LABOUR LAW – JAMAICA LAGS BEHIND THE ILO AND EVEN ST. KITTS
The International Labour Organisation (ILO), an organ of the United Nations, provides a minimum standard against which laws related to employment should be measured. Its Conventions are communicated to member states for ratification, while the Recommendations are communicated with a view to being given effect by national legislations.
The ILO’s paramount mission is to improve the working and living conditions of workers throughout the world, primarily through the formulation of standards which members ratify, and through monitoring their application. “Its unique distinction is that its operations are based on the principle of tripartism in which representatives of employee groups, employer groups and government member nations participate equally in attempting to attain the aspirations of the ILO.”1
These international labour standards are the only collection of approaches to social and labour issues agreed under democratic principles by representatives of governments, workers and employers of all the social and economic systems of the world. “They are the global model for workplace rights and responsibilities. As such, it is the obligation of the ILO member states to emulate them as far as possible, and the mission of the ILO to promote their emulation.”2
The ILO’s Termination of Employment Convention and the Termination of Employment Recommendation were adopted in 1982 and came into force a year later. Since then and prior to that year, Commonwealth Caribbean jurisdictions have had statutes related to employment and labour relations in specific territories. This paper attempts to look at the legislations of St. Christopher and Nevis (hereinafter referred to as St. Kitts-Nevis) and Jamaica, the former being passed in 1986, four years after the ILO’s Convention was adopted, and the latter having been operational prior to the 1982 Convention.
In light of this, it should be interesting to see how well St. Kitts-Nevis has conformed to the international standards, in comparison to Jamaica, whose employment legislations was, in 1986, already a decade old, and continues to be in force today.
The legislations under examination are: The Protection of Employment
Act 1986 from St. Kitts-Nevis, and from Jamaica, The Labour Relations
and Industrial Disputes Act 1975 and Employment (Termination and Redundancy
Payments) Act 1974.
St. Kitts-Nevis vs. ILO
Article 2 of the ILO convention expressly states that its application encompasses “all branches of economic activity and to all employed persons.”3 It follows, however, with the probable exclusion of some categories of workers: fixed term employees or those employed on a contract for services; apprentices or trainees, and, casual workers.4 It also excludes:
…categories of employed persons whose terms and conditions of employment are governed by special arrangements, which as a whole provide protection that is at least equivalent to the protection afforded under the Convention.5
…other limited categories of employed persons in respect of which special problems of a substantial nature arise in the light of the particular conditions of employment of the workers concerned or the size or nature of the undertaking that employs them.6
The St. Kitts-Nevis Act excludes: public servants; company directors and partners; next-of-kin employees (husband, wife, father, mother, brother, sister or child) who live “in the employer’s household”; masters or members of shipping vessels who are in a profit-sharing venture, and, temporary and casual workers “except in respect of maternity leave qualifications.”7
It appears that the ILO Convention allows ample scope for individual legislations to “exclude” public servants et al as did St. Kitts-Nevis.8 The public servants and company directors referred to in the St. Kitts-Nevis Act may fall under the ILO Convention’s Article 2(4)9, while family employees in St. Kitts-Nevis may be deemed covered by Article 2(5) of the Convention.
It should be noted that the ILO’s Convention and its attendant Recommendations do not explicitly define the categories of workers to which it refers, leaving such interpretations wide open for determination at the discretion of draftsmen in accordance with “national practice.”10 Thus, Article 2 (2) (c) of the Convetion points to “workers engaged on a casual basis for a short period” and the St. Kitts-Nevis Act defines “casual worker” as persons “whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer’s trade of business.”11
The Convention therefore merely lays down a general standard, which may be defined in state legislations in accordance with the cultural context within which the law operates.
Article 4 of Division A of the ILO Convention under “Justification for Termination” states the valid reasons for termination of employment as being in connection with the workers’ capacity, conduct or the operational requirements of the employing organisation. As far as “capacity” is concerned, St. Kitts-Nevis has relegated this to mental or physical incapacity relating to illness, stating that termination by the employer may occur -
Where a medical practitioner certifies that an employee is suffering from infirmity of the mind or body which is likely to be permanent, provided such infirmity has lasted for a period of at least three (3) months12
St. Kitts-Nevis has therefore narrowed the definition of “capacity” to that which is medically identifiable. But, suppose the employer upgrades or improves the system of work and the employee, though offered training for manning same, lacks the intellectual capacity to grasp the concepts for doing so, can the employer then terminate her services? This does not seem possible unless such ‘intellectual incapacity’ can be medically certified as a permanent “infirmity of the mind.”13 So while the Act complies by including ‘capacity’ as a valid reason for termination, it may still be seen as inadequate in relation to international standards as its definition of ‘capacity’ is somewhat restricted though slanted in favour of the employee.
The ILO’s Recommendation adds “age” to that which should not constitute valid reasons for termination, “subject to national law and practice regarding retirement”.14 The Protection of Employment Act 1986 of St. Kitts-Nevis, makes absolutely no mention of age, whether as regards reason for termination or retirement. It may be an oversight or a deliberate omission, but one that cannot be ignored since the Act slavishly followed the ILO’s Convention and Recommendations in other regards.
The St. Kitts-Nevis Act provides for termination without notice where the employee is guilty of serious misconduct or not performing satisfactorily15:
…provided that the employee has been warned in writing on at least two occasions within a period of six months indicating the nature of the misconduct or unsatisfactory performance of duties, and in the case of the last warning, the intention of the employer to terminate the services of an employee shall be indicated, where there is a repeated misconduct or unsatisfactory performance of duty.16
The provision of ‘warning’ to the employee negates the concept of dismissal “without notice” as the warnings may be deemed to provide ‘notice’ of a pending dismissal. The ‘warning’, however, falls within international standards, as the ILO Recommendation states that termination for misconduct should not be done unless “the employer has given the employee appropriate written warning.”17 Further18 the Recommendation points to acquiescence by the employer in failing to provide such notice within a reasonable time, thus waiving the right to terminate.
Note Article 7 of the ILO Convention:
The employment of a worker shall not be terminated for reasons related to the workers’ conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity.
Thus, from an international standpoint, the employee should be allowed to defend herself against allegations of misconduct or mal-performance. In St. Kitts-Nevis, employees are given an opportunity to improve or go! Is this compliance with international standards? Not strictly speaking. But the employee and or employer may report matters in contravention of the Act to the Labour Commissioner for settlement.19
As far as termination due to “operational requirements of the undertaking, establishment or service”20 is concerned, the St. Kitts-Nevis Act provides for termination where there is redundancy due to changes in the business; modernization; full or part closure; mechanical breakdown; liquidation or bankruptcy, or, death of the employer.21 This is clearly in compliance with the international standards.
The St. Kitts-Nevis Act goes further by providing periods of notice to employees based on tenure22, or
In lieu of notice the employer may provide the employee wages and other benefits to which the employee is entitled during the period of notice.23
Article 11 of the Convention provides for “reasonable” notice or compensation in lieu of it. In Richardson v Koefod24 it was stated that “[I]n the absence of express stipulation, the rule is that every contract of service is determinable by reasonable notice. The length of notice depends on the circumstances of the case.”
Obviously St. Kitts-Nevis did not wish to have the common law interpretation of “reasonable notice” invoked on the facts of each case, so it proceeded to state expressly what “reasonable notice” should be. The law clearly therefore, complies with the ILO standard.
Further, the ILO’s provision of ‘reasonable notice’ stands unless the employee is guilty of “serious misconduct” thus intimating that ‘serious misconduct’ justifies dismissal without notice. As already discussed, section 5 of the St. Kitts-Nevis Act provides for dismissal without notice for serious misconduct.25 There is, however, a statutory restriction for payment in lieu of notice:
An employer shall not give an employee pay in lieu of notice where the employee’s services are terminated for mental of physical incapacity or infirmity without prior notification to the Labour Commissioner.26
Note that this speaks only to “notification” to the Commissioner and makes no mention of any inquiries. It is merely, therefore, a formality requirement of the Act.
It is interesting to note that in the ILO’s Recommendations27 “the worker should, for the purpose of seeking other employment, be entitled to a reasonable amount of time off without loss of pay, taken at times that are convenient to both parties” during the notice period. This has not been addressed by the statute, which does not mean that such is not applied or invoked by the common law.
Article 5 and Article 6 (1) of the ILO Convention and section 11 of the St. Kitts-Nevis Act are almost entirely identical save for the absence from the latter of “pregnancy” and “religion” from the list of that which constitutes reasons for which the employer cannot terminate an employee. But Part IV of the Act under “Maternity Leave” states –
1. The employment of an employee shall not be terminated by reason only of her pregnancy or confinement or of any illness consequent upon her pregnancy or confinement.
2. Where an employer is prosecuted for the offence of acting in contravention of the provision of subsection (1), the burden of proving that the employment of an employee was terminated by reason of a fact other than her pregnancy or confinement or any illness consequent upon her pregnancy of confinement shall be upon the employer.28
Thus the Act includes pregnancy as a condition under which, prima facie, an employee may not be dismissed, as expected from international standard. But, no provisions are made for “religion” which intimates that under this Act, an employee may be validly dismissed because of her religion. Such an action, however, may be deemed unconstitutional, as discrimination due to religion is constitutionally prohibited in St. Kitts-Nevis. In light of the fact that the constitution is the supreme law of the land, it would have been redundant to have this included in the Act. St. Kitts-Nevis, therefore, is clearly within international standards as far as these stipulations are concerned.
Article 12 of the ILO Convention provides for entitlement to severance pay and other financial benefits on termination of employment. This is calculated on the basis of tenure, wages and contributions to the various funds from which such payments are made, for example, pension schemes and insurance policies. This too is provided for under the St. Kitts-Nevis legislation.29
Division A30 of Part III of the ILO Recommendation31 stipulates that employers should inform, and consult with, workers’ representatives (taken to mean trade unions) of/on any contemplation of termination of employment, in the event of layoffs, closures and such dismissals of a ‘redundancy’ nature. No such compliance is ascertainable in the St. Kitts-Nevis Act, which implies that employers may take such actions without regard for the imput of unions or other organisations with which employees are affiliated.
Further, Article 14 of the ILO Convention points to notification to the “competent authority” of any plans for terminations “for reasons of an economic, technological, structural or similar nature…in accordance with international law and practice.” 32 In St. Kitts-Nevis this is not part of the Protection of Employment Act 1986. The ‘Labour Commissioner’ in St. Kitts-Nevis may be equated with the ‘competent authority’ mentioned in the ILO Convention, but in the former her role is that of taking complaints from either party which are in contravention of the Act, and to assist the aggrieved parties in reaching a settlement.33 Further, if no settlement can be reached within fourteen (14) days, the Commissioner shall refer the matter to the Labour Minister.
It appears from the above that St. Kitts-Nevis either falls short of the international standard, or has simply enacted that which is within its “national practice.”34 Thus, if closure of the business is contemplated in St. Kitts-Nevis, as long as employees are given the requisite notice and payments, the law has been upheld. Passing on information of the imminent actions to an ‘authority’ is of no significance, from which it may be assumed that the law does not safeguard the ‘saving’ of jobs in St. Kitts-Nevis, as seems to be the aim of the provisions from the ILO.
In St. Kitts-Nevis, the burden of proof in all matters of termination
of employment rests on the employer35, while the ILO defines termination
as “termination of employment at the initiative of the employer.” The
employers’ burden is a heavy burden indeed!
Jamaica vs. ILO
The Labour Relations and Industrial Relations Act 1975 of Jamaica guarantees trade union membership by employees without recriminations from employers.36 And bribery or acts of intimidation by the employer may not impinge upon such a right of the employee.37 This right is also provided for in the ILO Convention38, bringing Jamaica in line with international standards as far as union membership is concerned.
In addition, this Act states that if a dispute has been referred to the Industrial Disputes Tribunal in respect of the dismissal of a worker, the Tribunal -
“shall, if it finds that the dismissal was unjustifiable and that the worker wishes to be reinstated, order the employer to reinstate him, with payment of so much wages, if any, as the tribunal may determine…39
Those are the only provisions relating to termination of employment from this legislation. All other provisions on the subject are found in the Employment (Termination and Redundancy Payments) Act 1974, which is mainly concerned with termination due to redundancy. It provides –
…for the notice required to be given for the termination of
contracts of employment, for the right of certain employees to certain
facilities for returning to their homes on the termination of their contracts
of employment, for the making by employers of payments to employees dismissed
by reason of redundancy…40
There is intimation here that the Act is restricted to certain categories of workers: those employed under a contract of service; those being made redundant and “certain” others. The Act further defines “employee” as someone who has entered into a contract with the employer (however arrived at), but excludes government employees and those employed by the parish councils throughout the island.
The ILO Convention expressly excludes: casual workers, workers on probation and those employed for a specified period or task.41 Thus the Jamaican statute is not as restrictive as it appears for it does not specify what category of workers are excluded as does the Convention. The legislation is therefore, prima facie, open to a larger body of employees than is the international standard, which, from the employers’ standpoint, may not be as wise as it seems.
The ILO applies to all branches of economic activity42. The Jamaican legislation makes no such assertion, but defines “business” as including trades, professions and group operations “whether corporate or incorporated,”43 a definition which seems to fall within the international standard unless the discourse becomes technical in the interpretation of “professions”.44
As with St. Kitts-Nevis, Jamaica has not left the determination of “reasonable notice” to the courts, but has specified what this should be in terms of the employees’ tenure.45 Further there are provisions for payment in lieu of notice, or for varying the notice periods by agreement between the parties.46 This is in compliance with the Convention’s provision for “reasonable notice” or compensation in lieu of.47
As already stated, the ILO excludes probationary workers from the list of those to which the document applies. Jamaica, however, makes special mention of such workers with regards to termination,48 making such terminable without notice by either party.
Termination without notice for reasons relating to “conduct” is allowable within the Jamaican statute, by “either party” to the contract.49 Here the ILO Convention differs by degree, pointing to “serious misconduct”.50 In this instance, the Jamaican statute is obviously more liberal than the international standard, as ‘conduct’ may be of a positive or negative nature. What type, therefore, warrants summary dismissal in Jamaica? Both the employer and the employee are open to wide definitions and interpretations of “conduct”.
And if the employer ‘accepts’ the ‘conduct’, that is, does not terminate the contract within a specified time, she has acquiesced, and cannot thereafter terminate for that reason.51 As already discussed, this is included in the ILO Recommendations,52 which makes this provision of the statute of international standard.
The ILO Convention points to “termination at the initiative of the employer”53, which may be interpreted to include ‘constructive dismissal’. This has been defined as “conduct [of the employer] which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.”54
The Jamaican statute attaches some measure of importance to constructive dismissal.
For the purposes of this section an employee shall be taken to be dismissed by his employer –
….(c) if he is compelled by reason of the employer’s conduct, to terminate that contract without notice.55
And,
1. Where –
(a) any act on the part of an employer; …
operates so as to terminate a contract under which an employee is employed by him, that act or event shall for the purposes of this Part be treated as a termination of the contract by the employer….56
Here again, the statute has included a concept not specified by international standards, but which is an important concept in any Dismissal Law regime.
Part III of both the Convention and its attendant Recommendations as well as Part III of the Jamaican statute relate to termination by redundancy57 or termination “for economic, technological, structural or similar reasons”.58
In Jamaica, dismissal by redundancy may be due to –
1. the fact that his employer has ceased, or intends to cease, to carry
on the business for the purposes of which the employee was employed by
him or has ceased, or intends to cease, to carry on that business in
the place where the employee was so employed; or
2. the fact that the requirements of that business for employees to carry
out work of a particular kind, or for employees to carry out work of
a particular kind in the place where he was so employed, have ceased
or diminished or are expected to cease or diminish; or
3. the fact that he has suffered personal injury which was caused by
an accident arising out of and in the course of his employment, or has
developed any disease, prescribed under this Act, being a disease due
to the nature of his employment.59
Clearly, therefore, both the ILO standard and Jamaica’s “redundancy” may
be equated, although based on (c) above, illness/injury arising on or
from the job may be a cause for redundancy, but not so as per international
standards.
Conclusion
As would have been expected, The Protection of Employment Act 1986 of St. Kitts-Nevis is definitely more within the international standards stipulated by the ILO Convention and Recommendations, since this was legislated after the ILO standards came into force. Be that as it may, the statute did not encompass every iota of recommendation from the international body, but as the ILO stated, countries in accordance with “national practice” should implement such.60
In addition the Convention allows its articles to also be implemented by “court decisions.”61 Thus, the common law has a role to play in seeing international standards implemented in individual countries.
Jamaica’s legislations might be seen as being “on a frolic of their own.” They are heavy on collective bargaining, industrial relations and redundancies, and almost non-existent on safeguarding workers rights to unjustifiable termination of employment. It means, therefore, that Jamaica is, statutorily, more inconsistent with the international standard than St. Kitts-Nevis. This does not mean that the international standards are being flouted, for as already stated, such may be implemented through court decisions.62
This does not excuse Jamaica from updating its employment laws, not only to meet international standards, but also to meet the developmental needs of society and the ‘global village’ in which we now live.
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