Wed | Jun 19, 2019

Orville Taylor | My last words on the IDT

Published:Sunday | March 17, 2019 | 12:22 AM
Emile Leiba

If every single employer were to vote in a general election for a particular party, the number of votes would be so minuscule that the count wouldn’t even fill one hand, perhaps stopping at the middle finger.

On the other hand, we have a labour force of more than a million. More than two million Jamaicans get their food, shelter, and clothing from salary and wages. The workers are who make parties win or lose elections. Thus, when they are placed in Parliament, they must do the will of the people.

Perhaps it’s because of the legacy of plantation slavery where another human’s sweat meant nothing to the masters. However, there needs to be a recognition that getting someone to do something for you that you cannot do by yourself is a big deal. With a few exceptions, the employment of a worker is never an act of charity. It is the purchase of, or investment in, an indispensable input into the productive process.

What is amazing is that when employers buy machinery, computer software, technology, or other capital elements for their businesses, they ensure that they understand the ins and outs and dos and don’ts to prevent them from crashing. Don’t employers know that they have to familiarise themselves with the laws regarding statutory deductions?

Everyone, including police officers and attorneys, knows that there is no protection in law due to ignorance. At best, legal illiteracy in a particular matter is nothing more than a handicap.

Therefore, no one forgives an employer of a small business if he does not deduct the education and income taxes for persons above the threshold. The non-payment of National Housing Trust deductions or National Insurance Scheme contributions is never covered nor indemnified because the employer is ignorant.

BLANKET OF HYPOCRISY

So the question is: why must the rules surrounding the most important element in the productive process be shrouded in a cloak of ignorance and a blanket of hypocrisy?

If we move past the mindset that decent work and the protection from arbitrary acts by employers are not welfare matters but rather, important elements in guaranteeing sustained productivity levels, then all this debate about the Labour Relations and Industrial Disputes Act (LRIDA) and other labour laws would not even arise.

Honestly, I am rather tired of the silly advocacy by some employers and a few attorneys whose conscience, knowledge, and ethics teach them better, yet who constantly argue that the Industrial Disputes Tribunal (IDT), empowered under Section 7 of the LRIDA, is a bugbear.

I have listened with deep interest as a number of employer representatives and a small number of attorneys, including a young man who I greatly respect and whose parents are people with a strong sense of justice, take issue with the LRIDA and its Labour Relations Code, established under Section 3 of the act.

Newly minted president of the Jamaican Bar Association Emile Leiba has been at the forefront of the debate. Quite correctly, he laments, “Even when an employer has good, substantive grounds for the dismissal of an employee, that employer can be found to have unjustifiably dismissed the employee by Industrial Disputes Tribunal (IDT) if the proper procedure was not followed.”

However, there is a bit of dishonesty in that complaint because this observation is true for ALL procedures before courts of law.

Some of his more senior colleagues would recall that when we were students at Cave Hill in the 1980s, poring over the notes of Roop L. Chaudhary, the importance of adhering to proper procedures was sacrosanct.

In my head, the quote still rings: “An improper procedure vitiates a dismissal which would otherwise be fair, lawful, or justifiable.”

British jurisprudence, and labour law in particular, has long gone past the notion that a contract of employment is like other contracts. Several cases long before our LRIDA was enacted established that a person’s job is like real property in which he has built up equity, and if it is to be removed, it cannot be done frivolously or without compensation. It is for that reason that the Employment Termination and Redundancy Payment Act and its regulations require that employers keep records of their workers. It even makes it clear that workers who provide domestic services must be treated as if they were working in an enterprise for the purposes of redundancy.

HIDDEN IN FULL VIEW

The IDT takes the guidelines of the code as virtual law, and although not statute, thus creates no basis for legal proceedings “… its provisions may be relevant in deciding any question before a tribunal…”. Therefore, ignoring the ‘natural justice’ underpinnings of the code opens the door for the dismissal to be considered unjust. Section 22 of the code, in my opinion, echoes the judgment in the 1964 case of Ridge v Baldwin and others.

Honestly, I am a bit unclear about what Leiba means when he notes that “unfortunately, nowhere in the Labour Relations Code does it set out the procedure that must be followed in disciplinary proceedings, as required by the IDT.”

I am willing to take instruction and guidance from him here, but as far as I can read, it is hidden in full view with my eyes wide shut.

I include a link to the code here:

https://www.mset.gov.jm/sites/default/files/pdf/Labour%20Relations%20and...

Nevertheless, inasmuch as there needs to be discussion with a view to improving the current labour laws, employers and attorneys who make their living from representing them need to spend more time teaching the public on the whole. For that, I commend Leiba.

Indeed, in September 2011, at a forum hosted by his place of employment, then labour minister, Pearnel Charles, speaking both from the white and black sides of his head, warned: “If the employee is guilty of conduct which may warrant dismissal, I implore employers to follow the disciplinary procedures set out in the Labour Code.”

And finally, here is something I didn’t learn in the labour law classes: since Independence, governments that have either ignored or tried to abrogate the existing rights of workers typically lose the next free election.

Nuff said.

- Dr Orville Taylor is head of the Department of Sociology at the UWI, a radio talk-show host, and author of ‘Broken Promises, Hearts and Pockets’. Email feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com