This article is written in response to a request from a member of the public who accosted me at the supermarket and asked that I discuss again the provisions of the Employment Rights Act as they apply to dismissal of workers at the National Conservation Commission (NCC).
Under the Employment Rights Act, 2012, redundancy is a fair reason for dismissal but who is made redundant and the manner in which it is done can result in the termination being unfair.
The act requires that Section 31(4), (5) and (6) be complied with in relation to a dismissal for redundancy. It requires the employer to carry out consultations with the affected employees or their representatives not later than six weeks before any of the affected employees are dismissed.
The act sets out the specific areas that the consultations must cover and focuses on the method of selecting the employees, the proposed method of carrying out the dismissals and any measures that the employer might be able to take to find alternative employment.
Consultations are mandatory where it is contemplated that the workforce of the business will be “reduced by ten per cent or any other significant number . . .”.
In the English case of Williams v Compair Maxam Ltd. (1982), the English Employment Appeal Tribunal (EAT) enumerated standards of behaviour that should guide employers in making selection of employees for redundancy. Browne-Wilkinson J., delivering the decision of the EAT, said:
“1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.
2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.
3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection, but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.
4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.
5. The employer will seek to see whether instead of dismissing an employee, he could offer him alternative employment.
The lay members stress that not all these factors are present in every case since circumstances may prevent one or more of them being given effect to.
But the lay members would expect these principles to be departed from only where some good reason is shown to justify such departure. The basic approach is that, in the unfortunate circumstances that necessarily attend redundancies, as much as is reasonably possible should be done to mitigate the impact on the workforce and to satisfy them that the selection has been made fairly and not on the basis of personal whim.”
The NCC is a statutory corporation and the provisions of the Employment Rights Act apply to it.
Even though the above-mentioned standards of behaviour are not principles of law and are subject to change consistent with prevailing norms of good industrial relations practice, it is expected that where they are departed from, that those decisions would accord with commonly accepted standard of fairness.
If employees consider that they have been treated unfairly, they should file a case with the Employment Rights Tribunal within three months of their termination.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to cnmcc@caribsurf.com.
