Orville Taylor | Retrenchments and safety net

Thank God some of us still have roofs over our heads and accessible supplies of food and water. A privilege set have electricity, and doubtless, much to be grateful for.

A long and slow recovery ahead, we need an active workforce. Yet, those of us who still have small businesses, or a ‘rerk’, have to count our blessings.

Jah bless! Many are jobless and others are on layoffs or worse, redundant. For someone who has put his energies into a company for an extended period, the loss of a job, due to the employer’s closing the business can be devastating.

Thankfully, our Employment Termination and Redundancy Payment Act 1974 (ETRPA), Sets a minimum standard for terminal benefits; the saving grace for some employees.

Generally speaking, a redundancy is a dismissal; a termination of the contract of employment by the employer, whether directly or indirectly. A dismissal has to take place for any kind of redundancy to trip in.

A temporary suspension from work, is not a dismissal. Under the Act, an employer has up to 120 days during which he can lay off a worker, without having to bring the contract to an end. It can be an annoying provision, because if he is so minded, he can do this continually, with short breaks and resumptions.

Of course, this potentially puts the worker at a severe disadvantage. However, that is the prerogative of the employer under the statute.

If the absence exceeds 120 days, the employer loses all discretion and then, subject to certain statutory periods of notice, the worker has to be made redundant, if he so desires and payment becomes the entitlement of the worker.

Typically, the employer is given a year within which to pay the workers. On the other hand, if after being made redundant the worker has not claimed his payment within six months; he stands to lose permanently any claim to this benefit. Harsh, but that is the law.

There are other circumstances under which an individual can lose a right to a redundancy payment. These include, but are not limited to, an offer of re-employment under similar or better terms and conditions of employment, by the same employer in a subsidiary or a locale within 16 kilometres of the original place of employment.

This is redundancy in its simplest form, and once an employee has been made redundant, he earns a minimum of two or three weeks for each year of service depending on his length of employment.

Reason for redundancy

The bases for redundancy, however are not whimsical. They must be because the employer has ceased operations or intends to do so, or has reduced the requirements for labour, or intends to do so. It is also possible where a worker developed an occupational illness or an injury on the job.

In regard to the closure of business or reduction of staff due to retrenchment or other managerial privileges and rights, the employer cannot simply act independently, and must interface with the Ministry of Labour before any redundancy exercise can be completed.

These are necessary checks and balances, because too often, employers use the redundancy trick to deprive workers of their rights.

Nevertheless, at the end of the day after all the dots and T’s have been crossed, it is the discretion of the employer which ultimately prevails, because management always has a right to manage.

As the country struggles to get back on its feet, there are some industries where layoffs and redundancies either have already taken place or will become necessary. In the tourism sector we have already heard of large scale shutdowns with the workers likely be out of a job until at least February.

Welfare fund

Outside of the Act some unions have collective agreements, which provide for some minimal sustenance from a welfare fund during the down time. In some industries with forward thinking trade unions, there exist clauses which incorporate that additional level of social protection.

Still, generally in Jamaica there is no such provision. Therefore, when workers are laid off usually have nothing to hold on to. Furthermore, if the employer has closed operations and is not making any money, he has no means by which to fulfil his obligations.

It should be noted that not all employers who do not pay these terminal benefits are persons who are unscrupulous or want to deny workers their entitlement.

An employer or undertaking , which is broke or insolvent simply cannot pay. Where does this leave the worker in the current situation ?

This is not hypothetical apart from the hotels that have already closed a number of enterprises are going to at a minimum fold for a short period, because they simply do not have the ability to pay salaries.

Our trade unionists need to step up and shift the paradigm. More than 20 years ago, drawing comparisons with the Barbados Severance Payment Act, a legislation a year older than the ETRPA, I recommended that Jamaica adapt talk extant provision in that legislation most important is the creation of a severance payment fund. In Barbados everyone contributes to it like National Insurance. If an employer fulfils his obligations, he is capable of getting back a percentage of that payment.

Finally, if the employer is simply broke or is missing; the worker draws down on the fund.

It is that simple.

With two workers/labour parties in Parliament, this is long overdue.

Strangely, after more than a half a century of statute protected collective bargaining, our trade unions have failed themselves and their own workers, in not having a fund or scheme for union officers.

Something is wrong with this reality.

Orville Taylor is senior lecturer at 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.