Last week the long-awaited Employment Rights Act finally became the law of the land. Private sector workers and employees of statutory boards now have a series of rights that would make it difficult for an employer to dispense with their services without good cause.
Sadly, while Government passed the legislation in May 2012 and delayed bringing it into force, many employers took advantage of the delay and terminated workers in circumstances that would have been unfair if the act were in force. The 11-month hiatus did not help them, and Government should really take some blame since the actions of those employers were reasonably foreseeable.
Prior to the enforcement of this piece of legislation, employers were only required to give an employee adequate notice to send him packing. Even though the Severance Payments Act made provision for the payment of compensation to workers who were dismissed in those circumstances, an initial misinterpretation by the courts was responsible for many long-standing employees being dismissed without cause and going home without a cent. Thankfully, dismissals of this nature would now be unfair.
In addition to fixing the problem with respect to the interpretation of the Severance Payment Act, the Employment Rights Act generally forces employers to be more humane and treat employees with respect. Mind you, it does not prevent workers from being dismissed; it merely requires employers to act fairly.
However, at this stage, I do not propose to go into the merits of the act. I am seeking to draw attention to the plight of public workers now that the employment rights of the private sector workers have been enhanced.
A number of the provisions of the act have been taken directly from the provisions of the General Orders for the Public Service and Public Service Regulations, 1978.
Up to this point, public servants enjoyed employment rights that were vastly superior to those of workers in the private sector. This has now changed: poor union representation, a court decision in the Winton Campbell case, and the Public Service Act have combined to make private sector employment more desirable.
Recently, the Chief Personnel Officer published a circular advertising for clerical officers to fill permanent and temporary positions. Many temporary officers, some of whom have been employed temporarily in excess of ten years, immediately went into a state of panic. They rightly asked why should they have to apply for jobs that they had been occupying for years. Prior to the Public Service Act, long-term temporary employees only needed a favourable recommendation from their heads of department to be permanently appointed.
Some of them have meekly accepted the official explanation that the new Public Service Act mandates that all posts must be advertised, and believe they must take their chances in the gauntlet of interviews.
The people offering that advice were only partially correct. They neglected to say that people who were working continuously from or before January 1, 2005, to December 31, 2007, are entitled to be appointed permanently without an interview, in accordance with Section 13 (7) of the Public Service Act. Additionally, Section 13 (11) states: “No established office in the Public Service shall be allowed to remain vacant for a period of more than one year except (a) permission to allow the vacancy is granted by the Governor General on the advice of the Service Commission; or (b) the office has been frozen by the minister.”
To my mind, officers who were temporarily assigned an to established post in excess of the statutory period would have a legitimate expectation to fill those posts. When long-standing “temporary” officers are subjected to interviews, who is to say that they would be successful at retaining their jobs? Somehow the cynic in me keeps thinking that might be the reason for the advertisement. Without more, this madness would be unfair and would not be allowed under the provisions of the Employment Rights Act. Regrettably, that act does not apply to the Public Service.
The Employment Rights Act has guaranteed private sector workers a payment or reinstatement if they lose their jobs through no fault of their own. Public officers have no such protection. The local Court of Appeal and the Caribbean Court of Justice have ruled that public officers who lose their jobs in circumstances amounting to severance are only entitled to receive compensation when they reach age 60. Just imagine a public officer, sent home at age 35 through no fault of his own, having to wait 25 years before he sees one red cent.
Government has enhanced the conditions of service for private sector workers and has now made public sector workers an underclass. Rather than make legislative changes to ensure that public officers are not disadvantaged, Government has been moving to exploit the situation in respect of forming the Central Revenue Authority. It has escaped them that they were elected to govern, not to mistreat any sector of society, and certainly not to micromanage the Public Service.
Once people aspired to work in the Public Service because it was permanent and offered benefits like generous leave entitlement, especially in the areas of sick leave, pension and gratuity. Legislative changes and political interference over the years have been making public sector employment less attractive in relation to the private sector. The implementation of the Employment Rights Act has completed that process. As a result, the Public Service would no longer be able to attract the best brains. Maybe we like it so.
• Caswell Franklyn is a trade unionist and social commentator.
