A lot has been said recently about the principle of “last in, first out” as it relates to the termination of workers at the National Conservation Commission.
Last in, first out is one method used in selecting employees to be made redundant. However, what is required ultimately in a redundancy situation is to ensure that the impact on the workforce is minimised and that the process of selection is done fairly.
The statutory provisions relating to consultations are intended in part to assist with the above objectives. It is therefore useful to be familiar with them.
It is for this reason that today I set out in full those provisions which are found in Sections 31(4)(5)(6) and (7) of the Employment Rights Act.
“(4) Where it is contemplated that the workforce of the business of an employer will be reduced by ten per cent or any other significant number, before dismissing an employee, the employer shall
(a) carry out the consultations required by subsection (6)(b); and
(b) supply the employee or the trade union recognised for the purpose of bargaining on behalf of the employee (if there is one) and the Chief Labour Officer, with a written statement of the reasons for and other particulars of the dismissal.
(5) The statement referred to in subsection (4)(b) shall contain particulars of:
(a) the facts referred to in subsection (2) relevant to the dismissal;
(b) the number and categories of affected employees and the period during which their dismissals are likely to be carried out, where any employees, in addition to the employee in question, are affected by those facts.
(6) The consultations referred to in subsection (4)(a) are consultations with the affected employees or their representative, being consultations conducted in accordance with the following requirements:
(a) the consultations shall commence not later than six weeks before any of the affected employees is dismissed and shall be completed within a reasonable time;
(b) the consultations shall be in respect of
(i) the proposed method of selecting the employees who are to be dismissed;
(ii) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take place; and
(iii) any measures that the employer might be able to take to find alternative employment for those who are to be dismissed and to mitigate for them the adverse effects of dismissals; and
(c) where, in any case, there are special circumstances which render it not reasonably practicable for the employer to comply with any of the requirements of paragraphs (a) and (b), the employer shall immediately consult with the Chief Labour Officer and take all such steps towards compliance with the requirement as are reasonably practicable in all the circumstances.
(7) In subsections (5)(b) and (6) “affected employees” means all the employees affected by the facts mentioned in subsection (5)(b).”
In order for the termination of an employee on the basis in redundancy to be fair, the employer is required to comply with Sections 31(4)(5) and (6) outlined above.
In respect of employees dismissed from statutory boards recently, if the above provisions have been breached in relation to them, it would appear that they could file a case under the Employment Rights Act for consideration of the tribunal.
• Cecil McCarthy is a Queen’s Counsel.