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Nothing is wrong with the CLO working with Barama and staffers
Dear Editor,
I refer to Mr. Akeel’s latest letter (Kaieteur News 09-11-2010), under the caption, “The CLO’s statement has implications for industrial relations”, and unequivocally agree that the said statement must be of interest to human resources practitioners and trade unionists alike.
I hold no brief for the CLO, but I am of the opinion that there is nothing fundamentally wrong with the statement which said that he was working with the parties to have the Barama Company Limited just pay off the staffers instead.
From the tone of his letter, Mr. Akeel seems uncomfortable with the fact that the CLO could be working with the employer and the employees, who were dismissed so that the employees may be paid off even though they may be guilty of a serious misconduct.
He surmised that if the employees were wrongfully dismissed there was no need for the CLO to be working with the parties, because in such a scenario, the employing company has certain legal obligations which must be fulfilled
I wish to submit that Mr. Akeel knows too well, that in many cases where the employer is aware of his obligations the CLO and his officers still have to work overtime with the parties to ensure that the employer properly and adequately discharges his legal obligation to the employee.
The CLO and his team have to work so hard that they may even have to take the employer to court just to get him to pay up. Prosecution is always the last resort.
Secondly, Mr. Akeel asked, “if the employees were properly dismissed, why should the CLO have to work with the parties so that the company can pay off the employees when there was no obligation to do so”.
He surmised through a rhetorical question, that to do so would be a violation of the Termination of Employment and Severance Pay Act (TESPA). I am not sure that this is true, for as far as I can recall legislations of this nature as well as the ILO Conventions with which Mr. Akeel is quite conversant set minimum standards for the parties to follow.
Therefore, if the Act says that the employer does not have to make a particular payment in a particular circumstance, the employer will not be chastised if he chooses to make that payment of his own free will. However, he must he careful to specify exactly what the payment is being made for.
It would be interesting for Mr. Akeel to explain in what way and which specific section of the act will be breached, if an employer makes a payment which he is not required to make.
Further, in an analysis of TESPA by Mr. Jeff Cumberbatch, which appears in Volume I No I of the Guyana Law Review (1999), it is clearly stated that even though an employee may be rightfully dismissed the employer can still proceed to make some sort of gratuitous payment to that employee. In this regard Mr. Cumberbatch cited a decided cave and said:
“However, where, in Matheson v. Matheson International Trucks Ltd, an employer offered one month’s severance pay in a circumstance where there could have been a summary dismissal; the Ontario High Court held that this did not preclude the reliance on just cause. Parker C. J. viewed the payment as an act of generosity as opposed to one of condemnation”.
In view of the foregoing, I can see nothing wrong with the CLO working with the parties so that an act of generosity could he exercised in the interest of the employee who may have been justly dismissed.
What is important is in such circumstances the CLO cannot force the employer to make a payment, which he is not legally bound to make.
Perhaps Mr. Akeel may wish to tell us on what basis the six employees from Republic Bank who were deemed to be guilty of a serious infraction about four years ago were paid off and who was it that advised the bank to adopt that course of action. I am certain that human resources practitioners and trade unionists alike would like to be educated in this regard.
In the meantime, I would strongly recommend that they read the judgment of Justice B. S. Roy in the 2002 case No.447-W, featuring an ex-employee and GECOM for a brief tutorial on how to avoid the pitfalls of condemnation referred to by Chief Justice Parker in the Matheson case cited above.
Francis Carryl
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