Is it Time to Consult About Short-time?

In the case of Bent v Jada Builders Inc., Mr Bent was a full-time employee. And he earned $10,200.00 per month. Jada Builders Inc. (JBI) asked Mr Bent to work part-time (i.e. 2½ days per week) during February 2019.

The Tribunal ordered JBI to pay an award of $5,100.00 (i.e. half of Mr Bent's monthly pay) to Mr Bent. Because JBI did not inform or consult with the Chief Labour Officer – about placing Mr Bent on short-time - as per sections 38(5)(b) or 38(7)(c) of the Employment Rights Act 2012 (ERA).

 

Analysis 

 

Section 38(3) of the ERA defines “short-time” as follows – 

“An employee shall be taken to have been placed on short-time for a week if by reason of a diminution in the work provided for the employee by the employer, being work of a kind which under his contract the employee is employed to do, the remuneration of the employee for the week is less than half a week's wages.”

Paragraph 21 of the case transcript states that Mr Bent “essentially worked half of each week for the month of February”. And Mr Bent was not placed on short-time as per section 38(3) of the ERA - if he was paid half of a week's wages for each week in February. Because Mr Bent's pay would not have been less than half a week’s wages for each week in February. Therefore, JBI would not be legally obliged to inform or consult with Mr Bent (or any other person) as per section 38 of the ERA. Or Mr Bent would not be entitled to an award under section 39(2)(b) of the ERA.

Please note that JBI did not attend the Tribunal hearing. And therefore, the Tribunal's ruling was not legally challenged by JBI.

Also see the news item entitled Confusion About Awards for Unfair Dismissal.

(An employee may claim a severance payment (SP) – if they have been placed on short-time for a certain length of time (e.g. 13 or more consecutive weeks): section 6(1) of the Severance Payments Act (SPA). See the definition of short-time for the purpose of a SP in sections 18(2) and 18(3) of the SPA.)

Government’s Statement About Retirement Age

On 18 March 2022, the Government issued a statement about retirement age. The statement is available at the Barbados GIS website.

Analysis 

The Government’s statement about retirement age wrongly refers to section 30(1)(c)(xi)(A) of the Employment Rights Act 2012 (ERA). Because this section of the ERA was deleted by the 2^nd Schedule of the Employment (Prevention of Discrimination) Act 2020 (EPDA).

It is an anomaly that a public sector employer may rely on public sector laws to defend a retirement age discrimination claim as per section 22 of the EDPA. But a private sector employer cannot rely on any law to defend such a discrimination claim. Hence the EDPA and the ERA must be amended as follows.

Amendments to the EPDA 

The EPDA must be amended to exclude any employee from claiming unlawful age discrimination – if their employer has a normal retirement age (NRA) (e.g. 65, 67 or 70 years). And the employee was dismissed on the grounds of retirement on or after the NRA.

A contractual retirement age (CRA), an employee's awareness of - or agreement to a NRA - does not prevent the employee from successfully claiming - that their retirement dismissal amounted to unlawful direct age discrimination. In other words, a CRA, or such an awareness or agreement to NRA - does not override an employee’s discrimination rights - under the EPDA or section 31(1)(d) of the ERA. Please note paragraph 93 of Chefette v Harris (CCJ).

Amendments to the ERA

The ERA must be amended to exclude any employee from claiming unfair dismissal - if their employer has a NRA (e.g. 65, 67 or 70 years). And the employee was dismissed on the grounds of retirement on or after the NRA.

(The author respectfully disagrees with the Tribunal’s decision in the case of Grant v Barbados Beach Club. The author's opinion about the case can be viewed in the below comments.)