Industrial Court calls for change to contract practices after general elections

PRESIDENT of the Industrial Court Heather Seale is advocating for provisions to be made at state agencies when there is a change of administration after a general election to avoid leaving workers of these organisations in limbo.

Seale made the recommendation after she dismissed a trade dispute between the Oilfield Workers’ Trade Union (OWTU) and the National Training Agency (NTA) over the filling of a vacant position at the agency in 2016.

In a decision on July 26, the Industrial Court’s president said the practice of freezing contract employment and restructuring plans until a new board is appointed after a general election was “disruptive” and a frequent occurrence, as seen in cases before the court.

“In the interim,” she said, “workers are offered month-to-month contracts and their future employment is thrown into uncertainty…

“It is the court’s view that it is now such a frequent occurrence that perhaps the time has come for stakeholders to make provision for such eventualities especially where they result in job losses.”

Seale said the court “frowned” on the practice of putting workers on month-to-month contracts.

“However, regrettably, it is not uncommon in the public sector.”

She said while an assessment of organisations, such as the NTA, was understandable even be necessary from a policy standpoint after a general election, “it was disruptive and put the employees in a state of limbo.”

The OWTU’s dispute concerned the filling of the post of senior co-ordinator, held by Renee Bobb-Semple. Bobb-Semple had joined the NTA in 2008 and in 2010, was appointed to the post on contract.

In 2015, the NTA revised its structure and converted some contract positions to permanent positions. Bobb-Semple’s position was not one of them.

After the general election in September 2015, the NTA’s restructuring exercise was halted and the NTA was told by the line ministry – the Ministry of Education – that no new appointments or renewal of contracts should be done until a board was appointed.

In January 2016, the OWTU wrote to the NTA about the vacant position of senior co-ordinator and was told if no board was appointed, the worker would be kept in employment. Bobb-Semple was kept on a month-to-month contract. She was then offered a permanent position at a lower salary.

The union filed a trade dispute in September 2016. However, Bobb-Semple resigned from the NTA in May 2017, because the agency failed to rectify her employment since, for 14 months, no new board had been appointed.

She then took up a contract with the Strategic Services Agency as a curriculum development officer.

In the dispute before the Industrial Court, the union argued that Bobb-Semple was told in September 2015, that the organisation was going through a restructuring process and that her position was being made redundant, while all other contract employees, and their positions, were made permanent.

The union asserted that up to 2023, the post remained part of the agency’s structure. The OWTU argued that the decision not to make her position permanent, but to deem it redundant, was unfair and unjust, since it remained after she left.

The NTA was also accused of harsh, oppressive and unjust conduct.

However, in its defence, the NTA’s attorney Kiel Taklalsingh argued that the senior co-ordinator position was made permanent because the agency hoped to introduce the position of junior manager to replace it.

However, Taklalsingh said this was halted by the general election and the ministry’s instruction on hiring and contract renewals.

The agency also argued that Bobb-Semple was not entitled to exemplary damages, since she suffered no immediate loss of employment, nor was she dismissed, but resigned when she got another job.

He also contended that the NTA’s conduct was not egregious.

In her ruling, Seale said there was never an established post of senior co-ordinator. She also said while Bobb-Semple’s position was understandably unacceptable to her (the worker), the OWTU failed to show she had been singled out.

She also held the NTA did not discriminate against Bobb-Semple by failing to offer her a permanent position of senior co-ordinator.

“There was no vacant position which could have been filled by the worker as it was never an established one and never intended to be made permanent.”

She also pointed out that Bobb-Semple continued to do the same duties with the same remuneration, except on a month-to-month basis, but the union did not not raise this as a complaint.

Seale said there was no basis to uphold the union’s case, as it was unable to convince her that the NTA was in a position to fulfil the request (for Bobb-Semple to fill the vacant position) and failed to do so for reasons not in keeping with good industrial-relations practice.

Attorney Arden Williams represented the OWTU.