Plus ca change... The interpretation of new individual employment rights in the Commonwealth Caribbean
| Author | Jeff Cumberbatch |
| Position | Head, Teaching Department of Law and Senior Lecturer in Law, University of the West Indies, Cave Hill Campus, Barbados |
| Pages | 342-378 |
PLUS CA
CHANGE
... THE INTERPRETATION
OF NEW INDIVIDUAL EMPLOYMENT RIGHTS IN
THE COMMONWEALTH CARIBBEAN
JEFF CUMBERBATCH
INTRODUCTION
The importance of "holding down" a job has rarely, if ever, been
doubted. For example, the European Social Charter enjoins the
member States of the Community to "protect effectively the right of the
worker to earn his living in an occupation freely entered upon."1 One
writer who asserted that work had come to mean "self respect [and]
even psychological health," saw prolonged unemployment, on the other
hand, as being "for most people, a profoundly corrosive experience,
undermining personality and atrophying work capabilities."2 Other
documentations of the effect of job loss all bear out its crushing impact
on the individual, his family and the society. A former employee
described the experience of dismissal as "rather like being mugged. I
sit at home feeling faint and dizzy and shocked."3 Robert A. Rothman
argues that job loss:
Head, Teaching Department of Law and Senior Lecturer in Law,
University of the West Indies, Cave Hill Campus, Barbados.
1 Article 1(2). See Vivien J. Shoubshall, "The European Social Charter:
Employment, Unions and Strikes", in Economic, Social and Cultural
Rights, Progress and Achievement, R. Beddard & D. Hill, eds.
(Macmillan, 1992). See also Article 8 of the United Nations Declaration
of the Right to Development (December 19S6) which requires the ensuring
of "equality of opportunity for all in their access to basic resources"
including employment. Some Commonwealth Caribbean jurisdictions
guarantee a right to work either statutorily; see Dominica: Protection of
Employment Act 1977, section 3 ("A right to work is hereby established
...") or constitutionally, see Guyana: Constitution (1980), Articles 22(1)
and (2) ("... a corresponding duty to work"); B. Hepple, "A Right to
Work?"
(1981) 10 Industrial Law Journal 65.
2 P.D. Anthony, The Ideology of Work (Tavistock Publications, 1977) 313
quoting from J. Harrison, The Early Victorians 1832-51 (London, 1971).
Also R.D. Thomas, The Adjustment of Displaced Workers in a Labour
Surplus Economy (ISER 1972).
3 Virginia Ironside, "Gonna sit right down and write myself a letter", The
Times, December 29, 1992,
p.
10.
"disrupts social relationships
and
threatens
the
basis
of
one's
identity
and
role
in
larger society. Because
it
touches families
and others
who are not
directly affected,
it is a
social problem,
not just
an
individual one."4
He came
to
this conclusion because,
for him,
work offered benefits
and
had
meaning beyond
the
simple material rewards. Among these
were inner satisfaction from performing
a
job,
a
sense
of
self-identity,
exposure
to new
people
and
areas,
the
social value
of the
importance
of being employed
to the
wider public
and the
social contact which
came from workplace friendships
and
recreational activity.5
The
personal
and
social costs
of
unemployment could then
be
harsh.
Financial problems will arise, friends
may
tend
to
stay away
and
family roles will have
to be
readjusted.
The
presence
of
self blame
("if
only
I had
worked harder")
is
likely
to be
aggravated
by a
loss
of self-
esteem
and
increased self-doubt through inability
to
find other
employment. Ultimately,
the
person's health
may
suffer
and
initial
nervousness
and
tension might eventually lead
to
heart disease. Surveys
have discovered fear, boredom, headaches, dyspepsia
and
sleep
disorders. Alcoholism
and
psychiatric disorders have also been
revealed
by
empirical studies.6 Thus, whether
it is
likened
to a
prison
sentence,7 capital punishment,8
or
results
in an
absence
of
proper
nutrition,9 dismissal from employment nowadays
is
likely
to be
damaging.
Nor is it
unlikely.
The
spectre
of
joblessness confronts
virtually
all
workers
in
market economies. Some workers
may be
protected
by
long-term contracts
and
tenure arrangements,
but
even
they cannot
be
absolutely free from
the
threat
of
displacement.10
Governments have therefore devised strategies
to
deal with these
harmful consequences. Some jurisdictions have adopted
the
concept
of
4
In
Working
-
Sociological Perspectives (Prentice Hall,
N.J
1987)
207.
5
Ibid. See
also Renwick
&
Lawler, "What
You
Really Want from Your
Job",
11
Psychology Today
57 (May
1978).
6
B.
Bluestone
& B.
Harrison,
The
Deindustrialisation
of
America
(New
York,
1982) Ch. 3.
7 J.
Gleeson,
in the
Foreword
to M.
Redmond, Dismissal
Law in the
Republic
of
Ireland (ILSI,
1982) ("...
collapse
of
family plans, ill-health
and tragedy
...").
8
The
Role
of
Labour
Law in
Developing Countries
- ILO
Labour-
Management Relations Series
No. 49
(Geneva,
1974) 12,
para.
33.
9 Farley Brathwaite, Unemployment
&
Social Life (Antilles Publications,
1983),
Ch. 2.
10 Rothman,
op. cit. n. 4, 208.
the "dole" or unemployment benefit which guarantees a dismissed
worker a sum of money for a limited period on certain conditions.11
There may also
be job
training schemes12 which can only be practical,
however, provided there is the subsequent availability of meaningful
employment in the area of
training.
Modified versions of workfare,13
("welfare with a price tag"), also exist, though not under that name, in
the form of public works programmes such as "debushing gangs" and
the similar but more elaborate scheme in Trinidad & Tobago which has
gone under names such as DEWD, Special Works, LIDP and URP.
These devices however are clearly predicated on the assumption that
dismissal has occurred, or that unemployment exists. More direct
action has been in the form of employment protection, in the sense of
job security. These attempts have ranged from the strengthening of
the
employees' meagre common law rights14 to legislation requiring the
employer to pay the employee a lump sum if the job disappears,
whether as a result of technological advance, "downsizing" or natural
disaster.15 The major device however, has been the regulation of the
employer's power of dismissal so that the worker is provided with
some security of tenure in the job
itself.16
To a large extent, this has
been effected through legislation17 which attempts to eradicate the
ineffectiveness of
the
common law in this context.18 However, because
of the judicial tradition, legislative reform of this nature creates a
" See National Insurance and Social Security (Benefit) Regulations 1967
(Barbados) regs. 45-60 [as amended, The National Insurance and Social
Security (Miscellaneous Amendments) Regs. 1988 - SI 1988-16.
12 See Occupational Training Act, Cap. 42, Laws of Barbados (1986).
13 This word appears to be American in origin. See William Safire, Quoth the
Maven, (Random House, New York, 1993), 36.
14 See, for example, Contracts of Employment Acts 1963 & 1972 (U.K.) now
Employment Protection (Consolidation) Act 1978, section 49. Also
Severance Payments Act, Cap 355A Laws of Barbados, (1986) section 20.
15 Severance Payments Act, Cap 355A (Barbados), section 3; Labour Act
1975 (Mauritius), section 34; generally, Employment Protection
(Consolidation) Act 1978, sections 81-110.
16 B. Hepple, "Security of Employment", Chapter 20 in Comparative Labour
Law and Industrial Relations R. Blanpain.ed., (Kluwer, 1982)355. Reich,
"Commentary on "The New Property'"'(1991) 100 Yale L.J. 1467.
17 For example, Employment Protection (Consolidation) Act 1978, sections
57-80;
Legislative Decree No. 22126 (March 21 1978) of Peru: "... to
protect the right of workers to maintain their employment relationships and
to provide for the grounds on which such relationships may be terminated."
18 According to Rideout's Principles of Labour Law (5th edn. Sweet &
Maxwell, (1989)) 144, "the common law afforded no job security".
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