or more persons or 10% of the workforce, whichever is greater; Trinidad and Tobago – 5 persons. 215 Section 31. 216 Paragraphs 11 and 19. 217 See North American Energy Services Limited v Union of Clerical, Administrative and Supervisory Employees IDT Dispute No. 3 of 2002 (unreported) delivered August 12, 2002; City of Kingston Co-operative Credit Union Limited v National Workers Union IDT Dispute No. 17 of 2009 (unreported) delivered July 6, 2010; Toyota Jamaica Limited v Union of Clerical, Administrative and Supervisory Employees IDT Dispute No. 11 of 2011 (unreported) delivered June 29, 2012. 218 Jamaica Flour Mills Limited v Industrial Disputes Tribunal and National Workers Union IDT Dispute No. 22/99 decided October 9, 2000; Full Court Suit No. M105 of 2000 (unreported) delivered December 17, 2001; Court of Appeal SCCA 7 of 2002 (unreported) delivered June 11, 2003; Privy Council Appeal No. 69 of 2003 (unreported) delivered on March 23, 2003. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 197 Government reporting requirement No Commonwealth Caribbean jurisdiction requires governmental approval for undertaking redundancies,219 as it is accepted that management does possess some prerogative in deciding how to efficiently operate their business within the stipulated legal guidelines. However, in some countries the fact of the impending action must be reported to the appropriate functionary, not only for statistical purposes but, where necessary, to intervene and assist the stakeholders to find alternatives to the proposals. This is in line with the prescriptions of ILO Convention 158.220 Thus, in Trinidad and Tobago,221 Jamaica,222 Belize,223 St. Lucia224 and St. Kitts and Nevis,225 employers must advise the Minister or the Labour Commissioner of the intention to undertake a redundancy exercise, giving prescribed information for that purpose. In Jamaica, failure to report also constitutes a criminal offence.226 Exception and exclusions from redundancy The instances outlined below are circumstances where an otherwise eligible and entitled worker may be unable to access the benefits offered by redundancy. It goes without saying that a worker who voluntarily resigns would not be eligible to receive a redundancy payment,227 except where statutes provide otherwise. It should, however, be noted that, in Barbados, a worker may still be able to receive the whole or part of the severance payment, notwithstanding the exclusionary provisions, if the Severance Payments Tribunal decides that it is just and equitable to do so, based on the circumstances of the case.228 Unreasonable refusal of alternative employment Under the common law the right to a redundancy payment is lost if the employer offers alternative employment to the affected employee which is no less beneficial than his previous employment and he unreasonably refuses the offer. Many countries229 in the Commonwealth Caribbean have codified this principle in legislation and, for the most part, it also applies to associate companies, subsidiaries and (in cases of dissolution of partnerships) a new job offer with any of the former partners. The general principle as enunciated is relatively simply stated 219 Caribbean Digest of Legislation on Termination of Employment (ILO Subregional Office for the Caribbean Publication 2008 Port of Spain, Trinidad and Tobago) p. 113. 220 Article 14. 221 Section 8(2). 222 Employment (Termination and Redundancy Payments) Regulations, reg 11. 223 Labour Act Section 45(4). 224 Labour Code Section 145(3)(c). 225 Protection of Employment Act Section7(3). 226 ETRP Regulations, reg 11(3) – maximum fine is $250,000. 227 This position has been legislated in St. Lucia Labour Code Section 162(1)(g); Jamaica (Employment (Termination and Redundancy Payments) Act Section 6(1)(a). 228 Severance Payments Act Section 8(3). 229 Dominica Protection of Employment Act Section 25; Guyana Termination of Employment and Severance Pay Act Section 21(4); Barbados Severance Payments Act Section 4 ((3) and (4)); St Lucia Labour Code Section 162(1)(b) and (d); St. Vincent Protection of Employment Act Section 26; St. Kitts Protection of Employment Act Section 25(3); Trinidad and Tobago Retrenchment and Severance Benefits Act Section 21; Jamaica Employment (Termination and Redundancy Payments) Act Section 6(3); Grenada Employment Act Section 84(4). 198 Commonwealth Caribbean Employment and Labour Law in the noted countries,230 with emphasis on the offer being made commencing immediately on the termination of the previous employment or within a short period thereafter231 and its suitability. Jamaica arguably possesses the most complex provision in this regard. It makes a distinction between renewal or re-engagement of the contract where the terms do not differ from the previous employment, on the one hand, and the position where the offer differs wholly or in part as to the capacity and the place where the worker is employed but the offer is a ‘suitable’ alternative. It goes further to delineate any new place of employment which is not more than ten miles away from the previous employment as a yardstick for measuring the suitability of the alternative employment. The question which will of necessity arise is what amounts to ‘suitable alternative employment’ and what actions will constitute the employee’s ‘unreasonable refusal’. In making this determination, the UK courts and tribunals have taken a subjective approach. In Taylor v Kent County Council,232 Lord Parker CJ stated that suitability should be assessed by reference to the individual concerned and, in essence, it means something substantially equivalent to the employment which has ceased.233 It is therefore difficult to predict with any degree of certainty what can be adjudged suitable job alternatives but ‘… in general terms a drop in status234 or salary,235 different hours of work,236 a different place of employment, an offer to perform a different job than the one which the employee is qualified to do, an offer that constitutes a health risk could amount to an offer of unsuitable employment’.237 As it relates to the unreasonableness of the refusal, factors which have been taken into account in this determination are personal issues such as health and family obligations, whether the offer was made late in the day and the requirement for employee’s acceptance by a particular date,238 issues connected with travel to and from new worksites, reduction in wages, and whether the offer is made to continue working in a declining industry. It should also be noted that, although the questions of suitability and unreasonableness are separate issues, they tend to be considered together, especially since the onus of proof in both cases rests on the employer.239 Regional courts and tribunals have also had to grapple with these issues. In Darlington v Burley et al240 the Barbadian Court of Appeal was asked to examine whether a worker who was a supervisor was entitled to a severance payment when he was offered re-engagement as a tractor operator when his place of employment was purchased by new owners. The Severance Payments Tribunal refused his claim, taking the view that he was not dismissed. The Court of Appeal remitted the matter to be reviewed, as it held that the tribunal did not properly examine whether the alternative employment was suitable and thereafter would have been in a better position to conclude whether the worker’s refusal of the offer was unreasonable. As regards the reasonableness of refusal of alternative employment, in Abbott v Liat (1974) Limited241 the Court of Appeal of the Organization of Eastern Caribbean States (OECS), upon reviewing a decision of the Antiguan Industrial Court, concluded that a worker who was transferred from one post to another by virtue of internal restructuring of the airline had unreasonably refused 230 For example, the Dominican provision states ‘an employee shall not be entitled to receive a redundancy benefit from his employer ... where on or before the date on which the employment is terminated by the employer ... [he] makes an offer of suitable alternative employment to the employee and ... [he] unreasonably refuses to accept the offer’. 231 St. Lucia and Barbados legislation stipulates four weeks. 232 [1969] 2 QB 560; see also Cambridge & District Co-operative Society Limited v Ruse [1993] IRLR 156. 233 See Hindes v Supersine Ltd [1979] ICR 517. 234 Standard Telephone and Cables Limited v Yates [1981] IRLR 21. 235 McNeil v Vickers Ltd [1966] ITR 180. 236 Morrison and Poole v Cramic Engineering [1966] ITR 404. 237 Carby Hall, J. (2000) ‘Redundancy’ 42 Managerial Law 1–127 at p. 33. 238 Thomas Wragg & Sons Ltd v Wood [1976] ICR 313. 239 Jones v Aston Cabinets Co Ltd [1973] ICR 292. 240 Civil Appeal No 2 of 1999 Barbados CA (unreported) delivered June 13, 2000 [BB 2000 CA 35]. 241 Civil Appeal No 14 of 1993 OECS CA (unreported) delivered February 6, 1995 [AG 1995 CA 4]. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 199 the change. Since there was no diminution in salary or grade, and only minimal changes in the terms and conditions of the employment, the alternative position was suitable. In the Trinidadian case of Managers and Supervisors Association of Trinidad and Tobago v Trinidad and Tobago Insurance Company242 the Industrial Court accepted that the employer was justified in dismissing a worker who unreasonably refused to accept the suitable alternative position which would have ensured no breach in his service, unless he was given a severance payment. The preceding cases can be contrasted with Johnrose v Dominica Broadcasting Corporation et al243 and Alleyne, Authur and Hunte Ltd v Griffith and Another,244 where the workers’ refusal of the alternative employment was held not to be unreasonable as the alternative jobs were not suitable. In the former case, the applicant formerly held the post of programme director and was offered the position of sales/marketing manager. The court was of the view that the job being offered was intrinsically different from his previous engagement and the salary was less, notwithstanding the fact that, by his own efforts, he could have increased it. Additionally, the nature of the job and the employee’s unfamiliarity with it would undeniably affect his ability to do well at it, hence his refusal was held not to be unreasonable. In the latter case, the workers were being offered new positions with the employer’s parent company without loss of pay and status; however, they would now be required to work occasionally on Saturdays. One of the workers had two small children who would normally be left at a nursery whilst she was at work, but that facility did not open on Saturdays, so she had no childcare assistance on the days she would now be required to work. The other operated a catering business on the weekends, and this new requirement would adversely affect this enterprise. The Barbados Court of Appeal, in finding that the offers were unsuitable and the refusal of the employees to accept them was not unreasonable, also found that the employer, in attempting to unilaterally change the workers’ contractual terms, had in effect repudiated the contract, and the employees could regard themselves as being dismissed and they were eligible to receive redundancy entitlements. Change of ownership or transfer of the business The common law position, as aptly stated in Noakes v Doncaster Amalgamated Colliers Ltd,245 is that the employee cannot be made to change his employer without his consent. This means that an employee cannot normally pursue a redundancy claim against any new entity which takes over the business of the former employer, since he does not automatically have a contract with the new entity. Where there is no collective bargaining agreement or statutory provision regarding the issue of redundancy (and, consequently, the issue of business transfers), dismissals in this context will amount to a wrongful dismissal, with the only remedy being damages payable by the previous employer.246 Statutory provisions in some regional countries247 now provide that, 242 TD 11of 1992 (unreported) delivered July 29, 1994 [TT 1994 IC 54]. 243 Suit No 118 of 1996 Dominica HC (unreported) delivered July 31, 1996 [DM 1998 HC 18]. 244 (1992) 42 WIR 53. 245 [1940] AC 1014, [1940] 3 All ER 543. 246 See Kowla et al. v Versailles and Schoon Ord Ltd Civil Appeal No. 24 of 1989 Guyana CA (unreported) delivered February 19, 1992 [GY 1992 CA 3]; in response to the court’s concern that Guyana at that time had no redundancy legislation ‘despite the remarkable progress in the nature and direction of social legislation since independence’, the Guyana Termination of Employment and Severance Payments Act was enacted in1997. 247 Such as Barbados Severance Payments Act Section 9; Jamaica Employment (Termination and Redundancy Payments) Act Section 7; St. Vincent and the Grenadines Protection of Employment Act Sections 26 and 29; Antigua and Barbuda Labour Code Section C44 – this section specifically indicates that the new employment must be offered without a break in service and the offer must relate to the same employment; Trinidad and Tobago Retrenchment and Severance Payments Act Section 21 – however, it is not mandatory that the severance payment will be withheld and there must be no break in service between the new and old positions. 200 Commonwealth Caribbean Employment and Labour Law if the new employer either offers to renew the employee’s contract in similar terms to his previous employment or re-engages him in a suitable alternative position, the employee could be unable to claim a redundancy payment if the new position is unreasonably refused.248 However, a short-term probationary engagement offered by the new employer would not satisfy the test for suitable alternative employment even if the worker eventually gains permanent employment with the new entity in the same or higher capacity;249 the alternative position must be unequivocally offered before, at or shortly after the takeover. This is the case only where the new entity is transferred as a ‘going concern’, basically carrying on the same business which the former employer was operating.250 It is also the usual provision that, should the worker subsequently become redundant in the extended employment, their years of service are to be conflated and used in the calculation of the subsequent redundancy entitlement. Where only the assets of the undertaking are transferred, and the new proprietors are engaged in a different concern using the same assets, this position would not subsist. It should also be noted that, as in the case of Sundry Workers v Chevron West Indies Limited,251 when the shares of the employer company change hands to a successor, the business continues to operate in virtually the same manner, and no employees are dismissed by reason of redundancy, there is continuity of employment and no redundancy payments are applicable. If, however, the sale is not bona fide in nature but is designed to enable an employer to avoid his obligations to his employees under legislation, some countries prescribe that the workers will not be terminated, the person or entity acquiring that enterprise will be bound to undertake any payments due to workers, and there will be continuity of employment.252 St. Lucia,253 however, has adopted a unique provision which in effect equates to the legitimisation of a ‘trial period’254 with the new successor entity, whereby the worker may opt to have the employment contract terminated and receive their severance pay within four weeks of the takeover by the new management. In Trinidad and Tobago, this concept of successorship255 was explored in Steel Workers Union of Trinidad and Tobago v Iron and Steel Company of Trinidad and Tobago and Caribbean Ispat Limited,256 with the Industrial Court finding that the employees were not eligible for a severance payment, since they had been absorbed into the successor company without a break in service as an alternative to being retrenched.257 It should, however, be noted that, once the successor company is determined, should a retrenchment occur subsequently, they would be liable to 248 See Paulette Richards v Trafalgar Travel Limited Claim No. 2010 HCV 00680 (unreported) delivered May 25, 2012. 249 See Downie v Hill’s Supermarket (Oistins) Limited (1978) 30 WIR 69. 250 See Silver Sands Resorts Ltd v Ryan Suit No 785 of 1977 Barbados HC (unreported) delivered January 4, 1980 [BB 1980 HC 2]. 251 Reference No 2 of 2011 Antigua and Barbuda Industrial Court (unreported) delivered May 26, 2011. 252 For example, Dominica Protection of Employment Act Section 12; St. Lucia Labour Code Section 147. 253 Labour Code Section 149. 254 See Shields Furniture Ltd v Goff [1973] ICR 187, where the court held that, at common law, the employees were entitled to a reasonable time to see if they accepted a variation of employment occasioned by a transfer of workers to a new department because of lack of work in their substantive jobs. 255 See Section 19 Industrial Relations Act Trinidad and Tobago and explanation of the concept given in Shipping Association of Trinidad and Tobago AND Seamen and Waterfront Workers’ Trade Union TD 20 of 1969 (unreported) delivered June 20, 1975, which explains the principles of successorship as ‘a new employer who carries on substantially the same operation as previous employer, in substantially the same way with substantially the same employees ... employer has the benefit of the expertise and experience acquired by workers’ previous employment’. 256 TD 100 of 1990 (unreported) delivered July 22, 1991. 257 Trinidad and Tobago Retrenchment and Severance Payments Act Section 19 – prescribes that successor includes an assignee, associate company and subsidiary company. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 201 make the severance payments thereafter, taking into consideration the employee’s years of service with the previous employer.258 Retirement or alternative terminal benefits in particular circumstances Some regional jurisdictions259 stipulate that workers who attain a specified age – or are retired in circumstances where they are entitled to a pension, superannuation or other retirement benefit under any scheme, arrangement or provision – are not entitled to receive a redundancy or severance payment. However, the St. Lucia provisions exclude the payment where the worker ‘in agreement with his or her employer, or pursuant to the terms of a collective agreement or the contract of employment, chooses to retire from employment’.260 The Bahamian legislation261 has a slight twist, in that it provides – in the event that the worker is entitled to a gratuity or non-contributory pension as well as a redundancy – that he is allowed to elect the one which he prefers. In St. Vincent and the Grenadines,262 if the gratuity or pension is less favourable than the severance payment, the worker may apply to the Labour Commissioner who, after enquiry, may fix an amount as a severance payment so that the worker is not negatively affected. The legislation in Trinidad and Tobago disentitles workers from receiving redundancy payments if they are eligible to receive more favourable benefits than those provided by Act,263 but otherwise makes no provision for the payment of benefits on the retirement of a worker. Thus, in National Union of Government and Federated Workers v Y De Lima and Company264 the Industrial Court concluded that, in the absence of any collective agreement, the worker was not entitled to a severance payment on his termination by reason of retirement. It is, however, noteworthy that Belize operates a very generous system, whereby workers will still be entitled to the severance payments notwithstanding their eligibility for a retirement benefit.265 Misconduct by employee or dismissal for just cause Carby Hall expounds on this ground for exception to a redundancy payment by stating that ‘although [a worker] may be prima facie redundant the employee would not be eligible to obtain a redundancy payment if the employer is entitled to terminate the contract of employment because of the employee’s gross misconduct’.266 This proscription has been adopted by legislation in Jamaica,267 St. Vincent and the Grenadines,268 Guyana269 and the British Virgin Islands.270 The proposition is illustrated in the Trinidadian case of Transport and Industrial Workers Union v 258 Communication Workers’ Union v Omni Foods Limited (Hong Chow Kong Chow Caterers Ltd) RSBD 8 of 1991 (unreported) delivered June 29, 1993. 259 Jamaica Employment (Termination and Redundancy Payments) Act Section 6(1)(b) limits this to National Insurance Scheme pensions; Barbados Severance Payments Act Section 4(1). 260 Labour Code Section 162(1)(g). 261 Employment Act Section 27(4). 262 Protection of Employment Act Section 33. 263 Retrenchment and Severance Payments Act Section 18(6); see also Rudder v International Aeradio (Caribbean) Limited Civil Appeal No 1515 of 1984 Trinidad and Tobago CA (unreported) delivered April 7, 1989 [TT 1989 CA 16]. 264 TD 114 of 1991 (unreported) delivered May 24, 1993 [TT 1993 IC 21]. 265 Labour Act Section 194. 266 Carby Hall, J. (2000) ‘Redundancy’ 42 Managerial Law 1–127 at 52. 267 Employment (Termination and Redundancy Payments) Act Section 6(2). 268 Protection of Employment Act Section 23(3). 269 Termination of Employment and Severance Pay Act Section 21(4) – the section also contemplates dismissal during the probationary period, and where there is no gross misconduct but the worker is dismissed for general misconduct after the employer follows the statutory procedure set out in s 11 of the Act. 270 Labour Code Section 109(3). 202 Commonwealth Caribbean Employment and Labour Law Public Transport Corporation,271 where the worker was tried and convicted in the magistrates’ court for stealing company property. Prior to the conviction, the worker was placed on suspension and thereafter the company decided to terminate him; however, in the same period there was a retrenchment exercise, and the worker’s name was inadvertently included in the retrenchment notice. The Industrial Court, in dismissing the employee’s claim for redundancy payment, ruled that the worker (having been found guilty of misconduct) was effectively dismissed and was not to be accorded a severance benefit, as it was clear that his name was erroneously placed on the retrenchment list. In Barbados,272 the legislative provision is extensive and allows the employer to dismiss the worker without notice, with shorter notice than the employee would otherwise be entitled to, or with full notice accompanied by a written notice stating that they were entitled to dismiss without notice in order to benefit from the exclusionary provision. The Act also specifically contemplates the position of the worker when involved in industrial action which would have clearly constituted misconduct. Section 8 of the Severance Payments Act protects such a worker from being disentitled in those circumstances.273 However, in St. Lucia, it is specifically provided that the worker will only be excluded from receiving the redundancy payment if he is fairly dismissed for serious misconduct, or misconduct and fundamental breach of the employment contract. Interestingly, also no payment will be available to a worker who is fairly dismissed for lack or qualification or skills if he had misrepresented himself to the employer in the first instance.274 Lay off and short time working In a bid to stave off outright redundancy, many businesses have on occasion opted to rely on lay-offs or short time working as a stop gap measure, with the hope that they may be able to rationalise and eventually continue their operations. Being ‘laid off’ is a situation where the employer provides no work for its employees, even though they are available to undertake their duties. Instances where lay-off is utilised include where there is breakdown of vital equipment or lack of essential supplies required for the business’s processes, and work is temporarily halted to address these issues.275 Short time working relates to the unilateral reduction of employees’ normal work hours (and commensurately their pay) by the employer in response to a variety of factors such as lack of orders, recession, or customary production breaks. At common law, there is no general right provided to employers to lay off employees276 or put them on short time,277 and this will amount to a repudiatory breach which can be construed as dismissal.278 It may, however, be an accepted exception to redundancy if there is an express or implied 271 TD 133 of 1991 (unreported) delivered June 6, 1991 [TT 1991 IC 45]. 272 Severance Payments Act Section 4(2). 273 See also Simmons v Hoover Ltd [1977] 1 QB 284 which, when interpreting the analogous position in the UK, concluded that the protection only extended to workers who took strike action after redundancy notice had been given. It is arguable that this would also be the case in Barbados, based on the wording of the section. 274 Labour Code Section 162(1)(a). 275 See Everton Samuda v Harry Prendergast RMCA Appeal No. 27 of 1984 Jamaica CA (unreported) delivered January 25, 1985, where this view was posited. 276 Hanley v Pease & Partners Ltd [1915] 1 KB 698; Devonald v Rosser & Sons [1906] 2 KB 728; this applies even if the employee had agreed to this on a previous occasion: see Waine v R Oliver (Plant Hire) Ltd [1977] IRLR 434. 277 Miller v Hanworthy Engineering Ltd [1986] IRLR 461. 278 Jewell v Neptune Concrete Ltd [1975] IRLR 147. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 203 contractual term or custom and practice to that effect,279 although this must be for a reasonable time.280 In the Commonwealth Caribbean, this concept has been codified in many employment law statutes,281 thereby implementing appropriate safeguards for workers. Indeed, Chaudhary and Castagne posit that the ‘… purpose of these [legislative provisions] is to prevent any attempt by the employer to evade a severance payment by laying off an employee or by putting him on short time of an indefinite period in the hope that the employee will eventually depart of his own free will’.282 It should, however, be noted that Trinidad and Tobago has not legislated a lay-off regime and relies on the common law,283 so that indefinite lay-off is considered as termination of employment, and such temporary stoppage of employment must be reasonable to be otherwise sustainable.284 In such cases, an employer has a duty to inform the workers of the date they should resume employment.285 If the employers and employees (through their representative bodies) have contemplated the use of lay-offs or short time working in employment contracts or collective labour agreements, these terms may also become applicable where workers are temporarily terminated.286 Barbados arguably operates the most complex lay-off and short time legislation. Section 18(1) of the Severance Payments Act defines lay-off as a situation where the employer does not provide work of a particular kind for which the employee is engaged, resulting in him not being remunerated for that week.287 On the other hand, short time occurs when the employee receives less than half a week’s pay because of a diminution in the work of a particular kind provided by the employer during the particular timeframe.288 Where the worker is laid off or kept on short time for thirteen or more consecutive weeks (or where, in a twenty-six-week period, he is off work for twelve weeks within a series of sixteen weeks), he may within four weeks of the relevant date serve the employer in writing with a notice of intention to claim a 279 Browning v Crumlin Valley Collieries Ltd [1926] 1 KB 522. 280 A Dakari & Co Ltd v Tiffen [1981] IRLR 57. 281 St. Vincent and the Grenadines Protection of Employment Act Section 27; St. Lucia Labour Code Section 148; Jamaica Employment (Termination and Redundancy Payments) Act Section 5A; Barbados Severance Payments Act Sections 6, 7 and 18; Antigua and Barbuda Labour Code Section C42; St. Kitts and Nevis Protection of Employment Act Sections 27 and 28; Dominica Protection of Employment Act Section 24; Guyana Termination of Employment and Severance Pay Act Section 14. 282 Chaudhary, R. and Castagne, R.M. (1979) Aspects of Caribbean Labour Relations Law (Coles Printery, Barbados) at 155. 283 See All Trinidad General Workers’ Trade Union v Jesse’s Court Limited TD 150 of 2009 (unreported) delivered August 3, 2011, where the Industrial Court found as a matter of fact that the employee was not dismissed but was temporarily laid off pending the reopening of the workplace which was closed for renovations. 284 See Dive Masters Caribbean Limited v Seamen and Waterfront Workers’ Trade Union TD 166 of 2000 (unreported) delivered October 15, 2001 – here the Industrial Court held that the longest possible time to remain without work was three months. 285 See National Union of Government and Federated Workers v Grill King TD 209 of 2004 (unreported) delivered December 12, 2005; see Furness Limestone Products Limited v Transport and Industrial Workers Union TD 144 of 1982 (unreported) delivered April 22, 1985. 286 See All Trinidad Sugar and General Workers’ Trade Union v Carib International Company Limited TD 42 of 1993 (unreported) delivered February 29, 1996 [TT 1996 IC 8] – relying on Section 47(2) of the Industrial Relations Act regarding the enforceability of collective agreements. 287 See Frank Ifill v George Rogers Barbados Redundancy Tribunal case No. 90 of 1976 (unreported), cited in Chaudhary, R. and Castagne, R.M. (1979) Aspects of Caribbean Labour Relations Law (Coles Printery, Barbados) at 155, where the tribunal ruled the employee was not laid off because there was no work of the specific kind available for him, hence he was actually made redundant. 288 Section 18(2) Severance Payments Act; see also Dennis Grannum v Singer Sewing Machine Company Barbados Redundancy Tribunal case No. 63 of 1976 (unreported), cited in Chaudhary, R. and Castagne, R.M. (1979) Aspects of Caribbean Labour Relations Law (Coles Printery, Barbados) at 155 – where the tribunal found that, because of the close proximity in time between the worker’s dismissal and the company’s closure, the work was diminishing and thus fell within the meaning of ‘short time’. 204 Commonwealth Caribbean Employment and Labour Law severance payment.289 The relevant date for this purpose is the last date on which the consecutive weeks come to an end.290 Thus, in Conliffe Clifton v Edghill Associates Ltd291 the decision of the Redundancy Tribunal that the claimant was not entitled to a severance payment was reversed because of a misinterpretation of the statute. The High Court explained that thirteen weeks ‘or more’ could be construed to mean the last date of continuous lay-off being more than thirteen weeks but must be within the four weeks immediately following that period as prescribed by the Act.292 The worker must also give the employer one week’s notice or the minimum notice period required by his contract;293 but if he is dismissed by the employer during this period, the normal rules of dismissal apply.294 The worker will not be entitled to a severance payment, however, if he can reasonably expect to be recalled by the employer for another twenty-six weeks without being placed on short time or lay-off;295 but if, during this period, he is subjected to these actions, the employer’s defence will fail.296 The employer may, within seven days of receiving the notice, resist the claim by lodging a counter notice contesting any liability to pay the claim;297 and, if he does not withdraw it, the matter will be decided by the Severance Payments Tribunal.298 It is to be noted, however, that, without prejudice to the abovementioned provisions,299 the Barbadian Employment Rights Act of 2012 provides that employees now have the right not to be laid off or placed on short time except where there is a contractual agreement to the contrary.300 Where the employer so proposes, it must be in conformity with the provisions which speak to temporary cessation or intention to carry on business in the place that the worker is employed, or requirements of the business for the employee to undertake work of a particular kind, or at the place where he was employed has temporarily ceased, diminished or is expected to do so.301 Additionally, the employer must carry out consultations302 and supply the recognised trade 289 Section 6(1) Severance Payments Act; no account will be taken of periods which involve strikes and lockouts (section 7(3) Severance Payments Act). 290 See Section 7(2) Severance Payments Act; see also Amberson Bourne et al. v Ian Niblock and Co Ltd Redundancy Tribunal cases No. 115-116 & 118-119 of 1976 (unreported), cited in Chaudhary, R. and Castagne, R.M. (1979) Aspects of Caribbean Labour Relations Law (Coles Printery, Barbados) at 156, where a claim made two years after the relevant date was denied. 291 Suit No 356 of 1989 (unreported) delivered March 5, 1990 [BB 1990 HC 14]; the court also opined that the employer may also take other steps to protect his interest, such as lodge a counter notice. 292 Section 6(4) Severance Payments Act. 293 Section 6(3) and (3A); see Weekes v Clarence Johnson Construction Co (Barbados) Limited Suit No 613 of 1980 (unreported) delivered July 13, 1981 [BB 1981 HC 47], where the High Court reversed the Redundancy Tribunal’s award in finding that the statutory notice was in fact given, hence he was entitled to the severance payment in respect of his years of service. 294 Section 6(3)(b) Severance Payments Act. 295 Section 6(4) Severance Payments Act. 296 Section 7(1) Severance Payments Act. 297 Section 6(5) Severance Payments Act; See Cynthia Wiltshire v Allied Metal Ltd Redundancy Tribunal cases No. 67 of 1977 (unreported), cited in Chaudhary, R. and Castagne, R.M. (1979) Aspects of Caribbean Labour Relations Law (Coles Printery, Barbados) at 157, where the employer’s attempts to resist the notice were found to be not only out of time but also unclear in relation to the statutory requirements. 298 Section 7(4) Severance Payments Act. 299 Section 38(9) Employment Rights Act. 300 Section 38(1) Employment Rights Act. 301 Section 38(4) Employment Rights Act. 302 Section 38(7) Employment Rights Act – they shall commence not later than 6 weeks before the affected employees are laid off or placed on short time and shall be completed within a reasonable time; they shall address the proposed method of selecting employees subject to the action, the proposed method of carrying out the action with due regard for agreed procedures (including time period for the lay-off or short time), and measures that the employer might be able to take to find alternative employment and to mitigate adverse effects. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 205 unions and the Chief Labour Officer with a written statement of the facts303 which require the taking of such action.304 The circumstances of lay-off305 and short time306 are in pari materia to the Severance Payments Act definition. The remedy available to an aggrieved worker is a complaint to the Employment Rights Tribunal, which can make a declaration that there was a breach of the legislation in appropriate cases and order the employer to pay a sum that is fair and just in the circumstances.307 Arguably, therefore, the employee who is placed on short time or lay-off now has two routes to redress: he can claim a severance payment under the Severance Payment Act; and he can receive a ‘fair and just’ sum in the discretion of the Employment Rights Tribunal. It remains to be seen how the two tribunals will interface in relation to these now concurrent pecuniary benefits available to aggrieved employees in particular cases. The other jurisdictions (though not as prescriptive as Barbados) possess various similarities; thus, there is a set timeframe for continuous lay-off which varies from a low of six weeks in Dominica, Guyana, St. Vincent and the Grenadines, with a midpoint of twelve weeks (three months) in Antigua,308 St. Lucia and St. Kitts and Nevis, to a high of one hundred and twenty days (four months) in Jamaica. In St. Lucia and Antigua and Barbuda, once the time has expired without the employee being recalled to work, they are automatically deemed to be redundant and the statutory provisions in that regard apply. However, in Dominica, St. Vincent and the Grenadines and St. Kitts and Nevis the statute places the onus on the employee to approach the employer in the face of lay-offs and request to be made redundant. When this occurs, the employer can then make a counter-offer within a stipulated period,309 which should provide the employee with work in substantially similar terms for a minimum of thirteen weeks without any further lay-offs, failing which a redundancy benefit is payable. It should be noted that, in Guyana, if the employer keeps the employee on lay-off for more than the stipulated period, he is guilty of a criminal offence.310 The Jamaican provisions require the employee to give notice of the request to be treated as being made redundant to the employer between fourteen days after the stipulated timeframe but not more than sixty days thereafter. In Western Cement Company Limited v Bustamante Industrial Trade Union311 the Industrial Disputes Tribunal, in finding that the employees were eligible to be paid a redundancy benefit because their employment had been implicitly terminated by virtue of lay-off exceeding one hundred and twenty days, also accepted that the recognised union were empowered to make the written request to the employers on behalf of the workers. The Jamaican Court of Appeal in Economy Hotels Limited T/A Hotel Montego v Doreen Harding312 has also accepted that a long-term indefinite lay-off, with an unsubstantiated allegation of misconduct, can allow the provisions of the Employment (Termination and Redundancy Payments) Act to be invoked, allowing the claimant to elect to be regarded as being made redundant. 303 Section 38(6) Employment Rights Act – the information referred to in subsection (4) and outline the number and categories of affected employees, proposed period of lay-off or short time and any other workers who will be affected by the facts. 304 Section 38(5) Employment Rights Act. 305 Section 38(2) Employment Rights Act. 306 Section 38(3) Employment Rights Act. 307 Section 39(1) and (2) Employment Rights Act; claim must be made within three months of the start of the lay-off or short time, or within such other time if the Tribunal is satisfied it was not reasonably practicable to do so during the stipulated time (Section 39(3) Employment Rights Act). 308 Note that, where a specific date for recall from temporary lay-off is more than six months in the future, severance payment is payable on the date of termination (Section C42(2)(a) Antigua and Barbuda Labour Code). 309 Seven days in Dominica, 12 weeks in St. Kitts, and seven weeks in St. Vincent and the Grenadines. 310 Guyana Termination of Employment and Severance Pay Act Section 14(3). 311 ITD Award No. 4 of 2003 (unreported) delivered May 30, 2003. 312 (1997) 34 JLR 213. 206 Commonwealth Caribbean Employment and Labour Law Death of the employer and insolvency Statutory provisions are sometimes specifically made to address the issues which arise upon the death of an employer if the business ceases to operate, or where the business is liquidated by bankruptcy or receivership. Death of the employer As it relates to the death of the employer, the Jamaican legislation313 views this as one manner in which there is a dismissal for the purposes of redundancy. However, where the personal representative renews the contract, there is no redundancy once this takes effect within six months of the employer’s death. The personal representatives may also offer alternative employment. Similar provisions exist in Barbados.314 In St. Lucia,315 when the employer’s personal or legal position forms the basis of the contract of employment, the death of the employer causes the termination of the contract of employment one month from the date of his death, unless the employment is otherwise determined. In this case, claims for termination benefits are to have priority over all other debts of the deceased employer.316 Insolvency Trinidad and Tobago provides a unique perspective of insolvency/liquidation by virtue of the provisions of the Retrenchment and Severance Benefits Act. As aptly stated by Gilkes,317 ‘… an employer is not required to pay severance to his workers if he is severing all of them owing to the fact that his business is being closed down or wound up’. This position was illustrated in Commercial Finance Co Ltd (In Liquidation) v Indira Ramsingh-Mahabir,318 where the worker sought to claim severance benefits after being dismissed when her employer was placed into compulsory liquidation by the banking regulatory authority in the twin island republic. At first instance at the Industrial Court and on appeal to the Court of Appeal, the worker was successful in the claim. The liquidator appealed to the Privy Council, which ruled that, on a proper construction of the statutory provisions, the obligation to make a severance payment only arose where the business was continuing as a going concern. The Act defined retrenchment as ‘existence of surplus of labour for whatever cause’, and thus redundancy was not applicable when the business ceased to exist. It is interesting that this view has been taken by the board, especially in light of Section 24 of the Act which purports to protect the retrenched worker by giving them priority on the winding up of a business or the appointment of a receiver.319 A similar result to the Mahabir decision ensued in the case of Sherida Khan v Summit Finance Corporation of Trinidad and Tobago,320 which reiterated the fact that: … though the worker may have been terminated in a surplus labour situation, thus giving rise to severance benefits claims, where the termination of the worker at the initiative of the employer as the Act requires, but at the instance of a third party’s action no rights arose under the Act. 313 Section 11 Employment (Termination and Redundancy Payments) Act. 314 Severance Payments Act Fifth Schedule. 315 Section 151 Labour Code. 316 Section 152 Labour Code. 317 Gilkes, F. (2006) Industrial Relations in Trinidad and Tobago – The Known and the Unknown Paper presented to the American Chamber of Commerce of Trinidad and Tobago, November 23, 2006. 318 (1994) 45 WIR 447 PC, [1994] 1 WLR 1297; Privy Council Appeal 27 of 1993 (delivered July 26, 1994). 319 See Herde and Another v Mahabirsingh (1992) 41 WIR 409 PC. 320 RSBD 57 of 1987 (unreported) delivered December 13, 1994 [TT 1994 IC 80]. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 207 The third party here was the court which, by virtue of the relevant statutory powers, compulsorily wound up the business’s operations. The court bemoaned the fact that its hands were tied and it had to enforce the law as it was written, with the consequence that many workers, having worked for many years, were sent home empty-handed.321 It is, however, arguable whether this result would still occur if the employer’s business was subject to a ‘voluntary winding up’, especially in cases of unfair dismissal.322 In the Bahamas,323 Antigua and Barbuda,324 Grenada,325 St. Lucia326 and St. Vincent and the Grenadines,327 the challenge of what happens to the employee when the employer’s business is wound up is clearly addressed in legislation. While the Bahamian and Antiguan legislation is minuscule, merely stating that the amount due for redundancy must be paid in priority to other debts, the provisions in the other jurisdictions may be considered expansive. There, the winding up or insolvency of an employer’s business terminates the contract of employment one month from that date, or on the appointment of a receiver, unless otherwise determined. However, if (notwithstanding the winding up or insolvency) the business continues to operate, this provision is not applicable. The claims of the employees or their legal representatives have priority over all other creditors, inclusive of the government and social security obligations, for the following amounts: • • • • wages, overtime pay, commissions and other forms of remuneration relating to work performed;328 accrued vacation leave benefits as a result of work performed during the two years preceding the date of the opening of winding up or appointment of the receiver; amounts due in respect of other types of paid absence accrued during the twelve months preceding the date of the opening of winding up or appointment of the receiver; redundancy pay, severance pay, compensation for unfair dismissal and other payments due to employees upon termination of their employment. In jurisdictions where there are no specific provisions within the redundancy legislation addressing insolvent employers, the general law in this regard is applicable which may not necessarily give the same level of priority to such claims. Thus, for example, in Jamaica the Bankruptcy Act329 and the Companies Act330 place a claim for redundancy payments fifth in line of precedence behind taxes, wages due to clerical workers and to labourers, and National Insurance contributions. Remedies and compensation for redundancy Where the statutory provisions regarding the payments of redundancy are breached, there are not many options available to seek redress. In some instances, the administrative mechanisms 321 Ibid. 322 Nyombi, C. (2013) ‘Employees’ Rights During Insolvency’ 55 International Journal of Law and Management 417–428. 323 Section 28(3) Employment Act. 324 Section C55(2) Labour Code. 325 Section 87 Employment Act. 326 Section 150 Labour Code. 327 Section 21 Protection of Employment Act. 328 Vincentian and Dominican law limits this amount to the twenty-six weeks preceding the commencement of winding-up proceedings or the appointment of a receiver . 329 Section 139(1) and (3); Antigua Bankruptcy Act Section 37(1); Bahamas Companies Act Section 267(1). 330 Section 311(1)(e) – the issue to be determined is whether or not the entitlement falls due before or after the appointment of a liquidator. 208 Commonwealth Caribbean Employment and Labour Law of government (labour commissioners, ministries or conciliation officers)331 may also be approached to find amicable resolutions of the issues. The aggrieved worker may seek the assistance of the Industrial Court332 or Tribunal333 in claiming payment of the outstanding amounts, and it is noteworthy that Barbados operates a specialised tribunal334 for the determination of matters arising under the purview of the Act. In some jurisdictions, redress may also be claimed through the conventional court system as a civil debt335 and, in such cases, the claim must be fully pleaded when initially made.336 However, as seen in Paulette Matthew v Antigua and Barbuda Port Authority Board of Commissioners,337 where this forum is utilised in deference to the specialised Industrial Court, it is not restricted from relying on the same principles used in the latter jurisdiction. Indeed, Harris J opined that ‘… to do otherwise would be to deprive a litigant of his legitimate expected entitlements under the law and practice and conventions in relations in industrial matters merely by his opting to this constitutionally protected court of unlimited jurisdiction’.338 In other jurisdictions, a breach of the provisions also amounts to a criminal offence,339 in which case the relevant state prosecution agency would be charged with the responsibility of addressing the issue. In Trinidad and Tobago, a breach of the Act’s provisions may well be an Industrial Relations Offence,340 with a possible consequential award of damages in appropriate cases.341 Calculation of the benefit Various formulae have been utilised by regional legislation to compute the minimum quantum of the entitlement for severance or redundancy entitlement. This is in line with the international policy guidelines in the ILO Convention 158 and Recommendation 166, and takes account of indigenous legal principles, customs and practices, as evidenced in the table below. 331 Grenada Employment Act Section 84(5); St. Kitts and Nevis Protection of Employment Act Section 30(1); Dominica Protection of Employment Act Section 36; St. Vincent and the Grenadines Protection of Employment Act Section 35; Antigua and Barbuda Labour Code Section C47. 332 See Trinidad and Tobago Redundancy and Severance Benefits Act Sections 21, 23 – through the recognised majority union but, where there is no union, the employee may seek the assistance of the Minister in having the matter sent to the Industrial Court. 333 Employment Act Section 28(2). 334 Section 38 Severance Payments Act. See also commentary in Chaudhary, R. and Castagne, R.M. (1979) Aspects of Caribbean Labour Relations Law (Coles Printery, Barbados) at 168–172. 335 See Jamaica Employment (Termination and Redundancy Payments) Act Section 17 – claims can be made for redundancy payments to the Resident Magistrates’ Court; see Thomas Welch v Caribbean Aviation Training Centre and Captain Errol Stewart RMCA No. 09 of 2008 Jamaica CA (unreported) delivered April 3, 2009; St. Kitts and Nevis Protection of Employment Act Section 33(1). 336 Samuel Wray v University of the West Indies Privy Council Appeal No 40 of 2005 (unreported) delivered March 7, 2007 [JM 2007 (PC) 5]. 337 Claim ANUCHV 129 of 2005 Antigua and Barbuda High Court (unreported) delivered September 4, 2008. 338 Ibid., p. 10 para 27. 339 Guyana Termination of Employment and Severance Pay Act Section 14(3); Antigua and Barbuda Labour Code Section C52. 340 Section 25(2) Retrenchment and Severance Payments Act; see also Caribbean Tyre Limited and Oilfields Workers’ Trade Union Civil Appeal No. 106 of 1986 (unreported) delivered July 27, 1988 [TT 1988 CA 30]. 341 See Diamondtex Style Limited v National Union of Government Federated Workers Civil Appeal No 59 of 2008 Trinidad and Tobago CA (unreported) delivered October 31, 2011. Table 7 Select Statutory Redundancy Calculation in the Commonwealth Caribbean Country Statute Entitlement Antigua and Barbuda Barbados Labour Code Section C41 Severance Payments Act First Schedule At least one day’s pay at the latest basic wage for each month or fraction of the employment term • • • Bahamas Employment Act Section 26(2) • • Dominica Protection of Employment Act Section 22 • • • Guyana Termination and • Redundancy Payment Act • Section 21(1) • Jamaica Employment (Termination and Redundancy Payments) Regulations Regulation 8 • • Two and a half weeks’ basic pay for each year of continuous service up to ten years Three weeks’ basic pay for each year between ten and 20 years’ continuous service Three and a half weeks’ basic pay for each year after 20 years’ service, up to a maximum of 33 years’ continuous service Employed for twelve months or more: two weeks’ basic pay (or part thereof on a pro rata basis) up to a maximum of 24 weeks; additionally, two weeks’ notice or two weeks’ basic pay in lieu thereof Supervisory or managerial position holder: one month’s basic salary (or part thereof on a pro rata basis) up to a maximum of 48 weeks; additionally, one month’s notice or one month’s basic pay in lieu thereof Not exceeding five years’ service: one week’s pay for each year, plus two weeks’ pay for each year in excess of three years Exceeding five years but not exceeding ten years: nine weeks’ pay, plus two weeks’ pay for each year in excess of five years Exceeding ten years: 19 weeks’ pay, plus three weeks’ pay for each year in excess of ten years (pro rated for service less than a year): • three months =¼ year • more than three months but less than six months = ½ year • more than six months but less than nine months = ¾ year • more than nine months = one year One week’s wages for each completed year of service for the first five years including entitlement year Two weeks’ wages for each completed year of service after fifth year up to the tenth year Three weeks’ wages for each completed year in excess of ten years, up to a maximum of 52 weeks For a period not exceeding ten years of employment: the sum arrived at by multiplying two weeks’ pay by the number of years; For a period exceeding ten years: first ten years reckoned, the sum arrived at by multiplying two weeks’ pay by that number of years; for the years remaining, the sum arrived at by multiplying three weeks’ pay by the number of such remaining years (pro rated for service less than a year): • • • less than 13 weeks = disregarded exceeding 13 weeks but less than 39 weeks = ½ year exceeding 39 weeks = one year 210 Commonwealth Caribbean Employment and Labour Law Table 7 Select Statutory Redundancy Calculation in the Commonwealth Caribbean (Continued) Country Statute Entitlement St. Kitts and Nevis Protection of Employment Act Section 29(1) • St. Lucia Labour Code Section 160 • • • • • • St Vincent Protection of • and the Employment Grenadines Act Section 25 • • • Trinidad and Retrenchment • Tobago and Severance Payments Act Section 18(3)&(4) • • Two weeks for each year of continuous service for a period of up to five years’ service Three weeks for a period of five to ten years’ service Four weeks for any period of service in excess of ten years, calculated backward from the date of the termination of employment One week’s basic pay for each completed year of service up to the first three years Two weeks’ basic pay for each completed year of service in excess of three years and up to seven years Three weeks’ basic pay for each completed year of service in excess of seven years of service The amount of a week’s pay shall be the amount the employee would be entitled to in the last week of his or her employment or $350.00, whichever is lower Two weeks’ pay for each year of continuous service from two to ten years Three weeks’ pay for each further year of continuous service from 11 to 25 years Four weeks’ pay for each further year of continuous service in excess of 25 years Half year or more to count as a full year, and less than half year to be excluded from the calculations Continuous service for more than one but less than five years: two weeks’ pay at his basic rate if he is an hourly, daily or weekly-rated worker, or one half month’s pay at his basic rate if he is a monthly-rated worker, for each such completed year of service Continuous service for five years or more: in addition to above entitlement, three weeks’ pay at his basic rate if he is an hourly, daily or weekly-rated worker, or three quarters month’s pay at his basic rate if he is a monthly-rated worker, for the fifth and each succeeding completed year of service Each period of service amounting to less than a completed year of service shall be calculated on a pro rata basis As can be seen from the preceding information, the entitlement is usually calculated by reference to a period of weeks and the multiplicand of the years of continuous service stipulated, after the worker has met the requisite minimum continuous employment condition and there is a redundancy situation, without any exclusionary circumstances. Most statutes also use the most current actual basic pay or wages as the numerical value for the computation of the entitlement. The term ‘normal wages’ envisions regular remuneration (where this includes bonuses and commissions) but usually excludes overtime or any premium and special allowances or other Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 211 discretionary payments.342 Thus, in Advocate Company Limited v Wood343 the Barbados High Court found that a profit-sharing payment consistently made by the appellant company was to be considered a part of the weekly pay for the purpose of calculating severance payments. As was seen earlier, the employee is also to be provided with appropriate notice (or payment in lieu thereof) in the event of redundancy. The operation of this obligation has the capability of impacting the calculation of the redundancy entitlement, as illustrated in R v Industrial Disputes Tribunal Ex Parte Caribbean Steel Company Ltd.344 Here the company made the workers represented by the union redundant and unilaterally sought to transmit to them their redundancy entitlement and pay in lieu of notice. A dispute arose between the union and the employer as to what rate of pay should be used to compute the entitlement and what date should be used to ascertain the period of continuous employment. The company contended that the payments in lieu, which the workers accepted, immediately put the employment contracts at an end. The unions, however, maintained that, since the workers were not given an opportunity (based on the provisions of the ETRPA) to elect whether or not to accept or reject the payment in lieu, they ought properly to utilise the date at which the notice period would have ended in each case as the relevant date at which to calculate the entitlement. The determination of this matter was all the more important as the IDT had previously handed down an award imposing new wage rates to commence on a date after the proposed date of dismissal, and the workers would lose this improved remuneration if the company’s argument held sway. At the IDT hearing, the panel was unmoved by the company’s position and made an award in favour of the union. At Judicial Review, the Supreme Court agreed with the IDT’s findings on the grounds that the workers had given no clear indication that they were waiving their right to notice, thus the statutory period should apply. The court further opined that the company could not (by its own failure to give the workers the choice) be allowed to benefit by depriving them of their legal entitlement that would have accrued to them had the requisite notice period been applied. Thus, the applicable rates and total sums payable were to be based on the emoluments existing at the later date ascribed to the end of the notice period. A similar conclusion was reached in the Trinidadian case of Oilfields Workers’ Trade Union v T Geddes Grant (Trinidad) Ltd.345 It is noted that, in the Bahamas, a distinction was made between a ‘regular employee’ and one employed in a managerial capacity, for the purposes of calculating the severance entitlement. In Smith v Dew (Dantzler WI Limited)346 the matter was examined and the Court of Appeal agreed – in upholding the decision of the Antigua and Barbuda Industrial Court – that the statutory provisions were merely minimum standards and it would be wrong to confine the Industrial Court to any pre-set formula. Therefore, the employee (who was a manager at the time of the redundancy) was awarded a far greater sum than the statutory minimum. Further, the Industrial Court in that jurisdiction can, in appropriate circumstances, make a determination of what would be a reasonable redundancy formula. In Cable & Wireless (West Indies Limited) v Conrad Tonge (deceased) et al347 the Privy Council, in agreeing with the Antigua and Barbuda Industrial Court and the OECS Court of Appeal, recognised that, where the 342 See definition of ‘normal wages’ in Regulation 2 Employment Termination and Redundancy Payments Regulations Jamaica and ‘basic pay’ or ‘weekly pay’ in paragraph 6 of the Second Schedule to the Barbados Severance Payments Act. 343 Suit No 21 of 1990 Barbados High Court (unreported) delivered June 1, 1993 [BB 1993 HC 20]. 344 Suit No. M of 1996 Jamaica SC (unreported) delivered November 6, 1996 [JM 1996 SC 51]; sub nom Caribbean Steel Company Limited v Bustamante Industrial Trade Union IDT Award No. 17 of 1995 (unreported) delivered March 28, 1995. 345 TD 24 of 1991 (unreported) delivered June 30, 1993. 346 Civil Appeal No. 10 of 1992 OECS CA (unreported) delivered June 6, 1994. 347 [2010] UKPC 25 (unreported) delivered September 28, 2010. 212 Commonwealth Caribbean Employment and Labour Law parties failed to agree a higher rate than the minimum, the Industrial Court could intervene and impose a formula for the calculation of the benefit. This was in accordance with its powers conferred under Section 10(3) of the Industrial Court Act, which allowed it to act with fairness and good conscience in all the circumstances of each case.348 It should be noted that the Trinidad and Tobago legislation349 makes provision for Registered Collective Agreements which contain more favourable severance benefits than the Act to take precedence.350 There have, however, been challenges raised in relation to circumstances where the statutory minimum provisions are not the only yardstick which can be used to measure the redundancy payment (for example, when greater benefits are proffered on redundancy dismissal by virtue of the employment contract or collective labour agreements). In Doreen Thomas et al v The Bank of Nova Scotia Jamaica Limited351 the claimants (who were senior management staff) sought to rely on an enhanced redundancy package formula negotiated by the union for the line staff after they were made redundant, to claim that the amounts they received when they accepted their entitlement should be increased. The court, in rejecting the argument, found not only that the payments could not be influenced by the new formula negotiated by the union (which was now being done on a totally different basis) but also that there was no subsisting contract between the claimants and the bank making it possible for this new provision to be utilised for their benefit. In the Bahamian case of Cheryl Smith et al v First Caribbean International Bank352 the claimants contended that they were eligible to receive both a statutory payment under section 26(2) of the Employment Act and the enhanced redundancy package offered under their collective labour agreement. In rejecting this assertion, the court indicated that, where the negotiated provisions were better than the legislated minima, the former would prevail.353 The underlying theme appears to be that more advantageous contractual severance provisions, once applicable, will often be positively countenanced to benefit employees. When should a claim for redundancy payment be made? When the terminated employee is eligible to receive a redundancy or severance benefit, they must act in accordance with the statutory prescriptions to access the same. In Jamaica, the claim must be made by notice in writing to the employer within six months of the redundancy situation occurring,354 or otherwise the employee risks losing the entitlement. If the parties agree the quantum of the payment to the employee, or had commenced legal proceedings under the Act to determine eligibility for the payment in this timeframe, they will not be disenfranchised.355 Should the employee die before making a claim within the six-month window, the time will be extended if their personal representative makes the claim by notice in writing before the expiration of one 348 Ibid. at para 11 – the board also was of the view that the Industrial Court did not have to be convinced that the company acted unfairly in making its decision to change the formula used to calculate the benefit; rather that the court had a wide discretion under Section 10(3) and it had exercised it responsibly. 349 Retrenchment and Severance Payments Act Section 18(2). 350 Transport and Industrial Workers’ Union v Public Transport Service Corporation TD 188 of 2002 (unreported) delivered March 14, 2005. 351 Suit No 2141-2 of 2003 (unreported) delivered May 8, 2009. 352 Suit No. 2011/CLE/GEN/01354 (unreported) delivered December 19, 2011. 353 Section 4 Employment Act. 354 Section 10(1) ETRPA; see also Paulette Richards v Trafalgar Travel Limited Claim No. 2010 HCV 00680 (unreported) delivered May 25, 2012, where the court found that the fact that the written claim for redundancy made to the employer came in the first six months was sufficient, notwithstanding that the claim in court occurred some five years later. 355 See Dr Michael Haley v The University of the West Indies [2010] JMCA Civ 49 (unreported) delivered December 20, 2010, where the Jamaican Court of Appeal found that the application for relief came some seven months after the date of termination and was therefore statute barred. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 213 year of the relevant date.356 A similar provision exists in Barbados, with the timeframe being twelve months.357 In the other jurisdictions, the making of a claim to the employer is not obligatory since, in some instances, the entitlement is deemed to exist upon the employee meeting the statutory requirements. However, the legal claim for the actual payment of the benefit (if not voluntarily made by the employer) will need to be made within the usual limitation period for civil claims in the conventional courts or, where applicable, the timeframe required for approaching the industrial court or tribunal. When should payment of redundancy entitlement be made? The positive financial impact of any redundancy benefit accruable to an aggrieved worker may not be felt unless it is available in close proximity to the date of dismissal. In this regard, the legislation in St. Vincent and the Grenadines,358 Antigua and Barbuda359 and the Bahamas360 stipulates that the redundancy or severance payment is to be paid contemporaneously with the dismissal.361 In Barbados,362 the payment must be made within two months of it becoming due or, at the latest, within four months thereafter. The legislation also makes provision for interest to be payable at a rate to be determined by the Minister responsible for Finance. In Trinidad and Tobago,363 the prescribed statutory timeframe to remit severance payments is within thirty days of the expiration of the requisite notice. This is subject to provisions being made for re-absorption into another part of the business, whereupon the severance payments may be withheld and, pending such full re-employment, the employer should make a relief payment of half the worker’s basic salary on the regular pay days.364 This interim period may not exceed three months or until the worker finds alternative employment, in which case the relief payments should be set off against the final severance benefits.365 Antigua and Barbuda specifically provides, in respect of lay-off situations, that payments should be made after three months if no recall date is given after termination, with a ten per cent rate of interest for the period between the lay-off and actual payment.366 In Jamaica, there is no statutory timeframe prescribed for the payment of redundancy entitlement, which has caused a myriad problems for the aggrieved employee who will have to rely on the vicissitudes of the civil law procedures to make a statutory claim. Source of compensation Another cause for concern, in relation to the payment of redundancy or severance benefits, is the source of the funds. ILO Convention 158 contemplates that, in accordance with national law and practice, the payment should be made either by the employers directly or by a fund constituted by employers’ contributions.367 In some countries such as Jamaica and Trinidad 356 Section 10(2) ETRPA. 357 Section 37 Severance Payments Act. 358 Protection of Employment Act Section 27(2). 359 Labour Code Section C42 360 Employment Act Section 28(1). 361 The words used are ‘on or before’, ‘simultaneously’ and ‘forthwith’. 362 Severance Payments Act Section 3A. 363 Redundancy and Severance Benefits Act Section 22. 364 Redundancy and Severance Benefits Act Section 19(1). 365 Redundancy and Severance Benefits Act Section 19(2). 366 Labour Code Section C42(2)(b). 367 Article 12(1)(a). 214 Commonwealth Caribbean Employment and Labour Law and Tobago,368 it falls directly to the employer to meet the demands for the monetary amounts due to the eligible worker. This situation is problematic because often the employer is already in dire financial straits, which is the situation which necessitated redundancy or retrenchment in the first instance. Hence, the workers may find themselves in the invidious position of having a right in law which, in actuality, is illusory. However, in Belize the Minister may by written order, in situations where there is a change of the business name, sale, transfer or full closure of an undertaking, mandate the employer to provide financial security in an amount he prescribes to satisfy the existing redundancy claims from workers.369 This provision, though commendable, could easily present a challenge, in that unscrupulous employers may still evade the authorities by failing to inform the Minister in the stipulated timeframe, thus allowing the Minister to make the financial security order. The workers could therefore very likely be left without a feasible remedy to pursue. In other jurisdictions such as St, Kitts and Nevis,370 Barbados371 and Dominica,372 the situation is somewhat better, in that the payment obligation rests with a national fund managed by the state (sometimes under the umbrella of the Social Security regime) and resourced either by joint employer and employee contributions, employer deposits only, or a mixture of tax revenue and employer contributions. In relation to the Barbadian position, Downes, Mamingi and Antoine expound on the matter in the following terms: Employers in some countries (e.g. Barbados) are responsible for paying severance to employees when they are terminated and then recovering part of the payment from a Severance Payments Fund. In Barbados the Severance Payment Fund is administered by the National Insurance Board. Employers must make severance fund contributions on behalf of their employees based on their insurable earnings. Employers are required to pay employees their severance and then claim a rebate which is determined by the Minister responsible for the fund’s administration. In cases where the employers are unable to make the payments to the employees, the fund makes the payment to the employees and then seeks to recover the amount from the employers. The severance payments system is not experience rated; hence employees do not pay a reduced contribution to the fund if they have a long history of non-severance.373 It should, however, be noted that, in order for the fund to directly pay the employee the entitlement, there must be an award to this effect made by the Severance Payment Tribunal or the National Insurance Board.374 In theory at least, the use of such arrangements should redound to the benefit of the severed employee, as it is more likely that a fund will be easily accessible and well financed, thus ensuring not only that they will receive the entitlement, but also that they will do so in a timely manner. However, much will depend, in practical terms, on how competently the fund is managed in the short and medium term to guarantee its sustainability and increase the odds of eligible persons attaining this desired result. 368 See Banking, Insurance and General Workers’ Union v CommNet Caribbean Limited RSBD No 6 of 2008 (unreported) delivered March 5, 2010, where the Industrial Court confirmed that it was the duty of the employer to make severance payments. 369 Labour Act Section 45(4). 370 Protection of Employment Act Part III Sections 12–24. 371 Barbados Severance Payments Act Part V Sections 24–34. 372 Dominica Protection of Employment Act Part III Sections 27–35. 373 Downes, A. S., Mamingi, N. and Antoine, R.-M. B. (2004) ‘Labour Market Regulation and Employment in the Caribbean’ in Heckman, J. and Pages, C. (Eds) Law and Employment Lessons from Latin America and the Caribbean (University of Chicago Press), 517–552 at 523; also see commentary in Chaudhary, R. and Castagne, R.M. (1979) Aspects of Caribbean Labour Relations Law (Coles Printery, Barbados) pp. 167–168. 374 Barbados Severance Payments Act Sections 30 and 31. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 215 Intersection of redundancy and unfair dismissal The spectre of redundancy or retrenchment can have an impact in unfair dismissal cases, since (as will be explored below) most legislation prescribes that a genuine redundancy carried out under a reasonable procedure may constitute a fair ground for dismissal. Another very important consideration is that the determination can have serious implications for the worker in that a finding of unfair dismissal usually provides greater compensation for the employee.375 Employers may, however, escape liability if they adhere to the following guidelines outlined in Williams v Compair Maxam Limited376 and they: • • • • • warn or inform employees about the possibility of redundancy; consult with the affected employee or their representatives; adopt a fair and objective basis for selection; ensure the criteria are used and fairly applied; and take all reasonable steps to avoid or minimise redundancy or redeployment. UNFAIR/UNJUSTIFIABLE DISMISSAL377 As has been fully discussed in Chapter 5, the common law’s operation in the termination of employment field brought untold challenges for the average employee who was disciplined or dismissed lawfully but in circumstances which gave little or no credence to the manner, reason (except insofar as gross dismissal was concerned) or the procedure utilised in the process. The effect of this state of affairs was that, outside of union representation, workers were virtually powerless to protect themselves against the deleterious effects of the arbitrary actions of unreasonable employers. Despite their prolific efforts, if employers refused to deal with the union acting on the behalf of any worker, the weapon of industrial action was regularly resorted to in a bid to ‘up the ante’ in the fight to protect workers’ rights.378 With the union’s great reliance on disruptive means of protest, and the potential negative impact on a country’s economy, the legislature recognised and begrudgingly accepted that statutory interventions were required, in the hitherto unregulated sphere of dismissal law, to provide a framework for the equitable dismissal of workers.379 Historical development of unfair dismissal concept With its genesis in the Donovan Commission380 recommendations, the UK enacted a law381 to furnish protection to individual workers with the right not to be unfairly dismissed. The principle 375 See Smith, I. and Baker, A. (2010) Smith and Wood’s Employment Law (10th Ed., Oxford University Press) at p. 507; see also Watt v Antigua Village Condo Corporation Civil Appeal No. 6 of 1992 Antigua and Barbuda CA (unreported) delivered February 7, 1994 [AG 1994 CA 2], which is illustrative of the point; the former employee was awarded a significant sum in damages for unfair dismissal – far greater than she would have been entitled to as a severance payment for the duration of her employment. 376 [1982] ICR 156. 377 See generally ILO (1995) General Survey on Termination of Employment Convention No. 158 and Recommendation (No. 166) Protection against Unjustified Dismissal. 378 See full discussion of this in Chapter 8. 379 See general discussion in this regard by Cumberbatch, J. (1994) ‘Plus Ça Change … The Interpretation of New Individual Employment Rights in the Commonwealth Caribbean’ 4 Caribbean Law Review 342. 380 Donovan Commission (1968) – Report of the Royal Commission on Trade Unions and Employers Association Cmnd 3632 (HMSO, London). 381 First enunciated in the Industrial Relations Act 1971, then the Employment Protection Act 1975, and currently at Employment Rights Act 1996, ss 94–132. 216 Commonwealth Caribbean Employment and Labour Law underpinning the precept is that, unless a worker’s dismissal is for an automatically or potentially fair reason as enunciated by statute and is procedurally correct, the dismissal will be unfair. The immediate success of the right’s implementation was that employers were forced to formulate internal procedures to ensure their actions in relation to discipline and dismissal of workers would not fall foul of the law when terminations were contemplated, thereby alleviating some of the previous capricious actions of employers.382 In the Commonwealth Caribbean, the fact that workers (unionised or not) were suffering from the same lack of protection against whimsical dismissals was also recognised. A similar panacea was first prescribed in the region by the Trinidad and Tobago Parliament in the form of the Industrial Stabilisation Act and the successor Industrial Relations Act which, although clearly geared towards the regulation of industrial action, importantly also encapsulated the principle of unfair dismissal by the use of the term ‘harsh and oppressive’.383 In Jamaica, Parliament contemplated enacting legislation to redress the issue at least five times between 1964 and 1975, when the Labour Relations and Industrial Disputes Act was eventually passed.384 It is evident from the parliamentary debates surrounding its promulgation that government and opposition legislators in both the House of Representatives and the Senate were ad idem that this perceived injustice should be remedied.385 One Senator stated: … employers … cannot simply separate a man from his job whimsically or for no reason … there is a necessity to prove the worker’s guilt before you can separate him from the job. The right to one’s job is universal irrespective of what economic framework one is operating under. The arrogance of the employer class should be frontally dealt with by making it clear that if a worker is adjudged to be wrongfully dismissed … if the worker so desires he [should] be able to get his job back.386 Over the years, all countries387 within the region have since followed in the footsteps of Jamaica and Trinidad and Tobago by implementing legislation to provide some level of protection to employees against unfair dismissal practices. As will be discussed in detail below, although the statutory structures differ across jurisdictions, there is congruence in the underlying intentions.388 Taking as its base the ILO Conventions and Recommendations,389 there are two major issues to be considered in relation to unfair dismissals: firstly, the termination of employment 382 See Collins, H. (1991) ‘The Meaning of Job Security’ 20 ILJ 227; see also Smith, I. and Baker, A. (2010) Smith and Wood’s Employment Law (10th Ed., Oxford University Press) at 458. 383 See Section 10 Industrial Relations Act (discussed further below and in Chapter 2). See also review of the concept by Okpaluba, C. (1974) ‘Unfair Employment Practices in a Caribbean Industry’ 6 Lawyer of the Americas pp. 69-92. 384 Chaudhary, R. (1984) Studies in Caribbean Labour Relations Law (2nd Ed., Coles Printery, Barbados) p. 157. 385 Jamaican Parliamentary Hansard dated March 19 and 27, 1975. 386 Senator Carlyle Dunkley, Jamaican Parliamentary Hansard dated March 19, 1975 at p. 203; note, however, that although the senator was clearly contemplating unjustifiable/unfair dismissal the word ‘wrongful’ was used, which could cause challenges in the legal interpretation of the concept. 387 Antigua Labour Code Part V; Bahamas Employment Act Part IX; Barbados Employment Rights Act Part VI; Belize Labour Act Section 42; Bermuda Employment Act Section 28; British Virgin Islands Labour Code Part V Sections 82, 84, 86; Dominica Protection of Employment Act Section10; Grenada Employment Act Sections 74, 76 and 80; Guyana Termination of Employment and Severance Pay Act Section 8; Montserrat Labour Code Section 62; St. Lucia Labour Code Sections 129 and 131; St. Vincent and the Grenadines Protection of Employment Act Sections 16 to 18. 388 However, note the lament by Cumberbatch, J. (1995) ‘By Any Means Unnecessary – Court Action and the Conciliation Procedure for Unfair Dismissal in the British Virgin Islands’ 20 WILJ 100-120 at 115 that ‘while Commonwealth Caribbean jurisdictions which have enacted legislation in respect of unfair dismissal are to be commended for taking this progressive step most of the statutory provisions whether by error or design reveal some regrettable inconsistencies and suggest that the respective draftsmen felt a certain amount of unease at the whittling down of the formerly absolute managerial prerogative to dismiss’. 389 See in-depth review of the relevant ILO instruments in the discussion above on international considerations at pp. 32–37. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 217 should not be allowed unless there is a valid reason for such a termination of the worker which is itself reasonable in the circumstances; and, secondly, whether the procedure employed in the dismissal was fair.390 This loose adumbration of the principle has evolved greatly, as the industrial tribunals and courts across the Commonwealth Caribbean region have become endowed with specific statutory jurisdiction. It is now quite appropriate for an industrial tribunal, court or other adjudicatory body to denigrate the alleged lawful reasons for dismissal in recognition of the primacy of the manner in which the employee was dismissed, and the extent to which the behaviour of the employer, albeit lawful at common law, can nonetheless be said to be unfair.391 Defining unfair dismissal Phillips J in W. Devis & Sons Ltd v Atkins392 aptly describes the phenomenon of unfair dismissal from a UK perspective thus: It is important to note, I think, that the expression ‘unfair dismissal’ is in no sense a common sense expression capable of being understood by the man in the street, which at first sight one would think that it is. In fact, under the Act, it is narrowly and to some extent arbitrarily defined. And so the concept of unfair dismissal is not really a common sense concept; it is a form of words which could be translated as being equivalent to dismissal ‘contrary to the statute’ and to which the label ‘unfair dismissal’ has been given.393 From a UK perspective, therefore, once a person meets the eligibility criteria,394 Section 94 of the Employment Rights Act provides the right not to be unfairly dismissed and, as such, the reason or principal reason for a dismissal must be proved by the employer. In this regard the legislation sets out certain circumstances as being automatically fair,395 automatically unfair396 or potentially fair397 reasons for dismissal. In the Commonwealth Caribbean, where legislative provision has been made for unfair dismissal, two methods have been utilised. Firstly, in Trinidad and Tobago, no specific statutory ‘right’ is delineated but ‘… through its Industrial Court … the concept of “unfair industrial 390 Concepts of natural justice and due process figure prominently here, especially in jurisdictions where no distinct disciplinary or dismissal procedures have been mandated by the statutory framework. 391 See Jamaica Court of Appeal decision of IDT v The University of Technology of Jamaica (UTECH) and University and Allied Workers Union (UAWU) [2012] JMCA Civ 46 (unreported) delivered October 12, 2012. Here the Industrial Disputes Tribunal, in the course of its investigation into the unjustifiable dismissal of an employee accused of misconduct, asserted that it was entitled to re-examine the grounds of dismissal advanced by the employer to assess whether they were reasonable and adequate. See also commentary on this case by Corthésy, N. (2012) in ‘The Horse Has Gone Through The Gate’ 37 WILJ 185–199, where she examines the propriety of co-mingling the questions of wrongful and unfair dismissal. 392 [1976] IRLR 16 (QBD); see also Rouslstone and Coffee v Cayman Airways Ltd [1992-93] Cayman Islands Law Reports 259, where the court acknowledged the statutory nature of the unfair dismissal cause of action. 393 Ibid. at 20. 394 The main issues to be determined here are that the person is an employee, has the requisite period of continuous employment and has in fact been dismissed. 395 Reasons of national security and dismissal during an unauthorized strike or industrial action; see Jefferson, M. (2000) Principles of Employment Law (Cavendish Publishing, 4th Ed.) pp. 344–351. 396 These include sex/race/disability discrimination, pregnancy or reason connected with pregnancy, trade union membership or refusal to be part of union, taking part in protected industrial action, having a spent conviction, transfer of undertaking, assertion of statutory right, reason connected with health and safety, making a protected disclosure, acting as employee representative, requesting flexible working arrangement – see discussion in Nairns, J. (2008) Employment Law for Business Students (3rd Ed., Pearson Education Limited) pp. 236–242. 397 Capability and qualification, (mis)conduct, retirement, redundancy, statutory illegality and ‘some other substantial reason’ – see discussion in Honeyball, S. (2008) Textbook on Employment Law (10th Ed., Oxford University Press) pp. 156–180. 218 Commonwealth Caribbean Employment and Labour Law relations practice” [is established] while Jamaica’s Industrial Disputes Tribunal has provision for “unjustifiable dismissal”’398 by virtue of the interpretation placed on the Labour Relations and Industrial Disputes Act. It should also be noted that, prior to the passage of the Barbadian Employment Rights Act in 2012, judicial activism was also being utilised in a rather confusing way to implement unfair dismissal principles (using the term ‘without just cause’) via interpretation of a tangential statutory provision.399 This practice must now, of necessity, be overtaken by the new statutory regime. Secondly, and by far the more typical and perhaps desirable approach is to specifically enumerate the right not to be unfairly dismissed and/or to outline in detail the circumstances where dismissals will be deemed unfair. However, it should be noted that at least one Caribbean scholar400 is of the view that it should not be presumed that, since some regional legislations have listed categories of dismissals which are unjust, this in fact equates to an appropriation of broad policy adopting unfair dismissal principles. Notwithstanding this view, we will proceed to initially examine these provisions as they exist in an expansive manner, since (as will be seen from the discussion below) many of these early statutes have now been expanded or new laws have been promulgated which capture a wide array of circumstances considered as unfair. Thereafter we shall review the judicially construed principles in the context of the more structured legislative approach. It should be noted that, although the discussion is loosely guided by the UK unfair dismissal legal framework and categorisations, this is not to be taken as the regional states being in strict conformity with their legislative framework, but rather that it is merely being used as a benchmark to hinge the various legal constructs existing and operating in Commonwealth Caribbean jurisdictions. Specific statutory provisions regarding unfair dismissal rights The relevant legislation in Barbados,401 The Bahamas,402 Antigua and Barbuda403 and St. Vincent and the Grenadines,404 in common with the UK position, specifically enumerates that workers have the right not to be unfairly dismissed. In contrast, in Dominica,405 instead of negatively prohibiting unfair dismissal, the legislation instead positively establishes a right to work and thereafter indicates the reasons upon which an employer can possibly rely to dismiss. In the other jurisdictions the employee’s protection against unfair dismissal is left to be extrapolated from the interpretation of the relevant legislative provisions, which for the most part indicate the circumstances where dismissals will be considered unfair. 398 Downes, A. S., Mamingi, N. and Antoine, R.-M. B. (2004) ‘Labour Market Regulation and Employment in the Caribbean’ in Heckman, J. and Pages, C. (Eds) Law and Employment Lessons from Latin America and the Caribbean (University of Chicago Press), 517–552 at 523. 399 See full discussion on this conundrum at pp.156–160 in Chapter 5 (the peculiar case of Barbados). 400 Antoine, R.-M. B. (1992) The CARICOM Labour Law Harmonisation Report (Faculty of Law, University of the West Indies) p. 332; she goes on to state that this simply means that the listed categories are the only ones which are protected and therefore it is possible that an employer could proceed to dismiss for any other reason, no matter how unjust the reason in light of modern labour law practice. 401 Employment Rights Act Section 27(1). 402 Employment Act Section 34. 403 Labour Code Section C56. 404 Protection of Employment Act Section 5(1); it should be noted that, prior to the reformulation of the Protection of Employment Act of St. Vincent in 2003, the employee was also specifically protected against unfair dismissal vide Section 3(1) which stated ‘Every employee engaged in a protected employment in a notified establishment shall, on and after 1st July 1980, stand protected against unfair termination of his employment by his employer …’. 405 Protection of Employment Act Section 3. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 219 Eligibility and exclusions In Barbados,406 to be eligible to make a claim the employee must have been continuously employed for at least one year prior to the effective date of termination; while, in the Bahamas,407 employees who are serving in a ‘disciplined force’ are exempted from claiming. The Antigua and Barbuda, Grenada408 and St. Lucia409 legislation also preclude persons working in their probationary periods from seeking unfair dismissal redress.410 St. Lucia’s statute411 also bars persons who are employed as apprentices or as trainees for a continuous period of less than twelve weeks from claiming the benefit. The Barbadian legislation stipulates that the claim must be made within three months of the effective date of dismissal, or any other period the Tribunal deems reasonable where it is satisfied that it was not reasonably practicable to make the application in adherence to the statutorily mandated period.412 A similar timeframe exists in Grenada413 while, in Belize,414 the timeframe for making a claim is a mere twenty-one days after the date of the dismissal. It is clear from the various legislations that an employee must surmount at least three hurdles to succeed in an action for unfair dismissal. It must be evinced that: (a) the employee has been dismissed by his employer; (b) the dismissal is for a prohibited reason; OR no reason has been given for the employee’s dismissal; OR the reason (or the primary reason, if there is more than one) is not a valid reason within one of the reasons listed in the genus of potentially fair dismissals; OR there is no factual basis for the reason given; AND (c) under the circumstances, the employer acted unreasonably and without using any prescribed procedure or did not afford the employee the benefit of natural justice to respond to any allegations which would have resulted in his dismissal. Each of these criteria will be discussed below. What is dismissal? It is essential that the employee is seen to be clearly dismissed before a claim for unfair dismissal can be countenanced by the adjudicating body; and, if so, when exactly did the dismissal occur. The importance of this fact cannot be overstated, as in many cases it grounds the claim in relation to the period of continuous employment required for accessing the benefit, as well as ascertaining whether or not the actual claim is made within the stipulated timeframe before becoming statute barred.415 Thus, if there is no actual dismissal and the employee has simply 406 Employment Rights Act Section 27(3); includes any probationary period (see Section 4). 407 Employment Act Section 3(1); ‘disciplined force’ has the meaning prescribed by Article 31 of the Bahamian Constitution (meaning member of the naval, military or air force, the Police Service of the Bahamas; or the Prison Service of the Bahamas). 408 Employment Act Section 82(2); additionally, where dismissal is because of normal retirement age, no claim can be made. 409 Labour Code Section 130(3). 410 Labour Code Section C56. 411 Labour Code Section 128. 412 Employment Rights Act Section 32. 413 Employment Act Section 82(1). 414 Labour Act Section 203(1). 415 See general discussion of these points in Deakin, S. and Morris, G. (2012) Labour Law (6th Ed., Hart Publishing) pp. 500-504 and Smith, I. and Baker, A. (2010) Smith and Wood’s Employment Law (10th Ed., Oxford University Press) at 431–444. 220 Commonwealth Caribbean Employment and Labour Law resigned (in circumstances which do not amount to constructive dismissal), or the employment contract is frustrated or the parties have genuinely agreed to mutually part company, there can be no basis for an unfair dismissal claim. The dismissal is a question of mixed fact and law, based on the actual issues revealed in each case. It is to be noted that the Barbados Employment Rights Act416 sets out a comprehensive scheme for determining the circumstances under which an employee is dismissed. Where the contract under which he is employed is terminated with or without notice, a fixed-term contract expires without being renewed under the same contract or the employee terminates the contract with or without notice in circumstances where he is entitled to do so consequent on the conduct of the employer (constructive dismissal), a termination would have occurred.417 Where the employee elects to give a counter-notice to terminate the contract at an earlier date within the employer’s given notice period, this will still be treated as a dismissal at the behest of the employer, and the reason proffered by the employer will be the accepted cause of the dismissal.418 The Barbadian Act goes further by designating what amounts to the effective date of dismissal,419 modelling the UK legislation.420 Thus, where the employment contract is terminated by notice given by either party, the effective date of termination will be the date of the expiration of such notice; where the contract is terminated without notice, the effectual date is when the termination takes effect; and, where a fixed-term contract expires without being renewed, the requisite date will be when the term itself expires. However, if the statutory period of notice as prescribed under the Act421 would exceed the date that would have been the effective date of termination in the preceding circumstances, the former date will be considered as the effective date for the purposes of an unfair dismissal claim.422 In cases of constructive dismissal, a similar provision also applies.423 In the Bahamas, a specific date of dismissal is legislated in claims of unfair dismissal in connection with lawful strike action or employer lock-out.424 For the most part, the remainder of regional legislation is silent on the question of defining what is dismissal for the purposes of unfair dismissal proceedings, and therefore it may be presumed that the relevant common law and statutory prescriptions governing dismissals apply in those specific circumstances and only go to prove that a dismissal or termination has in fact taken place. Reasons for dismissal The requirement that reasons be proffered when assessing the validity of a termination of employment signalled a paradigm shift from the arbitrary and harsh common law position.425 The common law action of wrongful dismissal requires neither an elucidation of reasons nor 416 Section 26(1). 417 See discussion on constructive notice in Chapter 5. 418 Section 26(2). 419 UK Employment Rights Act Section 28(1). 420 Employment Rights Act Section 97. 421 See Employment Rights Act Section 22. 422 Employment Rights Act Section 22(3) and (3). 423 Employment Rights Act Section 22(4) and (5). 424 Employment Act Section 40(4)(a). 425 See Christopher v Social Security Board Civil Suit No. 320 of 1990 (unreported) delivered May 30, 1995, where obiter Adams J bemoaned the fact that Dominican law in 1995 allowed a worker to be sent home ‘without the slightest indication of the reason therefor’. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 221 proof that the reasons so revealed are valid.426 Conversely, the statutory action for unfair dismissal is an interrogation into the substantive reasons for the dismissal, the probity thereof and, as a natural corollary, whether the employer’s conduct in the dismissal was reasonable.427 The general rule as stated by Cairns LJ in Abernathy v Mott Hay Anderson428 is that ‘the reason for the dismissal of an employee is the set of facts known to the employer or it may be of beliefs held by him, that cause him to dismiss the employee’. In pursuance of the ILO’s Termination of Employment Recommendation, 1982 (No 166),429 Section 28(1) of the CARICOM Model Harmonisation Act Regarding Termination of Employment provides inter alia that, ‘On the termination of a contract of employment an employer, if so requested by the employee, shall provide the employee with a certificate of employment in accordance with national law and indicating … where the employee so requests, the reason for the termination of employment’. This recommendation has been incorporated into the Labour Code of St. Lucia430 almost verbatim, with one significant distinction: the employer shall state the reasons for dismissal in the certificate, unless the employee indicates otherwise. The language of the St. Lucia Labour Code reflects a modern view on how to approach the termination of the employment contract, by mandating the employer to express the reasons for dismissal in the first instance, then subsequently bestowing on the employee a prerogative to have such details omitted. Arguably, the CARICOM Model Harmonisation Act, by requiring the employee to take the initiative to request the reasons for dismissal, does very little to advance its proclaimed objective431 of protecting the employee against unfair dismissal. In this regard, the St. Lucia Labour Code goes further by expressly excluding the question of notice as a non-relevant consideration when determining the question of unfair dismissal.432 In Antigua and Barbuda, the Labour Code433 also makes provision for the employee to be given a written statement of the precise reason for the termination, if so requested by the employee. Further, Section C10 (3) indicates that an employer who furnishes a statement shall be conclusively bound by the contents in any proceeding testing the fairness of the dismissal. An employer who neglects to furnish the statement shall be effectively estopped from introducing testimony as to any facts which would have been noted in such a document as a defence 426 Cumberbatch, J. (1997) ‘“Tell me precisely why …”: The Reason for Dismissal and Employer Estoppel in Antigua and Barbuda’ Vol. 2 No. 2 Caribbean Law Review at p. 12 – ‘Even where it is necessary to test the validity of a given reason at common law, the employer was not bound by the reason which he had given to the employee at the time of dismissal. The employer could put forward and establish at the trial of the matter any reason which existed at the time of the dismissal that would have justified it.’ See Boston Deep Sea Fishing Co v Ansell (1888) 39 Ch.D 339; Cyril Leonard & Co v Sims Securities Trust Ltd [1971] 3 All ER 1313; and Panchard Freres S.A. v Etablissements General Grain Co [1970] 1 Lloyds Rep 53. 427 Smith, I. and Baker, A. Smith and Wood’s Employment Law (10th Ed.) at p. 444 suggest that whether the employer’s conduct in the dismissal was reasonable is usually the central issue in an unfair dismissal case. 428 [1974] IRLR 213; it should be noted that the issue of what the employer believes is not necessarily the yardstick used by the Caribbean adjudicators – further discussed below. 429 This Recommendation replaced Termination of Employment Recommendation, 1963 (No. 119); the tenets of these recommendations concern termination of employment at the initiative of the employer. Muller, A. describes this Recommendation as ‘the pioneer of international regulation in the field of collective dismissals for economic reasons’; see Labour Law Reforms at the Crossroads of ILO Standards and OECD and World Bank’s Indexes, July 2012, accessible at: http://ilera2012.wharton.upenn.edu/ RefereedPapers/MullerAngelikaUPDATED.pdf. 430 No. 37 of 2006, Division 10, Section 156; see also Grenada Employment Act Section 78(1)(f) providing for a certificate of termination noting the reason for the dismissal, if the worker so requests, and Dominica Protection of Employment Act Section 15 which provides that the employer should give the employer notice of the date that the termination is to take effect and the reason for the termination. 431 See the CARICOM Model Harmonisation Act Regarding Termination of Employment, Section 1(b). 432 Ibid., Section 154. 433 Section C10(1), to be done within 7 days of the termination or the notice thereof. 222 Commonwealth Caribbean Employment and Labour Law in any unfair dismissal proceedings.434 The importance of this provision was underscored in Berridge and Edwards v Benjies Business Centre.435 Here the employer did not provide a statement outlining the precise reasons for the dismissal as requested, instead relying on a general statement given in the dismissal notice that the employees were guilty of ‘misconduct on the job in that you were seen committing an indecent act on your employer’s premises during working hours’.436 Whereas the Antiguan Industrial Court accepted a submission that the employer could not at the hearing seek to call a witness to adduce evidence of the alleged reason for the employee’s dismissal, having not provided the requested statement; the Court of Appeal (by majority) was of the view that those statutory provisions were irrelevant at the subsequent legal proceedings aimed at determining whether a worker was unfairly dismissed. On further appeal, the Privy Council agreed with the dissenting judgement of Byron J in the Court of Appeal that the words of the statute were unambiguous and, where it was not complied with, the provision could work to the detriment of an employer who sought at a subsequent hearing to adduce such evidence. Further, the Privy Council was of the view that ‘the binding nature of the statutory statement of reasons for dismissal was an integral part of the principles and practices of the Labour Code and the Industrial Court cannot disregard the provisions of Section 10(4)’.437 In reviewing the decision, Cumberbatch opines that their Lordships were correct in their determination of the matter since: as a matter of policy the employer is obliged to have a good reason at the time of dismissal. A requirement that he provides this reason at the time when or soon after he dismisses the employee thereby binding himself to the reason given, effects a more rational pursuit of that policy than a regime that permits the employer to adduce the relevant reason for the first time at trial.438 The statutory requirement for the employer to possess a valid reason for dismissal is greatly enhanced by an express requirement for the employer to put these reasons in writing at the time of dismissal. This is, in effect, a codification of the principle in Devis and Sons v Atkin439 that the employer cannot rely on a subsequently discovered reason to ground the dismissal. The most recent regional legislative incursion440 in this area, in recognition of this vital principle, not only requires the giving of a written statement of reasons for dismissal but also provides that the statement itself is admissible as evidence in any proceedings.441 Burden of proof In adjudging what is the reason (or, if there is more than one reason, the principal reason) for dismissal, the burden of proof rests with the employer. This displaces the usual common law proposition of ‘he who alleged must prove’ in deference to a decidedly ‘employee-centric’ stance. This is the position in the UK442 and this approach has also been statutorily mandated by some jurisdictions within the region. 434 Section C10(4). 435 [1997] 1 WLR 53 (PC); [1996] Eastern Caribbean Law Reports 329 (PC); (1994) 49 WIR 50 (CA). 436 Ibid. 437 Ibid. 438 Cumberbatch, J. in (1997) ‘“Tell Me Precisely Why …”: The Reason for Dismissal and Employer Estoppel in Antigua and Barbuda’ Vol. 2 No. 2 Caribbean Law Review at p. 18. 439 [1977] AC 931; see also West Midlands Society Ltd v Tipton [1986] IRLR 112. 440 Barbados Employment Rights Act Section 23(2) and (3). 441 It should be noted that the failure to provide the statement as requested by the employer also constitutes an actionable matter at the tribunal which, if proved, provides the worker with a monetary compensatory award; see Section 25 Employment Rights Act Barbados. 442 UK Employment Rights Act 1996 Section 98. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 223 Thus, in Barbados, Section 29(1) of the Employment Rights Act indicates that: (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show– (a) Barbados, Section 29(1) of the Employthe reason, or, if more than one, the principal reason, for the dismissal; and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. The statute does anticipate that an employer can put forward several reasons for dismissal. However, the emphasis placed on identifying the principal reason443 for dismissal suggests that, where all but one of the reasons given by an employer are rejected, it will be difficult for him to establish that the rejected reasons made an insignificant contribution to the principal reason, or that the remaining reason was of much more importance than the other reasons advanced.444 A somewhat similar statutory provision exists in St. Vincent and the Grenadines445 which requires the employer to be put to proof as to the reason for the dismissal. The St. Lucia446 legislation is quite explicit and states that ‘in any claim for unfair dismissal it shall be for the employer to prove the reason for dismissal and if the employer fails to do so, there shall be a conclusive presumption that the dismissal is unfair’. The position is much the same in Grenada.447 In both jurisdictions,448 however, the burden switches to the employee to show the reason which made the continuation of the employment relationship unreasonable, if constructive dismissal is the mode of termination. In Antigua and Barbuda, there is no explicit statutory clarification offered as to whether the burden of proof lies on the employer to show that a valid reason for dismissal was given, although it could be argued that the fact that they are required to provide a reason in the written statement of dismissal could be extended to encompass the view that the burden of proof rests on them. This indication is indeed critical, as the employer’s inability to prove that he had good cause for dismissing the employee is a major plank of the requirement, and would prima facie result in a finding that the dismissal was unfair. In Cable & Wireless (West Indies) Limited v Hill et al.449 the Industrial Court held the view that, within the ambit of Section C58 of the Labour Code, the burden of proof was on the company to show just cause for dismissing the respondents. Berridge JA helpfully opined, relying on the dicta in Jupiter General Insurance Co. v Shroff,450 that: the burden of proof was on the company to show ‘just cause’ for dismissing the employees and that since summary dismissal constituted a ‘strong measure’ the standard of proof should be strict, persuasive and convincing. Further notwithstanding the fact that this is a matter of a civil nature requiring a standard of proof on a balance of probabilities, since the matters to be proved 443 In order to identify the principal reason for dismissal, the tribunal must examine all the circumstances rather than the reason which the employer attributes to instigating the dismissal, as this may have been some other less significant occurrence. Even if the employer does not communicate the true reason for dismissal to the employee, as long as the employee is advised of a reason at the time of dismissal or when he is given notice, the employer would have discharged his burden of proof, and it remains a matter for the tribunal to discover the principal reason for dismissal as a question of fact; see Cable & Wireless (WI) Ltd v Hill (1982) 30 WIR 120 (CA). 444 Smith v City of Glasgow District Council [1987] IRLR 326 illustrates the House of Lords’ disapproval of an employer citing multiple reasons for dismissal as a defence tactic. 445 Protection of Employment Act Section 18. 446 Labour Code Section 158(1). 447 Employment Act Section 81(1). 448 St. Lucia Labour Code Section 158(2); Grenada Employment Act Section 81(3). 449 (1982) 30 WIR 120 (CA) [AG 1982 CA 3]. 450 [1937] 3 All ER 67. 224 Commonwealth Caribbean Employment and Labour Law were of such a grave and weighty nature, they would expect the evidence to be correspondingly cogent and weighty in nature and content.451 A similar approach was taken by the High Court of St. Vincent and the Grenadines in Young v Bank of Nova Scotia,452 where Mitchell J stated that: I conclude that the burden of proof … in matters of unfair dismissal … is on the employer and not on the employee. It could not have been the intention of the legislature for an employee to have to prove (unfair dismissal) … An employee need only show that there was a dismissal and that she complains that it was unfair.453 It should, however, be noted that, in some jurisdictions within the Commonwealth Caribbean, the issue of the burden of proof in relation to reason for the dismissal is not a sanitised concept454 which is clearly delineated from the issue of whether the employer acted reasonably in the circumstances of the dismissal. Thus, in practice, the issues are often conflated and the decision regarding the reason and the reasonableness for unfair dismissal is construed as one fluid transaction to be discerned by viewing the facts of each case. This is in contrast with the UK position, where these are separate and distinct matters with separate burdens of proof;455 the burden of proof in ascertaining reasons for dismissal is on the employer, whereas the burden of proving reasonableness is neutral, with the Employment Tribunal being required to discharge it by reference to the facts of each case. Test of fairness/reasonableness for unfair dismissal456 Once the reason for the dismissal is established, the focus will be to ascertain whether the employer has acted in a fair or reasonable manner in relying on this reason to effect dismissal.457 This is usually the purview of the adjudicatory body (Industrial Court, Tribunal, Hearing Officer, Labour Commissioner or Decisional Officer) which is charged with the responsibility of determining this fact. In deciding what is reasonable in the circumstances, the adjudicatory body ought not to be circumscribed by legal jargons but should look to equity. The matter is succinctly enunciated by Donaldson LJ in Union of Construction, Allied Trades and Technicians v Brain:458 ‘equity here means common fairness … The tribunal has to look at the question in the round and without regard to lawyers’ technicalities. It has to look at it in an employment and industrial relations context.’459 This will mean that adjudicators may therefore come to differing conclusions on what may appear to be similar factual scenarios. This should not be cause for concern when viewed in light of the fact that each case is being decided on its own merits, 451 Ibid. at 129. 452 Civil Suit No. 448 of 1998 (unreported) delivered January 28, 2000 [VC 2000 HC 4]; see also Mathews v Bank of Bermuda Limited Suit No. 46 of 2010 (unreported) delivered August 20, 2010 [BM 2010], where Kawaley J indicated that in accordance with Section 38(2) of the Bermuda Employment Act ‘it is for the employer to prove the reason for dismissal and if he fails to do so there is a conclusive presumption that the dismissal is unfair’. 453 Ibid. at para 15. 454 See, for example, Section 204 Belize Labour Act which simply states that ‘in a claim or complaint arising out of the dismissal or termination of a worker the standard of proof required of the worker shall be on a balance of probabilities (civil standard)’. 455 See discussion in Jefferson, M. (2000) Principles of Employment Law (4th Ed., Cavendish Publishing) at p. 297. 456 See generally Elias, P. (1981) ‘Fairness in Unfair Dismissal: Trends and Tensions’ 10 ILJ 201-217. 457 See Smith, I. and Baker, A. (2010) Smith and Wood’s Employment Law (10th Ed., Oxford University Press) at 454: ‘In applying the test of fairness, the tribunal must consider the reasonableness of the employer’s conduct, not the injustice (or lack of it) done to the employee.’ 458 [1981] ICR 542, [1981 IRLR 224. 459 Ibid. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 225 taking into account the unique circumstances of the particular actors on the stage of the employment relationship.460 Indeed, as noted in Duffy v Yeomans & Partners Ltd,461 there is grave danger of hard and fast rules becoming more than factors to be considered in reaching a decision that an employer has acted reasonably in the circumstances of each case, and this position should be eschewed. In Iceland Frozen Foods v Jones462 the UK Employment Appeal Tribunal provided guidelines to be adopted by an adjudicatory body in coming to conclusions regarding the question of reasonableness as provided for by section 98(4) of the UK Employment Rights Act. These include (1) examining the words of the specific statutory provisions, (2) considering the reasonableness of the employer’s conduct (not simply whether the tribunal thought that the dismissal was unfair), (3) not to substitute the tribunal’s decision as to what was the correct course that should have been taken by the employer, (4) in many (though not all) cases there is a ‘band of reasonable responses’ to the employee’s conduct where one reasonable employer might have adopted one view, while another may also quite reasonably take another view, and (5) the function of the tribunal as an industrial jury is to determine whether, in the particular circumstances of each case, the decision to dismiss fell within the band of reasonable responses which a reasonable employer would have adopted. There has been some debate regarding whether, in operationalising the so-called ‘range of reasonable responses’ test, the adjudicatory body ought to be guided by an objective or subjective approach. Although it appeared that the earlier UK employment tribunal judgements favoured objective criteria,463 the current (and, in the opinion of Smith and Baker, the correct) approach to such determinations ‘… must lie in a combined approach, namely that the tribunal must gauge the employer’s conduct by some objective yardstick but at the same time take into account the honest belief of the employer where relevant’.464 The UK case of Post Office v Foley; HSBC Bank Plc v Madden465 exemplifies these guidelines; there it was held that the employer’s decision to dismiss a post office worker who asked for time off to attend to his wife, but was thereafter seen in a public house half an hour later, was within the range of reasonable responses justifying the employer’s decision to dismiss in light of all the circumstances. Within the Commonwealth Caribbean jurisdictions, statutory provisions have addressed this issue with varying degrees of specificity. Thus, for example, the Bahamian Employment Act466 simply indicates that ‘the question of whether the dismissal is fair or unfair is to be determined in accordance with the substantive merits of the case’. Similarly, in Grenada the relevant provision in the Employment Act467 states that ‘… in addition to proving that an employee was dismissed for the reasons stated in Section 74(1) [potentially fair reasons] an employer must also show that in all the circumstances of the case he acted with justice and equity in dismissing the employee’. In Barbados the provision in the Employment Rights Act468 recites ‘… where the employer has fulfilled the requirements of subsection (1) [potentially fair reason for dismissal], the question of 460 See Kent CC v Gilham [1985] ICR 227, where the court held that decisions of the employment tribunals were not binding on other tribunals on this basis. 461 [1995] ICR 1, [1994] IRLR 642. 462 [1982] IRLR 91. 463 Bessenden Properties Ltd v Corness [1977] IRLR 338. 464 See Smith, I. and Baker, A. (2010) Smith and Wood’s Employment Law (10th Ed., Oxford University Press) at p. 457. 465 [2001] 1 All ER 550. 466 Section 35. 467 Section 81(2); see also Section 73(2) dealing with Disciplinary Procedures: ‘ In deciding whether the employer acted reasonably regard must be had to the nature of the violation, the employee’s duties, the penalty imposed by the employer, the procedures followed by the employer the nature of any damage incurred and the previous conduct of the employee and circumstances of the employee.’ 468 Section 29(4). 226 Commonwealth Caribbean Employment and Labour Law whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee’. These provisions recognise the importance of the reasonableness of the action taken by the employer, and express this requirement in relatively simple language, where much will depend on the interpretation given to them by the adjudicating body. The principle is also embodied in the Antigua and Barbuda Labour Code469 and the St. Vincent and the Grenadines Protection of Employment Act,470 which contain relatively similarly worded provisions. Thus the legislation enjoins the relevant adjudicatory body in these jurisdictions to apply the following test in deciding whether or not a dismissal was unfair: … whether or not, under the circumstances, the employer acted unreasonably or reasonably but, even though he acted reasonably, if he is mistaken as to the factual basis for the dismissal, the reasonableness of the dismissal shall be no defence, and the test shall be whether the actual circumstances which existed, if known to the employer, would have reasonably led to the employee’s dismissal. The provision of the Antiguan legislation was examined by the Privy Council in Sundry Workers v Antigua Hotel and Tourist Association,471 where the board was asked to examine whether the decision of the Industrial Court that the dismissal of certain hotel workers were unfair should be impugned, as was the view of the Court of Appeal. After examining the wording of Section 58 of the Labour Code, the Privy Council came to the conclusion that the Industrial Court was correct in finding that the workers’ involvement in an illegal strike ought properly to be examined in light of the existing circumstances. This included the fact that the Minister of Labour’s referral of the dispute which occasioned the strike to the Industrial Court (which made a declaration that the strike was illegal) occurred after the unions acting on behalf of the workers had previously issued a strike notice. Further, upon being informed of this move, the unions advised the workers to return to work immediately and many made efforts to do so, with the employer obstinately refusing to allow them to resume duties, unless they abandoned their rights under their existing contract and entered into new employment contracts. Also noteworthy was the fact that neither the unions nor the individual workers were ever criminally prosecuted in respect of the industrial action which the employers purported to dismiss them for. The Privy Council ruled that the Industrial Court was seized of abundant evidence at the hearing of the substantive matter to make the decision that the employers acted unfairly in dismissing the workers and that the Court of Appeal was not entitled to reverse its decision. This was on the basis that the issue was predominantly one of fact for the Industrial Court to determine. The adjudicatory body must therefore examine whether the employer acted reasonably in light of the actual facts which existed at the time of the dismissal. Thus, even if he acted reasonably on the basis of a mistaken belief, this will not absolve the employer of liability for an unfair dismissal. This legal mandate was vividly illustrated in Cable & Wireless (West Indies) Limited v Hill et al,472 where the Industrial Court of Antigua and Barbuda found that the employees of Cable and Wireless were unfairly dismissed. The employers were clearly of the view that the said workers were responsible for damage caused to the company’s equipment (rooted in the fact of an acrimonious state of employer/employee relations at the time), which led to a disruption in telecommunication services. However, according to the Court of Appeal it was imperative that the employer provided ‘cogent and specific evidence before the Court could draw the conclusion it 469 Section C58. 470 Section 18. 471 (1993) 42 WIR 145. 472 (1982) 30 WIR 120. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 227 was invited to draw’.473 The case also alluded to the fact that proper disciplinary procedures were not undertaken which could have assisted in eliciting relevant information to prove the employer’s case. Thus the importance of procedural fairness was underscored. Dismissal procedures/procedural fairness In the second stage of the unfair dismissal determination, the adjudicating body must also inquire into the procedure used in dismissing the worker/employee. These procedures may be enshrined either in statute, codes of practice, works rules or collective labour agreements. At a basic intrinsic level of common law fairness, the concepts of natural justice,474 due process and particularly the right to warnings and a fair hearing are also in issue. This concept is also referred to as ‘procedural fairness’. The importance of having a transparent and fair procedure in undertaking dismissals provides an opportunity not only to ascertain vital information that may ground an eventual dismissal but also for second thoughts and conciliation which could decrease the instances of industrial conflict.475 In the UK, the approach taken in determining whether the employer has met the procedural requirement rests in the provisions of the ACAS Code of Practice for Discipline and Grievance Procedures and the principle laid done in Polkey v AE Dayton Services Ltd.476 Both the employer and the employee are required to follow the guidelines set out in this Code, failing which any compensation ordered by the Employment Tribunal may be reduced. Additionally, following the Polkey guidelines the Tribunal must also determine whether it was reasonable for the employer to have adopted the procedure they did at the time, in light of all the circumstances. In Sainsbury Supermarket Ltd v Hitt,477 the Court of Appeal affirmed the approach that the procedure itself must also be reasonable. It held that tribunals should not substitute their own views as to what was a reasonable and adequate investigation, but rather (in the words of Mummery LJ) they should apply ‘the objective standard of the reasonable employer as to what was a reasonable investigation’.478 In the Commonwealth Caribbean, the approach of mandating statutory procedures to be followed in cases of disciplinary and dismissal matters has also been adopted. Thus in Guyana,479 Dominica,480 Belize,481 St. Vincent and the Grenadines,482 St. Lucia483 and Antigua and Barbuda,484 various provisions have been enacted which stipulate, in particular instances, what specific provisions are to be adopted as they relate to number and types of warning (written or oral) as well as making provision for hearings before any disciplinary action or dismissal is undertaken. The effect of these provisions, coupled with the operation of natural justice principles, is that the employer may find themselves in a deleterious position if they do not observe the same, and an employee mounts a claim for unfair dismissal. It should also be noted that the statutory procedures may be complemented by internal ones implemented by the employer, especially in 473 Ibid. 474 See discussion in Carty, H. (1989) ‘Dismissed Employees: The Search for a More Effective Range of Remedies’ 52 Modern Law Review 449. 475 See Honeyball, S. (2008) Textbook on Employment Law (10th Ed., Oxford University Press) p. 180. 476 [1987] IRLR 503. 477 [2003] IRLR 23. 478 Ibid. 479 Termination of Employment and Severance Pay Act Section 11. 480 Protection of Employment Act Sections 6-9. 481 Labour Act Section 44. 482 Protection of Employment Act Section 5(2). 483 Labour Code Section 135. 484 Section C 59. 228 Commonwealth Caribbean Employment and Labour Law larger and more organised establishments. There is, in principle, no difficulty with this, and adjudicatory bodies usually also examine these provisions (where they exist) along with the statutory provisions in coming to their conclusions.485 The recent Barbados Employment Rights Act now arguably provides the most prescriptive legislated provisions regarding the operation of procedural fairness within the region. Section 29(4) and (5) states: (4) Where the employer has fulfilled the requirements of subsection (1), the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether– (a) … (b) the employer complied with the rules set out in Part A of the Fourth Schedule. (5) Notwithstanding subsection (1), an employer is not entitled to dismiss an employee for any reason related to– (c) the capability of the employee to perform any work; or (d) the conduct of the employee, without informing the employee of the accusation against him and giving him an opportunity to state his case, subject to the Standard Disciplinary Procedures and the Modified Disciplinary Procedures set out in Parts B and C respectively of the Fourth Schedule. The Schedule referred to gives details of procedures to be taken into account as it relates to discipline and dismissal, indicating that discipline must be applied progressively, and that there should be no dismissal for a first offence except in cases of gross misconduct. It also provides that warnings should be given and opportunities given for improvement of behaviour, and that warnings (oral and written) should be given before the use of stronger measures in cases which do not involve gross misconduct. Written warnings which are more than twelve months old are to be expunged from the employee’s record.486 The Fourth Schedule creates a ‘Standard Disciplinary Procedure’487 itemising a stepped procedure, which includes requiring a statement of grounds for action and invitation to meetings to be given. The procedures for the conduct of the meetings and the modus operandi for making appeal of decisions are also outlined. It also creates a ‘modified procedure’,488 which is basically a summarised version of the standard procedure. The obligation imposed on an employer to give a warning is one of the most critical improvements of the employment law regime introduced by the Employment Rights Act. The employee in Barbados is now the beneficiary of a statutory shield against unfair dismissal and has a legitimate expectation to be given a reasonable opportunity to improve his performance, to take advantage of disciplinary proceedings or, at the very least, to avoid dismissal for a firsttime breach except for gross misconduct. As it relates to the natural justice requirement, Rawlins JA in Epicurean Limited v Taylor489 provides guidance on the concept: The principles of natural justice are well known, trite and ancient. It is said that rules that required a fair hearing before impartial adjudicators can be traced to ancient times, were known 485 See Kitson Browne v Jumby Bay Resorts Reference No. 9 of 2011 (unreported) Antigua Industrial Court delivered July 26, 2012. 486 Employment Rights Act Fourth Schedule Part A. 487 Employment Rights Act Fourth Schedule Part B. 488 Employment Rights Act Fourth Schedule Part C. 489 Civil Appeal No. 4 of 2003 (unreported) delivered May 26, 2004 [AG 2004 CA 2]; paragraph [33]. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 229 medieval precedents and reached a ‘high water-mark’ in their development in Dr. Bonham’s case (1610) 8 Co. Rep. 113b. Indeed, we were reminded that although their disobedience was obvious, even Adam and Eve were given the opportunity to speak in their defence before they were cast out from the Garden of Eden. It should be noted here that, instead of leaving it to be implied that these principles should be applied in particular cases, the St. Lucia legislation specifically provides that natural justice is pertinent in cases of employee misconduct.490 In the Commonwealth Caribbean the principle is highly utilised, especially in the context where there are no specific legislated provisions regarding the actual steps to be taken in terms of procedural fairness. Thus, in Premier Beverages v Edmeade Joyce491 the Antiguan High Court was moved to find that the claimant was unfairly dismissed in circumstances where, although he caused the company to lose a considerable sum based on his misconduct, the employer did not carry out a proper investigation, neither was the claimant told that his performance was under review nor given an opportunity to proffer any explanation. The matter was compounded by the fact that he was not given a hearing and was not told the reason for his dismissal. These are fundamental tenets of the principle which were not adhered to and will factor greatly into the decision taken by an adjudicator. Having outlined the approach to be taken by an adjudicatory body to the issues of ascertaining the precise reason for the dismissal, and how thereafter to view the reasonableness or fairness of the employer in undertaking the dismissal itself, we now turn to the various categorisations of dismissal and how the foregoing principles are applied in actuality. Automatically fair dismissals It would appear that, in most regional jurisdictions, there is no clear delineation of what circumstances should be considered as ‘automatically fair dismissals’, and it is left up to the relevant adjudicatory body to discern what would fall into this analogous category by reference to the context in which the statutory provisions are designed.492 However, it can be adduced that, if an employee is terminated at the expiration of a fixed-term contract in Antigua and Barbuda493 – or if, in the Bahamas,494 an employer advises a replacement worker in writing at the commencement of employment that he will be terminated upon the return of another employee who is absent for any reason and does dismiss when the employee recommences work – there can be no valid claim for unfair dismissal, as these terminations are automatically fair. St. Lucia’s Labour Code495 also indicates that, where the employer dismisses for breaches of a fundamental term of the contract of employment, this is not to be construed as an unfair dismissal, arguably making this an automatically fair ground for dismissal. This ground could possibly be problematic, as fundamental breach of contract is not defined. 490 Labour Code Section 140. 491 Claim No ANUHCV 2006/0266 Antigua and Barbuda High Court (unreported) delivered January 28, 2009; see also Joanne Defreitas & Others v Sticky Wicket Restaurant and Bar Antigua Industrial Court Reference No. 15 of 2004 (unreported) delivered April 22, 2010, where the court was of the view that the workers were not given the benefit of natural justice based on the fact that no investigations were conducted. 492 Antoine is of the view that ‘when one reads the [Antiguan] unfair dismissal clause in conjunction with other provisions of the Labour Code, such as the prohibition against dismissal for reasons of trade union membership or activities, examples may be discerned’. 493 Labour Code Section C57. 494 Employment Act Section 39. 495 Section 139. 230 Commonwealth Caribbean Employment and Labour Law Automatically unfair dismissals Antoine posits that ‘with unfair dismissal, there is a general presumption of a right to work which co-exists with the presumption that all dismissals are unfair, unless proven otherwise’.496 This, in essence, is the loose parallel of the automatically unfair dismissal provisions in the UK. Some Commonwealth Caribbean countries497 have cast the general unfair dismissal principles in this frame by indicating, through legislation, that employees should be not be dismissed on certain specified bases which are manifestly illegitimate and do not constitute a valid or good and sufficient reason for dismissal or disciplinary action, once proved. The more common stipulations include trade union membership,498 participation in union activities,499 pregnancy and discrimination on the basis of ‘race, colour, sex, marital status, religion, political opinion, national extraction or social origin’.500 It is noteworthy that in St. Lucia,501 where the contract of employment is terminated by the employee in circumstances where the employer’s conduct made it unreasonable to require him to continue the employment relationship (constructive dismissal), the employee shall be deemed to be unfairly dismissed and is entitled to compensation in conformity with the provisions of the Labour Code. This could quite possibly be interpreted as another type of automatically unfair dismissal in that jurisdiction.502 The following table gives a more panoramic view of the types of dismissal which are considered as automatically unfair in some regional countries. It should be noted that the selected jurisdictions provide some unique bases upon which the worker should not be prejudiced, predicated no doubt to some degree upon the specialised employment conditions existing within the country itself. The Barbados legislation also stipulates that an employer will be adjudged to have dismissed a worker automatically unfairly if the termination takes place while the employee is absent from work for less than a year and is certified by a medical practitioner to be incapable 496 Antoine, R.-M. B. (1994) ‘Redundancy in the Context of Unfair Dismissal – A Comparative Analysis of the Antigua Model’ 4 Caribbean Law Review 412-428 at 412. 497 British Virgin Islands Labour Code Part V Section 82; Bermuda Employment Act Section 28; St. Vincent and the Grenadines Protection of Employment Act Section 16; Grenada Employment Act Section 74(2); Guyana Termination of Employment and Severance Pay Act 1997 Section 8(1); St. Kitts and Nevis Protection of Employment Act Section 11; Dominica Protection of Employment Act Section 10; Belize Labour Act Section 42; St. Lucia Labour Code Section 131; Montserrat Labour Code Section 62. 498 This also constitutes the criminal offence of union busting under the LRIDA 1975 Section 4. Note Regina v Norman Reittie, Royden Reittie & Century Corporation Limited (1990) 27 JLR 110 Court of Appeal, Jamaica, and R v McConnell et al. [JM 2001 CA 46] Criminal Appeal No. 17 of 1999. 499 Consider Antigua Trades and Labour Union v Walter Civil Appeal No. 3 of 1970 (unreported) delivered April 24, 1972 [AG 1972 CA 2], where it was argued that the dismissal of the General Secretary of the appellant Union – without notice being given to the membership, without any specific charge being laid against him, and without him being given any opportunity to speak in his defence – breached all fundamental rules of procedure and natural justice. 500 ILO Recommendation No. 119 Art 2(3). See also Guyana’s Termination of Employment and Severance Pay Act 1997, section 8(1) which has incorporated this concept almost verbatim, delineating and prohibiting reasons which do not constitute good and valid reasons for dismissal. Cumberbatch, J. (1997) ‘The Termination of Employment – Statutory Reform in Guyana’ Vol. 22, WILJ 140 at 141 credits this Guyanese statute with introducing a novel Commonwealth Caribbean variation of the concept of unfair dismissal (that is, the Act makes provision for substantive reasons for dismissal and procedural reasonableness of the dismissal). 501 Labour Code Section 132. 502 Arguably the same is true for Grenada; see Section 77 Employment Act. Categorisation 503 See Safety and Health Act Section 104. 504 See Employment Rights Act Section 30(2) for full description of such duties which include jury service or other civic duty imposed by law, service in the Defence Force Reserves and representing the country in sporting events at the regional or international level. 505 See Perriott v Belize Telecommunications Limited and Belize Telemedia Ltd Suit No. 142 of 2007 (unreported) delivered June 11, 2010 [BZ 2010 SC 35]. 506 See St. Lucia Criminal Records (Rehabilitation of Offenders) Act 2004, No. 2. 503504505506 Employment Act Pregnancy, trade union activities, taking part in lawful industrial action Sections 35 and 38 Barbados Employment Rights Trade union activities, becoming, acting or seeking to be a worker representative, making a complaint or being a party to proceedings Act Section 30(1)(c) which allege employer violation of the law or breach of employment contract, HIV status or other life-threatening disease, refusing to carry out hazardous work,503 disability without being offered suitable alternative accommodation, national duties,504 refusal to carry out unlawful orders, pregnancy or reason connected therewith, reason related to race, colour, gender, age, marital status, religion, political opinion or affiliation, national extraction, social origin or indigenous origin, family responsibility Belize Labour Act Section Union membership and participation in union activities,505 seeking office as or acting as worker representative, filing complaint 42 against employer involved in violation of law, race, colour, sex, family responsibility, religion, nationality, indigenous population, social origin, political opinion, worker’s physical structure, disability or age (subject to provisions regarding retirement), pregnancy or reason connected therewith, sexual harassment, HIV status, temporary absence from work due to illness or injury not caused by own negligence and certified by registered medical practitioner, compulsory military service, participation in industrial action, any other reason which Minister by Order publishes in the Gazette Dominica Protection of Trade union membership, participation in trade union activities, filing complaint against employer who acts in violation of the Employment law, race, colour, sex, marital status, religion, political opinion, national extraction, being absent from work on Saturdays or Act Section 10 Sundays to take part in religious worship St. Lucia Labour Code Race, sex, religion, colour, ethnic origin, national extraction, indigenous origin, social origin, political opinion or affiliation, trade Section 131 union affiliation or activity, disability, sexual orientation, serious family responsibility, marital status, age (subject to contractual or statutory retirement provisions), maternity leave benefits, pregnancy or reason connected therewith, exercise of organisational or associative rights, temporary absence from work because of sickness or injury (unless it occurs frequently and is found to be abuse of sick leave), perception that the employee has or is carrying HIV or AIDS (unless worker engaged in work established as putting others at risk of contracting HIV/AIDS or inherent requirement of the job permits removal to other duties), compulsory military service, national service, public duty, or civic obligations, removing oneself from a work situation which they reasonably believes presents a situation of imminent or serious danger to life, health or safety, participation in industrial action (including strikes), filing complaint against employer who acts in contravention of the Code, refusal to do work of other workers engaged in industrial action or work that does not form part of one’s contract of employment, a spent conviction506 Bahamas Jurisdiction Legislation Table 8 Examples of Automatically Unfair Dismissal Categorisation in the Selected Commonwealth Caribbean Countries 232 Commonwealth Caribbean Employment and Labour Law of work for the period because of an occupational disease or work-related accident.507 In circumstances where the employment is terminated for absences related to non-job-related illnesses, a similar condition applies.508 Potentially (prima facie) fair dismissals By far the most important, and commensurately the most problematic, area of adjudging whether or not an employee has been unfairly dismissed is in the category of so-called ‘potentially (prima facie) fair’ dismissals. In the UK, these prospective latent escape routes for the employer include the employees’ lack of capability or qualification, their (mis)conduct, a redundancy situation, the statutory legality of their continued employment, and the catch-all category of ‘some other substantial reason’.509 Antoine posits that ‘in these categories … the court must determine on the basis of reasonableness, whether the dismissal was unfair’.510 In the Commonwealth Caribbean, similar principles exist, although not necessarily outlined in this exacting manner.511 Barbados512 and Antigua and Barbuda,513 however, have adopted analogous groupings. The latter’s statutory provision is outlined as follows: (1) A dismissal shall not be unfair if the reason assigned by the employer therefor– (a) relates to misconduct of the employee on the job, within the limitations of section C59(1), (2), (3) and (4);514 (b) relates to the capability or qualifications of the employee to perform work of the kind he was employed to do, within the limitations of section C59(5);515 (c) is that the employee was redundant; (d) is that the employee could not continue to work in the position he held without contravention (on his or on the employer’s part) of a requirement of law; or (e) is prolonged illness or some other substantial reason of a kind which would entitle a reasonable employer to dismiss an employee holding the position which the employee held: Provided, however, that there is a factual basis for the assigned reason. The abovementioned designations will be further expounded below. 507 Employment Rights Act Section 30(1)(a); the period in consideration is 12 consecutive months or an aggregate of 12 months during a 24-month period. 508 Employment Rights Act Section 30(1)(b); the period in consideration under this head is 12 consecutive months or an aggregate of 12 months during a 24-month period. 509 UK Employment Rights Act Section 98. 510 Antoine, R.-M. B. (1994) ‘Redundancy in the Context of Unfair Dismissal – A Comparative Analysis of the Antigua Model’ 4 Caribbean Law Review 412-428 at 414. 511 The Bahamas Section 37 Employment Act; Grenada Section 74(1) Employment Act – also stated as operational requirement of the enterprise (redundancy), breach of contract of employment or disciplinary rules; Belize Section 41(2) Labour Act – stated as wilful disobedience of lawful orders, lack of skill which worker expressly or by implication warrants himself to possess, habitual neglect of duties, absence from duty without permission from the employer or without other reasonable excuse; St. Lucia Sections 129, 133, 136, 138, 139, 143, 145, Labour Code; Dominica Sections 4 and 5 Protection of Employment Act; St. Kitts and Nevis Section 5 Protection of Employment Act; St. Vincent and the Grenadines Sections 5, 9 and 12 Protection of Employment Act; and Guyana Sections 11 and 18 Termination of Employment and Severance Pay Act. 512 Employment Rights Act Section 29(1)(b) and (2). 513 Labour Code Section C58. 514 Section C59(1) and (2) refers to termination for misconduct that is so serious that the employer cannot reasonably be expected to take any other course than termination. 515 Section C59(3) refers to failure of the employee to perform his duties in a satisfactory manner. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 233 Capability or qualification In this category, the employer may justifiably dismiss a worker if they lack the requisite skill, aptitude, health or other physical or medical qualities required to undertake the job for which they were employed, subject to the test of reasonableness and the use of procedural fairness. In the Commonwealth Caribbean, in addition to Antigua and Barbuda, the matter is legislatively addressed in St. Vincent and the Grenadines,516 Belize,517 St. Lucia,518 Dominica519 and Barbados.520 Issues to be examined in such cases include whether the incompetence of the employee was pointed out to him,521 if he was afforded training522 and mentoring, or whether he was given a chance to improve his performance before the decision to dismiss was in fact taken. It should be noted that one act of incapability would not normally warrant dismissal, but this is also dependent on the nature of the job in question.523 In relation to skill and aptitude to undertake the assigned duties, two approaches appear to be taken by the regional statutes. Attention is placed either on the possession of a skill or qualification or whether the employees have performed their function satisfactorily which addresses their capability. The statutory provision in St. Vincent and the Grenadines which speaks to capability or qualification524 sets out that the employer should give the employee at least two written warnings regarding the challenge being faced in this regard; and that, if the issue is not rectified within three months thereafter, dismissal may be contemplated. However, this jurisdiction also specifies a procedure for ‘unsatisfactory performance’525 which could also conceivably be related to the capability of the worker. In this regard the employer is mandated to provide oral or written warnings over a six-month period where the worker is advised of the nature of the unsatisfactory performance and the possible consequence of such continued behaviour. In Dominica, a written warning must be given to the worker with respect to alleged unsatisfactory performance, with a three-month window for improvement being provided before dismissal may be contemplated. A similar position exists in the Antigua and Barbuda legislation.526 In St. Lucia, the statute provides lucid guidance on the steps to take when unsatisfactory performance is in issue. The employer is enjoined not only to give written warnings, but also to give appropriate instructions to correct the unsatisfactory performance. If, thereafter, the employer has occasion to warn the employee a further two times, and within one month subsequently the worker is still unable to perform the duties suitably, the employer may consider dismissal.527 If, however, the unsatisfactory performance or incompetence is due to the reasonable effects of the aging process, dismissal should not be made for unsatisfactory performance. Rather, the employee should be either offered early retirement or redeployed to another position within the establishment without loss of benefits.528 It should be noted that, where the termination is in 516 Protection of Employment Act Section 9(2)(d). 517 Labour Act Section 41(2)(c). 518 Labour Code Sections 136, 137, 138. 519 Protection of Employment Act Sections 6(b) and 9. 520 Employment Rights Act Section 29(2)(a); see also Section 29(3) – in subsection (2)(a), ‘capability’, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality. 521 James v Waltham Holy UDC [1973] IRLR 153. 522 Davidson v Kent Meters Ltd [1975] IRLR 145. 523 Alidair Ltd v Taylor [1978] IRLR 82. 524 Protection of Employment Act Section 9(2)(d). 525 Protection of Employment Act Section 9(2)(b) – note this is twinned with misconduct, and the oral notice (if applied) must be given in the presence of two credible witnesses. 526 Labour Code Section C59(5). 527 Labour Code Section 136; a similar position exists in Belize Labour Act Section 44(4) which indicates the need for written warnings and improvement instructions. 528 Labour Code Section 137. 234 Commonwealth Caribbean Employment and Labour Law consequence of the employee not possessing the qualification or skill which he purported to hold to undertake the duties for which he was employed, this is not to be construed as an unfair dismissal.529 This appears to allude to the position where an employee had not been forthright in the employment process. As it relates to the issue of health-related incapability, an employer’s approach to ill-health absence which could lead to dismissal should be treated with much more flexibility, compassion and common sense than may be required in other areas of the employment relationship. In certain circumstances (as discussed in Chapter 5), the state of the employee’s health may cause the employment contract to be frustrated. However, in other cases, the principles as enunciated in East Lindsey District Council v Daubney530 are relevant. The adjudicatory body must examine whether it was reasonable for the employer to wait any longer before dismissing the employee, in light of the nature of the illness, the actual and potential length of the absence, the circumstances of the individual employee, the urgency of the need to fill the employee’s job, and the size and nature of the employer’s business. The employer must also carry out a full investigation of the circumstances surrounding the employee’s illness with a view to making a reasoned decision on whether or not to dismiss. Thus in Liat v Greenridge531 the employee, an airline pilot who had previously been on sick leave because of an accident, refused to undergo psychiatric examination which was thought necessary because of his erratic behaviour. On this ground he was subsequently dismissed. The Court of Appeal reversed the Antiguan Industrial Court’s ruling that the dismissal was not unfair. The Appeal Court stated that the employer’s request for a psychiatric examination was a reasonable request as part of its investigation in all the circumstances of the case. It is also best practice to discuss the issue with the employee before proceeding with the dismissal although, in some cases where the employee considers they are improving, the employer need not consult.532 The employer should also seek as far as possible to assist the affected employee to get back to work but, failing any improvement of the employee’s condition, they may consider dismissal only after the employee has been informed via warnings or otherwise that they are in danger of being dismissed if there are no improvements in their attendance.533 In the Commonwealth Caribbean, as will be recalled in Barbados (subject to certain qualifications), illness is considered as an automatically unfair dismissal once proved.534 In St. Lucia a specific regime is statutorily mandated for illness dismissals. Thus, Section 143(1) of the Labour Code indicates that: Where an employee has been– (a) (b) continuously ill for a period exceeding twenty six weeks such that he or she is no longer capable of adequately performing his or her job; or injured in a manner that makes it difficult or impossible for him or her to continue to perform his or her job; the employer, after a registered medical practitioner has certified such incapacity and it is determined that the employee is incapable of performing his or her job, may dismiss the employee if such incapacity presents an undue hardship to the business or enterprise. 529 Labour Code Section 138; the Belize Labour Act Section 41(2)(c) also speaks to any lack of skill which the worker expressly or by implication warrants himself to possess as being a good and sufficient reason to dismiss. 530 [1977] IRLR 181. 531 Civil Appeal No. 13 of 1989 (unreported) delivered February 25, 1991 [AG 1991 CA 1]; see also London Fire & Civil Defence Authority v Betty [1994] IRLR 384. 532 See Eclipse Blinds Ltd v Wright [1992] IRLR 133. 533 International Sport Ltd v Thompson [1980] IRLR 340. 534 See discussion above on automatically unfair dismissals. Chapter 6: Statutory Dismissals – Redundancy, Severance and Unfair Dismissal 235 The legislation also addresses the issue of abuse of sickness absence, which may be considered as a manifestation of misconduct and is discussed below. Conduct/Misconduct The employer may purport to dismiss an employee for alleged conduct which is unacceptable within the context of the employment contract. As seen in Chapter 5, there are some behaviours that constitute gross misconduct and may occasion summary dismissal at common law. However, it is important to recall that, in the context of the unfair dismissal statutory provisions, the conduct itself is not the only determining factor to be considered; the procedural fairness requirement is very much in issue. Misconduct/conduct as a potentially fair reason for dismissal covers a mul

Caribbean Employment & Labour Law Textbook

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