Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

1. The Committee notes the Government’s first report on the application of the Convention received in July 2008. The Government reports that, of the 463 disputes handled by the Labour Department of Antigua and Barbuda, 216 cases were related to termination, suspension, redundancy or layoff of the employee concerned, constituting 46 per cent of the caseload. The Government reports that in 2004–05, of the 53 cases heard at the Industrial Court, 46 related to unfair dismissal, two related to the issue of severance pay, two related to compensation pay, two cases pertained to unfair labour practices and one was for breach of contract. The Government reports that of these 53 cases, none were decided in favour of the employer, 14 were decided in favour of the employee, while the others were either withdrawn, settled out of court, or were pending. The Committee asks the Government to continue providing information on the manner in which the Convention is applied in practice, in particular on the activities of the Industrial Court or the competent labour administration authorities.

2. Article 2, paragraph 2(c). Exclusions. The Government indicates in its report that casual workers are not covered by the Convention. The Committee invites the Government to clarify in its next report whether workers engaged on a casual basis for a short period are excluded from all or some of the provisions of the Convention. If it is the latter, the Government is requested to indicate the specific provisions from which workers engaged on a casual basis for a short period are excluded.

3. Article 4. Valid reason for termination. The Committee notes that section C58(1)(e) of the Antigua and Barbuda Labour Code, as amended by the Labour Code (Amendment) Act, 1998, provides that “[…] some other substantial reason of a kind which would entitle a reasonable employer to dismiss an employee holding the position which the employee held” would not be an unfair reason for dismissal. The Committee would welcome receiving information on what might be considered an “other substantial reason” which would entitle a reasonable employer to dismiss an employee, as envisaged under section C58(1)(e) of the Labour Code, such that full effect might be given to this provision of the Convention. Please also supply copies of the leading decisions of the Industrial Court on valid reasons for termination.

4. Article 5, paragraphs (c) and (e). Invalid reasons for termination set out in the Convention. The Committee asks the Government to also provide information on how effect is given to ensure that (i) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; and (ii) absence from work during maternity leave, do not constitute valid reasons for termination.

5. Article 6. Temporary absence from work because of illness or injury. The Committee notes that section C16(ii) of the Antigua and Barbuda Labour Code, while providing for an employee to take sick leave, provides that “in the event that, in the opinion of this employer the extent of such leave taken renders the employee unfit to continue in his employment and the employer terminates the employment therefore, the employee shall receive compensation […]”. The Committee invites the Government to indicate the manner in which this provision of the Labour Code is resorted to in practice, in particular providing information on the basis upon which an employer may hold the opinion that the “extent of such leave taken renders the employee unfit to continue in his employment”, such that temporary absence from work because of illness or injury shall not constitute a valid reason for termination.

6. Article 7. Opportunity to defend himself against allegations made. The Government indicates in its report that there are no legal provisions in reference to this provision of the Convention, but it is standard practice for workers to be afforded the opportunity to defend themselves. The Government reports that if this is not done then the dismissal will be deemed unfair. The Committee requests the Government to provide more information on its practice and supply it with any court decisions in which the failure to give an employee an opportunity to defend him/herself was deemed to be unfair.

7. Article 8, paragraph 3. Time limits for the appeal procedure. The Committee requests the Government to indicate in its next report whether any time limits are in place for the worker to exercise a right of appeal to an impartial body against termination of employment, after which the worker may be deemed to have waived this right of appeal.

8. Articles 13 and 14. Terminations of employment for economic, technological, structural or similar reasons. The Committee requests the Government to indicate in its next report how effect is given to Article 13, concerning consultation of workers’ representatives, and Article 14, concerning notification of terminations to the competent authority, in cases of termination of employment for economic, technological, structural or similar reasons. The Committee also reminds the Government that the minimum period of time referred to in Article 14, paragraph 3, has to be specified in national laws or regulations.

[The Government is asked to reply in detail to the present comments in 2009.]