By Dwight Nelson, Contributor 
Nelson
THE ILO convention 158 prescribes procedures, which speak to the need to protect workers and ensuring that their employment is only terminated for valid reasons.
The workers in Jamaica have literally been traumatised over the last 15 years because of frivolous lay-offs and unfair terminations of employment contracts. Many experienced workers in their 40s and early 50s have been thrown on the scrap heap of unemployment, inflicting untold sufferings and deprivation to thousands of men women and children.
Jamaican employers have embarked on a cutting process, which can only be described as 'delayering' or downsizing leading to 'dumbsizing'. Many organisations in Jamaica have reduced their workforce to the point where they lack the skills needed to offer quality service to the public. The staff remaining are frustrated, stressed out, overworked and demoralised. The target is numbers rather than the quality of the staff leaving. This obsession with numbers has led to a devaluation of the competence base in many companies. Our public utilities, water, light, telephone, are cases in question.
UNFAIR DISMISSALS
There is a definite tendency to dismiss workers frivolously. Indeed an examination of disputes reported to the Industrial Disputes Tribunal reveals that 38 per cent of all disputes referred to this body were for unfair dismissals. It is this recognition which makes the existence of the Employment Termination and Redundancy Payment Act of 1974 so vital in ensuring justice and fair play for the Jamaican worker.
To state that this piece of legislation is a disincentive for potential investment is to create the impression that Jamaica is unique in promulgating such a law. Indeed Jamaica is in some instances abreast of similar legislation in other countries, in others it is far behind.
Let us look at how some other countries address the issue:
In Australia there exists redundancy regulations, which provides for compensation in the case of dismissals for reasons of redundancy. In New Zealand for a dismissal to be fair, an employer must show that the dismissal falls within one of the following potentially fair reasons: conduct, capability, illegality or redundancy.
Under their regulations, redundancy means 'superfluous' or 'extra'. To make an employee redundant the employer must require fewer employees to carry out work of a particular kind. Therefore you cannot be genuinely redundant if you are to be replaced.
One can see the importance of regulations like this when compared with the Jamaican situation where workers are simply dismissed on the grounds of redundancy and replaced the following day.
In the United Kingdom (UK) and the rest of Europe, laws in each individual European country govern the rules and procedures for work force reductions. In most European countries there is a statutory requirement that there must be advanced notice to a State Body of impending redundancies.
THE LAW
In the UK the law prescribes redundancy for business closures, workplace closures, and the diminishing need for work of a particular kind. The law also prescribes that the employer in a redundancy situation must:
Give as much notice as possible to the union and affected employees
Seek to agree with the union the criteria to be applied to selected employees
Seek alternative employment for the employees as an alternative to dismissal
Where 20 or more redundancies are proposed at one establishment, over a period of 90 days or less, then the employer must consult with appropriate employee representatives.
The law also prescribes that the employer must disclose to the employee representative the following information in writing:
The reasons for the proposed redundancies
The number and description of employees proposed to be dismissed
The total number of employees of this description employed by the employee
The proposed method of selection of employees
The proposed method of calculating redundancy payments
It is interesting to note that the law prescribes that an employee who has been given notice of dismissal by way of redundancy must be allowed reasonable time off during working hours to look for new employment or to make arrangements for training for future employment.
Redundant employees are entitled to a statutory redundancy payment calculated by reference to their age, length of service and salary. Redundancy payments are not subject to deductions for income tax.
Clearly this law is more stringent than that applicable in Jamaica.
IN FRANCE
In France the law provides that there must be an economic reason for the dismissal. The dismissal must result from a reduction or transformation of the job, or a substantial modification of the contract of employment following economic difficulties or technological changes.
Employers must notify the French Labour Authority within eight days of notice being given to employees and enter the information on its personnel register and on the company's monthly statement. The criteria for redundancy are stipulated in law, as also how they are to be applied and in what order.
In the Netherlands the employment relationship can only be terminated through a dismissal permit obtained from the District Employment Services Authority, or through dissolution by the Cantonal Court.
DISMISSAL PERMIT
A request for dismissal permit will only be considered after one month after notice has been given unless there are no objections from trade unions. While there is no statutory prescription for payments, it is usual for severance payments in some form to be made, and the Cantonal court may make an award on dissolution in cases of collective redundancies.
No such provisions are contained in the Jamaican law. There is no obligation on the part of the Jamaican employer to notify the Ministry of Labour of impending redundancies.
There have been many cases where not even the affected workers have been notified. Workers have been told at the end of a work day that they have been made redundant and should not report for work the next day. In Sweden there is no strict definition in law. However, if an employee challenges the dismissal the employer must prove that a genuine redundancy situation exists. A dismissal for reasons of redundancy is considered unfair if an alternative post exists which could be offered to the employee instead of dismissal. If the employer proposes to make five or more people redundant, it must notify the Country Labour Board. If no more than 25 are to be made redundant the employer must give two months notice of the dismissals.
If between 25 and 100 employees are to be made redundant then four months notice must be given and six months notice for 100 or more employees.
In the United States of America, managers can lay off much more casually than in other countries in response to deterioration of profits or productivity.
The Worker Adjustment and Retraining Notification Act of 1988 (WARN) represents a departure from the "fire at will" policy. Before the Act, employers were constrained in protecting workers against discrimination and other forms of unfair dismissals but there was no protection against mass lay-offs for economic reasons. Under WARN firms with more than 50 employees must give 60 days notice of impending plant closure or lay-offs of one third or more of the work force to the workers and the community.
Closer to home, redundancy in Trinidad is governed by legislation. Where five or more persons are to be laid off the Act requires a formal notice of at least 45 days prior to lay-off. Termination benefits are payable to employees with over one year's continuous service, and are calculated on the basic wage paid at the time of termination as follows: more than one but less than five years continuous service 2 weeks pay for each year of service; five years or more three weeks pay for each year of service. Retrenchment benefits are treated as priority payments in a winding up. There is a tax exemption on severance payments up to $100,000.
TRINIDADIAN LAW
The Trinidadian law is even more favourable to the worker than the Jamaican law. It is patently clear, therefore, that the Jamaican situation is not unique as many other countries have similar pieces of legislation. They have no problems with attracting potential investors.
One of the proposals made by Sameer Younis is for the Redundancy Law to be replaced by a "national pension scheme; which would be transferable from place to place with the worker and employer contributing to it."
Mr. Younis is clearly not up to date on what is happening in the society.
There is a proposal by the Government for a national pension plan. This is in an advanced state of discussions and the social partners have already agreed on the portability of such a plan. The pension scheme he suggests would also serve as an "unemployment fund, from which workers who lose their jobs would be able to draw unemployment benefits up to what they put into the scheme." Whilst such a scheme is desirable, in most countries it exists in addition to redundancy laws.
In Britain, for example, the term social security refers to the whole system of compulsory social protection, including unemployment and sickness benefits as well as pensions. The system is known as "national insurance". This is in no way equated with redundancy payments.
In the United States, a single pensions programme operated by the Federal Government covers the entire working population. Public pensions are provided almost exclusively by the Old-Age, Survivor and Disability Insurance Programme (OASDI). The Social Security Act of 1935 created new programmes of social assistance and unemployment insurance. This is in no way associated with compensation for unfair dismissals or redundancies.
Mr. Younis would be advised to focus on the very profitable National Insurance Scheme (NIS) to see how best this fund can be reformed to provide for unemployment Insurance.
SERIOUS PROBLEMS
Unemployment and under-employment are serious problems in Jamaica. In addressing worker displacement: Public Policy and labour- management initiatives, the International Labour Organisation (ILO) advises focus on two areas in targeting displaced workers.
The "supply side" measures: that is, job training and job search assistance
The "Demand Side" measures: that is, accelerating employment creation through public employment, employment subsidies, the growth of small and medium businesses and area-based economic renewal.
This, I suggest, will be more useful for the future development of our country than the repeal of laws which only serve to protect the most vulnerable in the society.
Senator Dwight A. Nelson is vice-president of both the Bustamante Industrial Trade Union and the Jamaica Confederation of Trade Unions.
