WHEN IT COMES to matters of labour legislation, very often practitioners in the field of industrial relations, labour law and human resources have to deal with misconceptions of the general public.
When presented with scenarios, we learn very quickly to ask follow-up questions to ensure that people are using the right terminology and painting a complete picture.
One classic example: an employee says they’ve been put on short time. You may then ask that person how many days they are now working, and the response would be that they worked five days in the past and now work four days per week.
Legally, short time is when an employee is earning less than half of the week’s wage. Therefore, working 32 hours per week is not short time. Even though the Employment Rights Act (ERA) was proclaimed on April 12, 2013, misconceptions have been circulating regarding the act and its application.
Some common myths include statements like: summary dismissal is no longer possible with the ERA; employees must be given seven days’ notice of a disciplinary hearing; and if an employee is made redundant and within six months the firm is rehiring, the company must rehire the employee.
This article will address these three areas as space permits.
Fourth Schedule, Part C – Modified Disciplinary Procedures
The employer must set out in writing the alleged misconduct of the employee which led to the dismissal; the basis for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct; and the right of the employee to appeal against dismissal.
Summary dismissal is defined as dismissal without notice. This action should only be considered in cases involving acts of “gross misconduct”.
When an employer intends to summarily dismiss an employee, Part C of the fourth schedule of the ERA should be utilised. The provisions allow for the employee to be advised of the termination, the rationale for the termination, as well as procedures to appeal the termination decision.
Fourth Schedule, Part B – Step 2
The [disciplinary] meeting must take place before disciplinary action is taken and where reasonably practicable, within seven days of the transmission to the employee of the statement or copy of the statement referred to in paragraph 1(b).
The above gives the general guideline of seven days as the maximum time for scheduling the meeting.
There is nothing preventing a disciplinary meeting from being held within a shorter time frame, for example three days.
What is also apparent is that where circumstances prevent the disciplinary meeting from being held within seven days, then appropriate arrangements can be made.
Section 40
Where as a result of a fall-off in demand for the goods and services of the business . . . employees are made redundant and within six months from the date of the first redundancy . . . all things being equal, the employees who were made redundant shall be given a priority in recruitment; provided that the employees met, during their employment with the employer, such performance standards as may have been agreed upon prior to having been made redundant.
Many persons know about the six-month period and priority in recruitment. However, it is important to note the final paragraph of this section which clearly states that this right is extended to employees who have previously met employment standards.
Therefore, former employees who have documented performance or even behavioural issues, may not be considered for priority recruitment.
Additionally, there are questions on the interpretation of recruitment: does the legislation require selection of the former employee or just that they are included in the recruitment process and is recruitment restricted to the exact job that the employee previously held?
The Barbados Employers’ Confederation (BEC) has, on various occasions, called for regulations to address aspects of the act where grey areas exist.
However, there are some myths which can easily be debunked. While the above list is by no means exhaustive, by discussing some of the common misconceptions, I am sure readers are now more informed.
When in doubt you should refer to the source document – the legislation – or contact the BEC for further advice.
Sheena Mayers-Granville is a human resources manager, Unicomer (Barbados) Ltd.
