The Employment Rights Tribunal (ERT) needs more bite. The tribunal, which was set up under the Employment Rights Act of 2012, has become a lifeline for many aggrieved workers who were proven to be on the right side of the law.
Hundreds have benefitted from the tribunal which is an avenue for workers to resolve disputes involving unfair dismissals and other workplace grievances.
It was truly a visionary move by the then Minister of Labour Esther Byer-Suckoo who tabled that as well as other critical pieces of labour legislation including the Occupational Health and Safety Act as well as the Sexual Harassment in the Workplace Act.
Within the ERT’s first few years (2015-2021), employees in Barbados were awarded more than $1.2 million in compensation for unfair dismissals, in cases adjudicated by the tribunal.
In a report published by the Improved Access to Justice in the Caribbean Project (IMPACT Justice), it was revealed that in all of the successful claims for the workers, the employers had failed to follow the procedures and processes required by the Employment Rights Act when dismissing staff, either for breaches or redundancies.
Rulings have been made against both private sector and public sector employers, unearthing bad HR practices. Many of the rulings that were publicised in the mainstream media sent two messages: One, to employers to get their act together and follow procedures when dismissing staff; and two, to staff who felt they were treated “unfairly” by their employer.
What the report or the records may not fully account for is the number of cases brought before the tribunal that were not heard but settled by the employer. The Ministry of Labour would have such on record. There have been quite a few.
The reality is that there can be little dispute about the effectiveness of the tribunal in giving a space to workers who do not have the might and power of corporate capital to back them.
In many instances, when we look at the highly-publicised cases, they involved employees who had given a considerable number of years of service to the company.
There are arguments in the public space that the ERT gives too much power to the worker and little to the employer. On the other hand, others are adamant that it was established to protect workers who could not otherwise protect themselves.
Notwithstanding the good work, the tribunal has had many challenges. There is currently a backlog of over 400 cases. The tribunal lacks staff and has insufficient financial resources. This is affecting the timely delivery of justice to those whose cases remain logged but not heard.
This year during the Estimates debate, Senator Monique Taitt called for more resources to be allocated to the tribunal and chided the government for not appointing a chairman after Retired Justice Christopher Blackman stepped down in March 2023.
Earlier this year, while calling for changes in favour of the employer, the Barbados Employers’ Confederation also spoke about the backlog.
Talk from Minister of Labour Colin Jordan this week of a full-time tribunal would appear to be some good news.
“I expect that the Employment Rights Tribunal . . . will be able to move to a full-time tribunal before the end of this calendar year,” he said.
But Justice Blackman was not jumping for joy. He made it clear that the tribunal must be elevated.
“It must rank above a Magistrates’ Court and near to a High Court level, otherwise all you will end up with is a full-time frustrated chairman. You will be spinning top in mud if you have a full-time chairman and there is not a fundamental change in the status of the tribunal. Lawyers are not going to leave the Supreme Court to come to the tribunal. You have to change the hierarchy of the tribunal to the level of the Supreme Court or near its level,” he told Barbados TODAY a day after Jordan’s announcement.
We can only hope the powers that be hear and understand the logic posited by the former chairman. All the good work done over the years will mean little if workers are being unfairly dismissed daily while cases sit in a log.
The irony is as Justice Blackman made his case known, president of the Human Resources Management Association of Barbados (HRMAB) Nicholas Roberts was complaining about toxic workplaces with poor leadership. In this climate outlined by HRMAB, there is absolutely no doubt that a fully functioning and elevated ERT is needed now more than ever.
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