Orville Taylor | Redundancy protection: built by Labour

One of the highlights of my career as a conciliator at the labour ministry between the ‘80s and ‘90s was when I met and chaired meetings with the legendary Hugh Lawson Shearer (HLS). The year 1984 was the first time I saw him in person, and I must admit, I was a bit starstruck by this man who, years earlier, was doing the Jamaica Labour Party (JLP) ‘Built by Labour,’ television advertisements.

Thankfully, somehow a young and rather idealistic and enthusiastic industrial relations specialist made an impression on this venerable gentleman. Almost three decades after leaving the Ministry of Labour and Social Security (MLSS), it is with some pride that his widow Denise shared some of these memories, and of course and said, “HLS actually thought highly of you!”

In my deep conversations with the de facto head of the Bustamante Industrial Trade Union (BITU), Lascelles Beckford, in the 1980s, and many others, such as Edith Nelson and the late Alvin Sinclair, the legacy of Alexander Bustamante was very much alive. I had great moments with Frank McDonald, a firebrand negotiator, representing workers in the construction industry, who broke convention and shared drinks with me, because he believed I was fair and loved the working class. All of these men and women epitomised the essence of the BITU, and by extension the core of Busta’s JLP.

Senior negotiator at the time, Rudyard Spencer, uncannily reminded me very much of Shearer himself and we had many battles and negotiations. Yet, inasmuch as I was a mediator and thus in the middle, having come from the belly of the working class, my emotional sympathies were always with them.

IMPORTANT DISTINCTION

However, trust me, there is an important distinction between having sympathies and having operational biases. Truth is, our labour laws, hammered out over years in the Houses of Parliament, have a deep internal and external logic. One might easily forget that the two most important labour statutes in Jamaica, the Labour Relations and Industrial Disputes Act of 1975, and the Employment Termination and Redundancy Payment Act (ETRPA) of 1974 actually began as part of the 1971 swan song of a JLP administration that recognised that it was losing the support of the working class and that the proletariat was agitated, while a lightly pigmented Jamaican, who appeared white, but had a black wife and Afrocentric identity, was rising.

The ETRPA is not simply an inconvenience to employers, which inhibits the operations of an enterprise. This doctrine of trade unions and labour protection being ‘in restraint of trade’ long went out with the 1842 Masters and Servants Law, which had been enacted in 1842. Redundancy is based on solid jurisprudence as well as decades, indeed centuries of labour advocacy.

Making an evaluation of a similar British statute, Lord Diplock recognised that a worker’s job was not to simply an exchange of goods or services for a fee or other economic consideration. Rather, it was like property almost real estate, within which an individual has built up equity.

Therefore, just as when one has invested in a piece of land or a house and maintained and refurbished it over decades; he has an interest in it to such an extent that he must be compensated if removed from him. It must be recognised here, that we are not speaking about squatting. This is a situation where an individual has been contracted and worked with diligence and fidelity. At the end of this service, therefore, he is entitled to a terminal benefit, either via a retirement or redundancy/severance payment.

VERY EXPLICIT

Our ETRPA is very explicit as to the basis upon which workers qualify for redundancy payments. First, there must be a dismissal. A dismissal can either be by the direct action of the employer, such as a letter of termination or where he breaches the agreed terms and conditions of employment, by unilaterally changing critical elements of the contract. This ‘constructive dismissal’ can also be where the employer has created such an untenable environment because of these changes or otherwise, that the worker simply has no alternative but to walk away from the job.

For there to be a redundancy, however, the manifest or implied reason for the dismissal should be; a) the cessation of business, via death or sale or simply closure, b) a reduction in the requirements for labour of a particular type, or c) an occupational injury or disease contracted at the workplace.

So here is a consistent advice which comes from honest people who have administered the ETRPA; from the MLSS, employer representatives, trade unionists or attorneys. If the employer has changed your terms and conditions of employment; then you are dismissed. If the reason for the dismissal is because the employer can no longer afford to keep you under those conditions; then there is redundancy and you must be compensated for your service, even if you sign for ‘inferior’ conditions in a new contract.

Workers should be cautioned, however, to claim for their redundancy payment within six months after being dismissed. So, for example, if one is dismissed under such circumstances on April 30, 2023, then they have until the end of October to claim or they lose it all.

True, the payment to the workers may be burdensome to some employers. For this reason, I have recommended a severance payment fund, like Barbados more than 20 years ago.

Notwithstanding this inconvenience of the law, however, Hugh Shearer and other JLP stalwarts would certainly agree with this column.

- Dr Orville Taylor is senior lecturer at the Department of Sociology at The University of the West Indies, a radio talk-show host, and author of ‘Broken Promises, Hearts and Pockets’. Send feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.