I AM MINDFUL of the admonition: fools rush in where angels fear to tread, but fool or not there are some statements that I cannot allow to remain unchallenged lest they operate to mislead the public.
The DAILY NATION of May 21, 2015, purported to quote the chairman of the Employment Rights Tribunal (ERT), Mr Hal Gollop, as saying:
“This session will mark the beginning of a new jurisprudential era by which the old doctrine of wrongful dismissal has given way to that of unfair dismissal pursuant to the introduction of the Employment Rights Act (ERA).”
Mr Gollop is alleged to have said those words at the opening of the first case to be adjudicated by his ERT. Ever since then I was looking for a correction or even an apology from the NATION for misquoting the chairman, but so far I have seen none.
Misled
If that statement is correct, I would have misled countless people who have either sought my advice on problems in the workplace or those who have listened to me during talks on the state of industrial relations in this country. But before anyone relies on that quotation or dismiss anything that I would have said to them about the new statutory remedy for unfair dismissal and the common law remedy for wrongful dismissal still being available to workers who lose their jobs, I suggest that they seek independent legal advice.
Common law is English law that was developed by judicial precedent (court decisions) rather than by statute. As a British colony Barbados received the English common law. Also section 46 of the Interpretation Act states, “common law” means the common law of England. Our courts are therefore bound to follow the rigid English precedent when deciding cases of wrongful dismissal.
In 1971, Lord Reid in the case Malloch vs Aberdeen Corporation said:
“At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant’s only remedy is damages for breach of contract.”
In an earlier 1964 case, Ridge vs Baldwin, the court ruled that the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract.
In the cases cited above, “master and servant” means employer and employee.
Essence
The cases capture the essence of the employer/employee relationship in Barbados prior to the coming into force of the Employment Rights Act in 2013. An employer could have given an employee adequate notice or pay in lieu of notice and dismiss the worker without compensation. The advent of the Employment Rights Act did not repeal the existing common law of wrongful dismissal. It merely superimposed new rights on those that were existing, which now gives a dismissed worker the option of going to court for wrongful dismissal or going before the ERT for unfair dismissal.
It should be noted that, according to section 8 of the ERA, a remedy for unfair dismissal is only available through the tribunal, and that an application must be made within three months of the dismissal. On the other hand, a claim for wrongful dismissal must be filed in either the Magistrates’ Court or the High Court, but this must be done within six years of the alleged breach of contract.
Prior to the ERA an employer was not obliged to hear an employee in his own defence, and could dismiss him on a month’s notice or on a month’s pay in lieu of notice. That still remains but if the employer does so, he runs the risk of paying compensation for unfair dismissal. This act has so protected the workers’ rights that an employer cannot now issue a warning, which is the lowest form of punishment, without first giving the worker the opportunity to be heard. However, these new rights mean nothing if workers are unable to access them either because the tribunal has a slow start or because the procedures for accessing these rights have proven to be cumbersome and unduly legalistic for the average man who does not have the means to pay a lawyer. Workers have new rights but it is almost impossible to access them. The old saying “while the grass is growing the horse is starving” is very applicable.
Caswell Franklyn is the general secretary of Unity Workers Union and a social commentator. Email caswellf@hotmail.com
