The Long Slow Wheels of Justice for Employment Rights Matters in Barbados

The attitude from government officials in response to the backlog of court cases has been the same for numerous years. The Attorney General (AG), in response to a recent worry, said in part, "the Authorities continued to work tirelessly on the legal backlog," referring to the three years it took the Court of Appeal to make a judgement in respect to one of the killers in the Campus Trendz murder case. Continuing, he said “there is absolutely no doubt that for years now the legal system has been plagued by delays and there still remains a problem of backlog. In the last four years since coming to Government, we have implemented a number of major initiatives, including increasing the size of the bench and especially the criminal bench, to break the back of this problem.”  

It's fascinating how the AG acts as if he merely became aware of the backlog problem four years ago after taking office. It's also fascinating how blame may be shifted to a different government, despite the fact that governance is intended to remain ongoing. Employers and especially employees continue to complain about their long wait for meetings to be called and decisions to be made by the Severance Payments Tribunal, the Labour Department and the Employment Rights Tribunal. 

It was therefore no surprise when the local Nation Newspaper reported in its publication of Tuesday 31 May 2022, that after more than a decade approximately 28 severed employees of the former Grand Barbados Hotel have still not received their severance. One worker informed that they had been working on short time for more than 8 years until 2011 when the hotel closed for renovations, and they were laid off with a promise to be rehired. 

The newspaper article further informed that they were advised back then by the Barbados Workers Union to apply for severance as they were in limbo past the stipulated allotted time. I don’t quite understand why they did not apply for severance in accordance with the Severance Payments Act, after being on short time for 13 or more consecutive weeks. Perhaps they were working reduced hours as apposed to working on short time. This is unclear. If in fact the employees were on short time i.e., they were working for less than 21 hours a week, then they would have qualified to submit a claim for severance after 13 consecutive weeks. 

The former Sandy Lane employees previously referred to, said that they went to the severance payment scheme (Tribunal) in 2012 and 2013, and that following those visits, the justification or reason given to them for not resolving the long-standing dispute was that either the lawyer was out of town or that they would be called. This is an unsatisfactory state of affairs. Other employees complain that they have been waiting of over four or five years on the Labour Department to conciliate on matters of unfair dismissal claims. The wait is even longer as others wait on meetings to be called by the Employment Rights Tribunal. Insufficient staff at the Labour Department and the inefficient operation of the Employment Rights Tribunal have been blamed for the long delays. Industrial Relations and Labour Consultants complain that the Labour Department continue to be in breach of the Employment Rights Act which clearly states that that Department have 42 days to conciliate on matters referred to them. 

More than two years ago, the Advocate Newspaper reported on the 27 February 2020 that the Attorney General and Minister of Legal Affairs, Dale Marshall queried the length of time it was taking for the Labour Department to refer cases to the Employment Rights Tribunal after a process of conciliation fails, in accordance with the law and in the interest of dispensing justice to the parties involved. His query came during ongoing debate for the Appropriation (Amendment) Bill, 2020 and according to the newspaper both Chief Labour Officer, Claudette Hope-Greenidge and Minister of Labour and Social Partnership Relations, Colin Jordan addressed the query.

. According to the article the AG noted at that debate that the Employment Rights Act stipulates that conciliation must take place within a certain time frame after complaints are filed – 42 days in this case – but that the Labour Department has been seeking to do so for five years in some cases. Continuing, he said “I can’t see any point in doing a conciliation for five years after and I am therefore wondering whether the personnel who are responsible for this conciliation mechanism have been appropriately trained and have the necessary skill set to apply to such a sensitive and important area.” The AG’s comment was seen by some as an insult to the Chief Labour Officer and Minister of Labour. Indeed, some felt that he was suggesting that there was a certain level of incompetence in the department. 

In response to the question from the AG as to whether employees were appropriately trained, the Chief Labour Officer Hope-Greenidge pointed out that much of the training or preparation for those labour officers is done on the job, as there isn't a targeted or purpose-built conciliation training program accessible locally. She did agree, however, that the Labour Department had worked with the International Labour Organization in the past, and that most recently, in the second half of 2019, it held a special one-week training program for employees, as well as partnering with a private sector firm. She did point out, however, that around half of the Department's nine labour officers were new. Clearly given that fact that the backlog still persists, there are still not enough staff assigned to the Labour Department. In fact someone close to the Department suggested that new employees who were recruited to reduce the backlog were reassigned to a newly created Human Resources Department within the Labour Department. I have not been able to confirm that this is in fact the case. 

The article in the Advocate Newspaper provided us with some interesting facts as articulated by the Chief Labour Officer. According to the Chief, between April 2019 and September 2019, the Labour Department received approximately 3209 complaints and of those, 65 disputes were conciliated and a further 78 were referred to the Employment Rights Tribunal. This means that less than 5% of the outstanding cases were sent to the Employment Rights Tribunal or went through conciliation over the five-month period. This is woefully inadequate, and the backlog continues to increase.

In the said debate, Minister Jordan reported that one of the reasons why the Labour Department continues to seek conciliation after the number of days advised (42 days) is to avoid putting "an undue strain" on the Employment Rights Tribunal and the limited labor officials. Now this is a short sited and logical thought process if Government has absolutely no idea as to how the backlog can be reduced. The problem with the strategy articulated by the Minister is that government ought to have anticipated that the number of unfair dismissal claims submitted to the Labour Department  would far outweigh the number of cases the Employment Rights Tribunal could conclude within a reasonable time frame. Hence a bottle neck could not be avoided under the present structure. However structures should be in place to minimize the backlog.

The Advocate Newspaper further reported that AG Marshall, continued to express his concern about "the backlog and the delays in conciliations," and again He reiterated his appeal for cases to be referred to the Employment Rights Tribunal more quickly, citing legislative obligations. He AG is quoted to have said "I believe the whole point of the Employments Rights Tribunal is to move things along quickly, and I believe that was its appeal, rather than going through a court process with its lengthy delays, and I am just a little concerned that your approach to dealing with it, as well-intentioned as it is, may not be helping to serve the purpose that it should be."  

Once again, the AG appears to be implying that he is dissatisfied with the Chief's or Minister's performance. On reflection, this is also the moment at which one begins to suspect that essential information about the reality of the situation regarding the backlog is not being passed on from the Minister of Labour to the AG or Cabinet. Surely the AG should be aware that the Employment Rights Tribunal among other things do not have the required resources to be as efficient as was intended. Surely, he is aware that the Tribunal has for years been asking for more resources. Surely, he is aware for instance that there is only one recording secretary employed by the Employment Rights Tribunal who cannot be in more than one place at the same time. 

The AG also suggested that the process employed by the Employment Rights Tribunal should not mimic the court process with its lengthy delays. This is a pipe dream because once a case gets to the Employment Rights Tribunal employees and employers turn up with their respective lawyers, the chair is a retired Judge, and it is a court scene all over again. Hence another reason for the delay. 

The AG made the valid point that “Under the statute, if you (the Labour Department) are not able to complete that conciliation within 42 days, the Chief Labour Officer must send the matter to the Tribunal.”  This suggestion to adhere to the law however cannot be a solution given the present circumstances because it will only create a larger bottle neck. The Employment Rights Tribunal plainly does not currently have the resources to execute its responsibilities in an efficient manner. 

The newspaper report continued by informing that Minister Jordan acknowledged that, due to space constraints, the inability of Tribunals to hold simultaneous hearings, and the work demands of Tribunal Chairs who have other responsibilities, he may have to work with the AG and his office to appoint dedicated Tribunal Chairs who can devote the time necessary to have justice served in a timely manner, even as some of the other limitations are investigated. That was the position on 2 February 2020. More than two years after in June 2022, the situation has not changed in any significant way. There are cases now outstanding for six and seven years and more. That suggested collaboration between the Minister of Labour and the AG has not yet occurred to my knowledge. If it did happen, there are no noticeable changes. 

Based therefore on the foregoing I would like to make the following recommendations to speed up the process and reduce the backlog:

1. Increase the number of free training courses on employment rights as well as grievance handling and disciplinary procedures for employers and employees. This should reduce the incidence of unfair dismissals, hence reducing the number of claims.

2. Commission a study to review the inefficiencies as they exist in the Labour Department and the Employment Rights Tribunal and implement reasonable recommendations accordingly aimed at removing the backlog.

3. Train more employees and persons in the private sector to conciliate disputes and make provisions for them to make their services available to the Labour Department. 

4. Expand the staff compliment within the Labour Department to adequately handle the number of unfair dismissal complaints. 

5. Purchase the appropriate software to record and store complaints and track the progress of the complaints over time. 

6. Amend the current Employment Rights Act as well as the Labour Department Act to give more power to the Chief Labour Officer in relation to mandating attendance at conciliation meetings. 

7. Introduce fines for employers and employees not conciliation meetings attending  without a valid or reasonable excuse when so invited. 

8. Increase the number of Employment Rights Tribunals to five and provide them with adequate staff. 

9. At the moment members of the tribunal are drawn primarily from members of a trade union (Barbados Employers Confederation, and a workers’ trade union) and the legal fraternity. The necessary legal amendments should be made to broaden the net and include competent professionals outside the membership of the aforementioned trade unions. Professionals with a background (experience and or qualifications) in human resources management, employee relations, industrial relations, management, or employment law should be appointed to the Tribunals. 

This state of affairs cannot be allowed to continue. It is frustrating and stressful. Our political bosses must take the required action and do all they can to reverse this situation. It should be attended to urgently because while the grass is growing, the horse is starving.

Peter MacD Earle BSc, LLM