“Had I known that Jamaica’s labour laws were like this, I would have taken my business elsewhere.” I’ve heard this sentiment from 2 separate owners of Business Processing Outsourcing companies (BPOs) or ‘call centres’. They complained that by the time they got a full appreciation of how unbalanced our labour ‘laws’ were against the employer, they had already invested too much in Jamaica to change direction.
The problem with these labour ‘laws’ is that they aren’t laws at all. We have a Labour Relations Code that is 40 years old, drafted when the workplace looked very different than it does now. When it comes to disciplinary matters, section 22 of the Code merely says that the worker should be given the allegations against him in writing, given an opportunity to state his case and be accompanied by a representative, and allowed an opportunity to appeal a decision against him to a level of management not previously involved. That’s it. Everything else concerning the disciplinary process comes from a variety of sources, such as court procedures, which are not suited to a business environment. Local employers have been complaining to the Ministry of Labour and Social Security for years that much more needs to be done to publish an updated guide on the minimum procedural safeguards when conducting disciplinary hearings. For years, we have been told that efforts are underway to provide that certainty that is crucial to any business. If we wish not only to attract, but also to retain international employers, such as the Call Centres, we need to do away with unwritten rules.
An example of an unwritten rule that is currently causing problems for employers is that an employee must be permitted to confront his accuser. This was borrowed from the law of criminal practice and procedure, where it has worked to the detriment of many complainants, especially women in rape and sexual assault cases. In a recent case, a Call Centre supervisor was accused of sexual harassment by a subordinate. It reached the point where she felt compelled to resign and emigrate for her own safety and peace of mind. Before her departure, she filed a written report against her supervisor with the HR Department and provided copies of his lewd text and voice messages. One of the issues that the Call Centre had to address was whether they had a duty to bring her back to Jamaica to be subjected to the possible humiliation of being cross-examined by her harasser. What if the victim refused? Would the employer be unable to dismiss the supervisor? What about its duty to protect the other female employees from being harassed? Often, the employer finds itself calling on the Ministry of Labour for advice on what to do.
Regrettably, the Ministry of Labour is in a position of conflict. They say that they are there to serve both the employer and the employee, but how does it work in practice? Some officers will offer guidance to employers over the phone, but many will not. Nobody will put anything in writing. In contrast, when an employee or a former employee makes a complaint, the employer can expect to receive a stern letter from the Ministry.
The BPO presents a unique challenge to the Ministry of Labour. It is an intermediate employer, meaning that its employees are assigned to specific overseas clients, many of whom are based in the USA where the labour laws offer little to no protection to the worker. If the client wants an employee to be immediately removed from its account, the BPO has no choice but to do as the client wishes. There is no point in quoting section 22 of the Labour Relations Code or reading a paragraph from the latest ruling from the Industrial Disputes Tribunal. Unlike other countries, particularly in Latin America, there is no limit on the amount of money that an employee can receive as compensation for unjustifiable dismissal. Thus, a BPO can be required to pay millions of dollars simply for following its client’s instructions and protecting the jobs of the hundreds of other workers assigned to that client.
Many of these corporations were told that Jamaica is the place for them to do business. We have a relatively low minimum wage, English is our first language and we’ve passed laws to ensure that the pesky scamming problem they heard about a long time ago would be brought under control. What they are not told is that, in Jamaica, our Industrial Disputes Tribunal is less concerned with whether an employee is guilty of misconduct as it is with whether the employer followed some unwritten procedural rule, such as the relevantly new rule that requires employers to schedule a third disciplinary hearing if the worker missed the first two without any reasonable excuse. It is more concerned with whether the person who signed the letter setting out the allegations against the worker was also the person who conducted the disciplinary hearing rather than whether the employee was guilty of the allegations themselves. It is this priority of form over substance that is at odds with the expectations of the international corporations that are hastily setting up shop.
Our government has said that it wishes to attract more BPOs and their clients to our shores to provide jobs, jobs, jobs. However, so long as our ‘laws’ are designed to keep the workers in those jobs at all costs, international corporations and even local entrepreneurs will be reticent to take on new employees knowing that the odds are so stacked against them. If it is serious about creating jobs, jobs, jobs, the government ought to put serious time and effort into reforming the labour law landscape into a level playing field.
Gavin Goffe is a Partner at Myers, Fletcher & Gordon and is a member of the firm’s Litigation Department. Gavin may be contacted via gavin.goffe@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.
