Labour rights in COVID-19 - Young persons need to be educated on entitlements during pandemic crisis

As part of its recognition of National Youth Month 2020 in November, The Sunday Gleaner will be highlighting the views of the younger generation on controversial issues.

It goes without saying that the current outbreak of COVID-19 is responsible for major disruptions in the economy, especially in employment. Though the Ministry of Health and Wellness has instituted several mechanisms in an attempt to control the spread of the dreaded virus, this has not helped the current employment status of many who have been laid off, especially those who depend on tourism.

In fact, the earning prospects of several persons have been very limited with the enforcement of the Disaster Risk Management Act.

When examining the implications of these measures on western parishes, it is important to note that it is mostly young people who were employed in the entertainment industry, hotels or bars that have become adversely affected by this downturn.

Nevertheless, the common issue being brought before attorneys these days is ‘redundancy’ or ‘lay-offs’ stemming from this global pandemic. To examine this issue, the applicable legislations would be the Employment (Flexible Work Arrangements) (Miscellaneous Provisions) Act, the Employment (Termination and Redundancy Payments) Act and the Labour Code.

There are provisions under the Employment Act for situations where there are reduced operations caused by government-sanctioned shutdowns or other social issues. This act allows for some employment contracts to have flexible work arrangements, such as telecommunicating. In situations where employees have to work from home, the employees’ salary must be paid in the usual fashion. This type of work climate has become increasingly common in the business process outsourcing (BPO) sector or call centres.

If employees are able to complete their mandated duties from their residence, they are entitled to their full salary. However, if the employee is unable to fulfil this mandate, the employer is not required by law to pay the employee’s salary, but consideration may be made for payment in a ‘special leave’ situation.

Many hoteliers have laid off hundreds of persons, including a high number of youths, as a means to cut cost. For those who are fortunate to have the opportunity to work, they may work for less hours or have agreed to a reduction in salary. This measure is one which must be mutually agreed upon by the employer and employee prior to the commission of work.

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The Employment Act further stipulates that a ‘lay-off’ is described as a situation where the employer does not provide any work for its employees, even though they are available to perform their duties. The employer can lay off an employee without pay for a period of up to 120 days. Afterwards, the employee is entitled to redundancy payments.

If this is the path taken by the employer, there must be consultation with the employee or the representative of the employee, which may be a trade union. This is to ensure that the employee is not left disadvantaged as a result of the business ceasing its operations. Unionised workers, guided by a possible collective bargaining agreement, must be made aware of those terms.

This economic downturn has caused many young persons great frustration, as they do not know their rights or they have been left in the dark for several months by their employer. It is important that they seek legal advice from an attorney-at-law and also consult with the Ministry of Labour and Social Security on their options for recourse.

- Leon D. Malcolm is a legal professional and Youth Parliamentarian. Email feedback to editorial@gleanerjm.com