Lynch v National Conservation Commission
| Jurisdiction | Barbados |
| Judge | Hal McL. Gollop |
| Judgment Date | 15 July 2016 |
| Court | Employment Rights Tribunal (Barbados) |
| Docket Number | ERT/2014/064 |
| Date | 15 July 2016 |
Employment Rights Tribunal
Gollop, C.; Bushell, M.; Beckles, M.
ERT/2014/064
Gollop, Q.C., Mr. Edward S. Bushell, Mr. Frederick A. Forde
Employment Law - Redundancy — Whether the claimants were unfairly dismissed — Whether the employer's method of selecting employees for redundancy was objective and fair.
ERT/2014/064
CUTIE LYNCH ET AL v. NATIONAL CONSERVATION COMMISSION
LIST OF NAMES SUBMITTED BY THE NUPW
1 - ALKINS, ANDREW
2 - ALLEYNE, BENJIE
3 - ALLEYNE, JENNIFER
4 - ALLMAN, ERIC
5 - ARCHER, JUDY
6 - BARROW, ANDERSON
7 - BEST, DERRICK
8 - BEST, KENNETH
9 - BEST, KIMAR
10 - BLACKMAN, LUCY
11 - BLACKMAN, SHERNELL
12 - BOXILL, SUZANNE
13 - BOYCE, ANN
14 - BRADSHAW, MARCIA
15 - BRATHWAITE, NORMA
16 - BREWSTER, OMAR
17 - BRIDGEMAN, NATASHA
18 - BRISTOL, ALLAN
19 - BROOME, DANIELLE
20 - BROWNE, JANELLE
21 - BRUCE, KAREN
22 - CALLENDER, GEMEL
23 - CALLENDER, ORLANDO
24 - CLARKE, BARBARA
25 - CLARKE, DAVID
26 - CLARKE, STEPHANIE
27 - COLLYMORE, ARLEIGH
28 - CORBIN, DWAYNE
29 - CUMBERBATCH, TONIA
30 - DOOKEY, KENNETH
31 - EDEY, JENNY
32 - EDWARDS, KYLE
33 - FORDE, PATRINA
34 - FRANKLYN, MARGUARITA
35 - GILKES, ANDRE
36 - GITTENS, LEMUEL
37 - GRANT, RYAN
38 - GREAVES, JUDY
39 - GREAVES, RANDELL
40 - GREAVES, SHAUNTEL
41 - GROSVENOR, RANDY
42 - HALL, JOHNATHAN
43 - HALL, MICHAEL
44 - HAREWOOD, ONEAL
45 - HAYNES, MICHELLE
46 - HOLLINGSWORTH, RASHEEDA
47 - HINDS, KAREN
48 - HINDS, MATTHEW
49 - HUNTE, ISCHAR
50 - IFILL, CYNTHIA
51 - JOHNSON, PEARSON
52 - JORDAN, RICARDO
53 - KELLMAN, PATRICIA
54 - KENNEDY, ICILMA
55 - KNIGHT, SHEVONNE
56 - LAYNE, DWAYNE
57 - LAYNE, ANSEL
58 - LEMON, SHELDON
59 - LEWIS, TERRY
60 - LYNCH, CUTIE
61 - LYNCH, JAVON
62 - MARSHALL, NICHOLAS
63 - MCDONALD, DAMIEN
64 - MOORE, COLLIN
65 - NASSOR, ADE
66 - NICHOLLS, TROY
67 - NORVEL, GEORGE
68 - PHILLIPS, NORMA
69 - PILGRIM, DESMOND
70 - PILGRIM, SADAINE
71 - PINKETT, GLORIA
72 - PRYME, CHAIMAINE
73 - RAMSAY, EUDESE
74 - REECE, MAUREEN
75 - RICHARDS, NATASHA
76 - ROLLINS, VERTIA
77 - SARGEANT, MILLICENT
78 - SEALY, CARL
79 - SEALY, FABIAN
80 - SHURLAND, GENNENE
81 - SMITH, ANDRE
82 - SPENCE, CHRISTOPHER
83 - ST. HILL, DANIEL
84 - THORNE, JENNIFER
85 - VAUGHAN, COREY
86 - WALCOTT', BARRY
87 - WATSON, SANDRA
88 - WATTS, OLIVIA
89 - WEEKES, HEATHER
90 - WHITTINGTON, DONOVAN
91 - WILLIAMS, ROSALIND
92 - WOOD, ROSEANNE
93 - WORRELL, ANDRE
94 - WORRELL, BARBARA
95 - YEARWOOD, LOIS
ERT/2014/063
ANDERSON CHASE ET AL V. NATIONAL CONSERVATION COMMISSION
FINAL LIST OF NAMES SUBMITTED BY THE BWU
NUMBER — NAME — YEAR EMPLOYED
1 - ALKINS, ANDREW - 2007
2 - ARCHER, JUDY - 2003
3 - BRISTOL, ALLAN - 2007
4 - BROWNE, JANNELLE - 2008
5 - CALLENDER, GEMEL - 2007
6 - CHANDLER, KENVILLE - 2009
7 - CHASE, ANDERSON - 2007
8 - CLARKE, BARBARA - 2008
9 - CLARKE, STEPHANIE - 2008
10 - FRANKLYN, MARGARITA - 2007
11 - GREAVES, RANDALL - 2007
12 - HALL, MICHAEL - 2008
13 - HINDS, KAREN - 2007
14 - HURLEY, ROBERT - 2011
15 - KELLMAN, PATRICIA - 2007
16 - KENNEDY, ICILMA - 2008
17 - PAYNE, ERNA - 2011
18 - PHILLIPS, NORMA - 2007
19 - RUSSELL, MONICA - 2011
20 - SHEPHERD, JASON - 2009
21 - ST. HILL, DANIEL - 2008
22 - TAITT, ANDREW - 2007
23 - WEEKES, HEATHER - 2006
24 - WILLIAMS, ROSALIND - 2007
25 - WILLIE, MONICA - 2009
26 - YEARWOOD, LOIS - 2008
Hal McL. Gollop, Q.C., (Chairman) This is the decision of the Tribunal.
At its meeting of 12 December 2013, the Cabinet of Barbados gave approval to a measure aimed at reducing Government expenditure by decreasing the staff complement in the public sector by three thousand (3000).
This measure was also announced in a Ministerial Statement by the Minister of Finance in the Budgetary proposals, 2013. The Minister informed that the said reduction would be executed in two tranches, the first of two thousand (2,000) workers by 15 January 2014 and the second by 31 March 2014.
By Circular No. 1/2014, M.P. 6205 Vol.1.T3, the Permanent Secretary, Ministry of the Civil Service outlined the policy initiative in a “Framework to Effect the Reduction of Posts in the Public Sector and the Payment of Terminal Benefits” which was communicated to all Permanent Secretaries and Heads of Department.
The Circular particularized the framework which Cabinet had decided upon at its meeting of 16 January 2014 for the reduction of the Public Sector workers and payment of benefits to them arising out of their termination.
Some of the more pertinent aspects of the framework agreed upon by Cabinet are set out seriatim:
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i. The policy of retrenchment should generally be Last-In-First-Out (LIFO) with care being taken to ensure that programmes were not affected;
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ii. the termination benefits paid to those terminated should be in the nature of a severance payment similar to that paid to their counterparts in the private sector;
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iii. there should be no compensation made to persons with less than two (2) years of completed service;
There should be no compensation to persons 66 years of age
or over at 31 December 2013 except that payment may be made to those persons who do not qualify for National Insurance Pension because they had not been able to make the required number of contributions to the scheme; and
no compensation should be paid to those retired on a pension but had been subsequently re-employed;
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iv. service for which compensation is paid will not count as continuous service for future retiring benefits;
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v. compensation should be calculated on any acting allowance earned over the last two (2) years of service but should not be calculated on overtime payments;
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vi. counselling services should be provided for a period of eight (8) months for those individuals who are laid off; and
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vii. the relevant agency should be provided with the funds necessary for the facilitating of such counselling services.
3. After having met with “some of the larger ministries” to determine the level of retrenchment to be effected in each agency, the Ministry of the Civil Service decided that the persons generally affected by the proposed reduction of the work force would be temporary officers with less than five (5) years' service using the LIFO principle. It was also indicated that by 31 January 2014 one thousand (1,000) workers should receive their letters of retrenchment from the Chief Personnel Officer; it was intended that most of the others would receive their letters of retrenchment by 31 March 2014.
It was also intended that the letter would indicate the terms of their termination assessed on their pay period and the terms outlined in their assignment letters.
4. Qualifying Officers in accordance with Cabinet approval would receive their termination payment calculated on the formula set out at paragraph 2 of the First Schedule to the Severance Payment Act Cap 355A of the Laws of Barbados.
5. The information necessary to calculate the termination payments should be made readily available by Permanent Secretaries, it being necessary to provide the dates of continuous service and retiring allowances paid over the past two (2) years for each temporary officer.
6. Arrangements had been made for the Office of Public Sector Reform to provide any counselling services that may be required by the affected officers.
The criteria for having the Office of Public Sector Reform set up the counselling facility centred around the following considerations:
In today's environment, the economic and financial climate were having a very heavy impact on business operations. Such climate may lead to job losses due to downsizing, reorganization and redundancy. And even though the impact of redundancy may vary from employee to employee, it could not be gainsaid that it did not produce in some cases such effects as shock, and anger in the sense that employees tend to lay blame on management if they considered they had been unjustly treated. The loss of a job is a matter of critical concern for the employee and may even lead to loss of identity and self esteem, and result in fear for the future and anti social behaviour.
It was therefore necessary for employees to be provided with the mechanisms that would assist in the healing process.
Negotiations to give effect to the policy decision of Cabinet were carried out between the National Conservation Commission (NCC) and the two unions representing the employees, the National Union of Public Workers (NUPW) and the Barbados Workers Union (BWU).
These two unions were dissatisfied with the manner in which the employees were selected for termination and sought the intervention of the Chief Labour Officer to insure that the measures being taken to carry out the retrenchment process were equitably applied.
The unions challenged the decision of the NCC and when it became clear that there would not be an amicable resolution of the matter, cases were brought before the Employment Rights Tribunal (ERT) alleging that the NCC, in executing the retrenchment process, failed to act within the four walls of the Statute, The Employment Rights Act, 2012–9 ( ERA).
Cases were filed on behalf of a number of workers who were members of the two unions. As a result the ERT is here being...
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