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EVERYDAY LAW: Tribunal’s role is to enforce rights


Cecil McCarthy

EVERYDAY LAW: Tribunal’s role is to enforce rights

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One of the changes introduced by the Employment Rights Act 2012 is the establishment of the Employment Rights Tribunal.

The role of this tribunal is very important to the effectiveness of the legislation because it is charged with the responsibility of enforcing the rights conferred on people by the act.

Its jurisdiction is limited to determining complaints made to it under the act and to “make awards and other decisions in relation to those complaints in accordance with its powers under [the] act” (See Section 7).

With respect to some aspects of its functioning, the tribunal is vested with similar powers to that of an investigatory commission under the Commissions Of Inquiry Act of Barbados. Specifically, it is provided that Sections 11, 12, 13, 14, 15 and 21 of the Commissions Of Inquiry Act shall apply to the determination of complaints by the tribunal with such modifications and adaptations as may be necessary.

Where there is a conflict between the Employment Rights Act and the Commission Of Inquiry Act, the Employment Rights Act prevails.

The above sections relate mainly to summoning of witnesses and the expenses and protection of witnesses appearing before the tribunal.

For example, Section 11(3) and (4), respectively, of the Commissions Of Inquiry Act provide as follows:

(3) A witness summoned under this section may be required by the commission to testify upon oath or affirmation.

(4) A witness summoned under this section must obey the summons as fully in all respects as if it were a subpoena issued from the High Court.

Perhaps the most significant of the provisions borrowed from the Commissions Of Inquiry Act are those related to the rules of evidence. Section 21 of the Commission Of Inquiry Act reads:

“21. (1) Subject to subsection (2), a commission may receive all relevant evidence, and in so doing it is not required to observe the rules as to the admissibility of evidence in a court of law.

(2) A commission shall not receive evidence if in its opinion the probative value is substantially outweighed by the danger of confusing the issue of causing undue waste of time.

(3) A commission may decline to receive any evidence which in its opinion ought to be excluded as irrelevant, unprofitable or unduly prejudicial.

The effect of the above provision is that the tribunal will not be obliged to follow the technical rules of evidence applied in courts of law, such as the “hearsay rule”.

These provisions are in keeping with the tradition with respect to employment tribunals established elsewhere. For example, in England the employment tribunals are not bound by any enactment or rule of law relating to admissibility of evidence in proceedings before the courts.

It should be noted that except in cases where sexual harassment is alleged, which are required to be held in camera, hearings of the tribunal shall be open to the public. (See Section 11 of the Employment Rights Act).

It is to be hoped that the locations chosen for hearings reflect the express intent of the legislation.

The constitution of the tribunal is set out in the Second Schedule to the act. It consists of nine members. Each member is required to have experience in either industrial relations or law. It must also have people with experience as representatives of employers and representatives of employees.

Three people shall be appointed by the minister responsible for labour. Three shall be nominated or appointed by the most representative organisation of employers; and three shall be nominated for appointment by the minister by the most representative organisation by employees.

It is the minister’s responsibility to appoint a chairman and deputy chairman who shall both be attorneys at law.

For the purposes of exercising its jurisdiction in respect of a particular complaint, the tribunal will comprise three people, namely:

(a) the presiding officer, who shall be either the chairman or deputy chairman of the tribunal;

(b) a member with experience as a representative of employees; and

(c) a member with experience as a representative of employers.

The experience elsewhere is that by far the most common complaints to the tribunal are related to claims of unfair dismissal.

• Cecil McCarthy is a Queen’s Counsel.

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