“[…] The period of layoff as generally outlined by the industrial court is a maximum of three months. If there is no resumption of work, a worker is entitled to claim his severance pay…
“[…]What we have witnessed since the pandemic, is that employers have been in breach of the law and what the industrial court considers good industrial relations principles and practices. They have become a law unto themselves…”
The following letter to the editor defines what layoffs are and how industrial laws intend they be used. It was submitted to Wired868 by Gerry Kangalee, education and research officer at the National Workers Union:
There is much confusion, particularly among workers who are not unionised, about what is a ‘layoff’. Some confuse it with retrenchment, which it certainly is not. It certainly is also not the same as no-pay leave, which some employers are trying to shove down workers’ throats.
Let us see what the law says about layoffs, which, in fact, has been a feature of our industrial relations culture for many years. As set out in Trade Dispute No. 99 of 1990 (Communication Workers Union and J.N. Harriman and Co. Limited): ‘An employee may be said to be laid off when he is not offered work for a temporary period.’
Therefore, according to the prevailing jurisprudence, a layoff is at the initiative of the employer. It is the suspension of the worker’s employment contract.
In the Interpretation of Collective Agreement (ICA) No. 9 of 1986 (Transport and Industrial Workers Union and Consolidated Appliances Limited), a layoff is described as ‘a right which an employer may use only when the circumstances demand it. It must not be abused or be as a result of a whimsical decision. It must be required by the circumstances, which must be beyond the control of the employer and not of his own making.’
A layoff, therefore, is due to no fault or misconduct of the worker. The intention is that the worker resumes the contract when the situation causing the layoff has abated.
It has been part of collective agreements with employers. For example, the National Union of Government & Federated Workers (NUGFW)/Chief Personnel Officer (CPO) Collective Agreement provides that the regular workers will get at least five days’ notice prior to layoffs.
The period of layoff as generally outlined by the industrial court is a maximum of three months. If there is no resumption of work, a worker is entitled to claim his severance pay.
The industrial court set out in IRO 31/2015 (SWUTT v Arcelor Mittal Point Lisas Ltd):
“[…] the legal difficulty which the employer faces is that the employer has no inherent right to suspend a worker and fail to pay wages due by means of a layoff because of a redundancy situation unless it is an express term of the contract of employment or incorporated by way of a Collective Agreement pursuant to Section 47(2) of the IRA, or implied using the regular principles of the law of contract or the custom of the particular trade or industry.
“This is a well-established principle in law, which the court has recognised. Moreover, even if there is such a right, the implied duty of respect, trust and confidence which an employer owes to the employee requires reasonable notice of such an action, even if such notice was not stipulated in the Collective Agreement.”
In enacting a layoff, the court has advised that the procedures set out in the Retrenchment and Severance Benefits Act (RSBA) be followed. It states: “The most significant procedural considerations in the RSBA are a formal detailed notice of the proposed action, the date of the proposed action and the criteria used in the selection of the workers to be affected and significantly, prior to giving formal notice, enter into consultation with the RMU [Recognised Majority Union, if there is one] with a view to exploring the possibility of averting, reducing or mitigating the effects of the proposed action.”
What we have witnessed since the pandemic, is that employers have been in breach of the law and what the industrial court considers good industrial relations principles and practices. They have become a law unto themselves.
They don’t give a reasonable period of notice of layoffs, nor invite anyone to discuss the situation to avert such drastic measures. Workers are not being afforded the exercise of their right to be heard contrary to the principles of natural justice, which are supposed to be basic to the legal system, which prevails at present.