Termination of Employment Convention, 1982 (No. 158) - Antigua and Barbuda (Ratification: 2002)

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes that that Government’s report contains no reply to its previous comments. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2011.

Repetition

Article 2(2)(c) of the Convention. The Government previously indicated that, pursuant to proposed amendments to the Antigua and Barbuda Labour Code, the term “short period” with regard to workers engaged on a casual basis should describe a period not exceeding four weeks. The Committee notes, however, that no information is provided by the Government regarding any legislative or other measures relevant to the application of the Convention, including on the content or status of the proposed amendments to the Labour Code. The Committee hope that the Government will take steps to revise the legislation, taking account of the Convention to ensure that full effect is given to its provisions, including Article 2(2)(c).

Article 4. Valid reason for termination. The Committee reiterates its request that the Government continue providing copies of decisions rendered by the Industrial Court relating to Article 4 of the Convention.

Article 5(c) and (e). Invalid reasons for termination. The Committee once again requests the Government to provide copies of any decisions rendered by the Industrial Court relating to Article 5(c) and (e) of the Convention.

Article 6. Temporary absence from work because of illness or injury. The Committee reiterates its request that the Government provide copies of any decisions rendered by the Industrial Court relating to Article 6 of the Convention.

Article 7. Opportunity to defend oneself against allegations made. The Committee once again requests the Government to provide information on measures taken or envisaged to give full effect to Article 7 of the Convention, particularly in terms of affording workers the opportunity to defend themselves against any allegations made prior to termination.

Articles 13 and 14. Terminations of employment for economic, technological, structural or similar reasons. The Committee once again requests the Government to provide information on the manner in which full effect is given to Articles 13 and 14 of the Convention in both law and practice.

Application in practice. The Committee reiterates its request that the Government include available statistics on the activities of the Industrial Court (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time take for an appeal to be decided) and on the number of terminations for economic or similar reasons.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes that the Government’s report received in September 2014 reiterates information provided in its August 2011 report. The Government previously indicated that, pursuant to the proposed amendments to the Antigua and Barbuda Labour Code, the term “short period” with regard to workers engaged on a casual basis should describe a period not exceeding four weeks (Article 2(2)(c) of the Convention). The Committee notes, however, that no information is provided by the Government regarding proposed amendments to the Labour Code. The Committee requests the Government to provide information on the manner in which the Convention is taken into account in the process of revising the legislation in order to ensure full effect with the provisions of the Convention, including Article 2(2)(c). It also requests the Government to include available statistics on the activities of the Industrial Court (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided) and on the number of terminations for economic or similar reasons (Parts IV and V of the report form).

Observations from the International Organisation of Employers (IOE). The Committee notes the communication of August 2014 whereby the International Organisation of Employers (IOE) included Antigua and Barbuda in its observations concerning the application of the Convention.

Article 4. Valid reason for termination. In reply to its previous comments, the Committee notes the decision rendered by the Industrial Court in October 2013, transmitted by the Government. The Committee invites the Government to continue providing copies of decisions rendered by the Industrial Court relating to Article 4 of the Convention.

Article 5(c) and (e). Invalid reasons for termination. The Government reiterates that the collective bargaining process affords shop stewards the right to participate in proceedings against their employer. In addition, by virtue of collective agreements, workers cannot be terminated if they report acts of violations by their employers. It further reports that no decisions relating to Article 5 of the Convention were rendered by the Industrial Court. The Committee invites the Government to provide copies of any future decisions rendered by the Industrial Court relating to Article 5(c) and (e) of the Convention.

Article 6. Temporary absence from work because of illness or injury. The Government indicates that no decisions relating to Article 6 of the Convention were rendered by the Industrial Court. The Committee invites the Government to provide copies of any future decisions rendered by the Industrial Court relating to Article 6 of the Convention.

Article 7. Opportunity to defend oneself against allegations made. The Government reiterates that it is a well-established practice that workers are afforded the opportunity to defend themselves against any allegations made by employers. However, this opportunity is not always afforded to the worker at termination. This practice is mainly applicable to workers governed by the provisions of the Labour Code and non-established government employees. The Government previously indicated that civil servants, police officers and military personnel benefit from their own regulations which provide for a suspension from duties before any effective termination while they await a hearing. The Committee recalls that the purpose of Article 7 of the Convention is to ensure that any decision to terminate employment is preceded by dialogue and reflection between the parties (General Survey on protection against unjustified dismissal, 1995, paragraph 148). The Committee requests the Government to indicate if the proposed amendments to the Labour Code improve the manner in which Article 7 of the Convention is applied. The Committee accordingly requests the Government to ensure in both law and practice that workers are afforded the opportunity to defend themselves before having their employment terminated.

Articles 13 and 14. Terminations of employment for economic, technological, structural or similar reasons. The Government previously indicated that there are no legislative measures in place that ensure consultation with workers’ representatives and the competent authority regarding termination of employment for economic, technological, structural or other reasons (Articles 13 and 14). The Committee previously noted in this regard that recommendations had been made by the National Labour Board (NLB) to address this issue. The Committee requests the Government to provide information on the manner in which the Convention is taken into account in the process of revising the legislation in order to ensure full effect to the provisions of Articles 13 and 14 of the Convention.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the Government’s report received in August 2011 in reply to the points raised in the 2009 direct request. In reply to previous comments, the Government indicates that, pursuant to the proposed amendments to the Antigua and Barbuda Labour Code, the term “short period” with regard to workers engaged on a casual basis should describe a period not exceeding four weeks (Article 2(2)(c) of the Convention). The Government also reiterates that there are no legislative measures in place that ensure consultation with workers’ representatives and the competent authority regarding termination of employment for economic, technological, structural or other reasons (Articles 13 and 14). The Committee notes that recommendations have been made by the National Labour Board (NLB) to address that issue. The Committee invites the Government to provide information on the manner in which the Convention is taken into account in the process of revising the legislation in order to ensure full effect to the provisions of Article 2(2)(c) and Article 7, as well as Articles 13 and 14 of the Convention. It also requests the Government to include available statistics on the activities of the Industrial Court (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided) and on the number of terminations for economic or similar reasons in the country (Parts IV and V of the report form).

Article 4. Valid reason for termination. The Committee notes the three decisions rendered by the Industrial Court in 1995, 1996 and 2002, transmitted by the Government. The Committee invites the Government to continue providing copies of decisions rendered by the Industrial Court relating to Article 4 of the Convention.

Article 5(c) and (e). Invalid reasons for termination. The Government reiterates that the collective bargaining process affords shop stewards the right to participate in proceedings against their employer. In addition, by virtue of collective agreements, workers cannot be terminated if they report acts of violations by their employers. It further reports that no decisions relating to Article 5 of the Convention were rendered by the Industrial Court. The Committee invites the Government to include in its next report copies of any future decisions rendered by the Industrial Court relating to Article 5(c) and (e) of the Convention.

Article 6. Temporary absence from work because of illness or injury. The Committee notes the decision rendered by the Industrial Court in 2003 on a dismissal following an accident at work. The Committee invites the Government to continue providing copies of decisions rendered by the Industrial Court relating to Article 6 of the Convention.

Article 7. Opportunity to defend oneself against allegations made. The Government reports that it is a well-established practice that workers are afforded the opportunity to defend themselves against any allegations made by employers. However, this opportunity is not always afforded to the worker at termination. This practice is mainly applicable to workers governed by the provisions of the Labour Code and government non-established employees. The Government further indicates that civil servants, police officers and military personnel benefit from their own regulations which provide for a suspension from duties before any effective termination while they await a hearing. The Committee recalls that the purpose of Article 7 of the Convention is to ensure that any decision to terminate employment is preceded by dialogue and reflection between the parties (1995 General Survey, paragraph 148). The Committee invites the Government to indicate if the proposed amendments to the Labour Code improve the manner in which Article 7 of the Convention is applied. The Committee accordingly requests the Government to ensure in law and in practice that workers are afforded the opportunity to defend themselves before having their employment terminated.

[The Government is invited to reply in detail to the present comments in 2014.]

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

1. The Committee notes the information contained in the Government’s report received in September 2009, including replies to the 2008 direct request and a judgement of the industrial court dated 27 June 2006, reference No. 9 of 2001, concerning a case of unfair dismissal. The Government also reports that there are no time limits placed in national law for workers to exercise their right to appeal against the termination of employment to an impartial body.

2.  Article 2, paragraph 2(b), of the Convention. Probationary employees. The Committee notes section C8(3) of the Labour Code which permits an employer to terminate employment during a probationary period without giving reason. It also notes the judgement of the Industrial Court (No. 9 of 2001) in which a claim for unfair dismissal was not upheld because termination occurred during a probationary period.

3. Article 2, paragraph 2(c). Exclusions. The Committee further notes that casual workers are excluded from the provisions of the Convention. The Committee asks the Government to indicate in its next report whether laws, regulations or court decisions limit or define what constitutes a “short period” with regard to workers engaged on a casual basis.

4. Article 4. Valid reason for termination. The Committee notes that the Government also indicates in its report that valid reasons for termination, relating to section C58(1)(e) of the Labour Code, include habitual lateness, absence, and a breach of trust between employer and employee. The Committee asks the Government to supply copies of the leading decisions of the industrial court on valid reasons for termination.

5. Article 5, paragraphs (c) and (e). Invalid reasons for termination. The Government indicates that through the process of collective bargaining, shop stewards are given the opportunity to participate in proceedings against an employer. The Government also reports that it is common practice that workers cannot be terminated if they report acts of violations by their employers. With regard to absence from work during maternity leave, the Government reports that once a woman is on maternity leave, she cannot be laid-off. The Committee asks the Government to indicate how effect is given to Article 5(c) of the Convention which provides that the filing of a complaint or the participation in proceedings against an employer involving an alleged violation of laws or regulations does not constitute a valid reason for termination. Please provide copies of the leading decisions of the industrial court on matters covered by Article 5.

6. Article 6. Temporary absence from work because of illness or injury. In response to the previous comments concerning section C16(ii) of the Labour Code, the Government indicates that the Labour Code and collective agreements provide for workers entitlement to sick leave. The Government further indicates that the law is not clear as to what constitutes prolonged illness and that there have been instances where employers have dismissed employees for prolonged illness as per the Labour Code. The Committee notes that section C16(ii) permits an employer to terminate the contract of an employee on sick leave if the extent of such leave taken renders the employee unfit to continue to fulfil the duties arising from the employment contract. The Committee notes that this definition of temporary absence from work is accordingly defined in decisions of the industrial courts. The Committee asks the Government to provide copies of the leading decisions of the industrial court on this matter.

7. Article 7. Opportunity to defend oneself against allegations made. The Committee notes that the Government indicated in its first report on the application of Convention No. 158 that there are no legal provisions which afford workers the opportunity to defend themselves against allegations made prior to termination. In the report received in September 2009, the Government reiterates that it is an established practice that workers are afforded the opportunity to defend themselves. The Committee once again requests the Government to provide information on its practice and supply any court decisions in which the failure to give an employee an opportunity to defend oneself was deemed to be unfair.

8. Article 13. Terminations of employment for economic, technological, structural, or similar reasons. Consultation of workers’ representatives. The Government indicates that there are no legislative measures in place that ensure consultation with workers’ representatives concerning terminations in cases for economic, technological, structural or other reasons. However, the Government further indicates that unions use the process of collective bargaining to address this issue. The Committee asks the Government to provide detailed information concerning the effect given to Article 13 through collective agreements, by supplying the information requested in the report form.

9. Article 14. Terminations of employment for economic, technological, structural, or similar reasons. Notification to the competent authority. The Committee recalls that Article 14(3) provides that the minimum period of time before carrying out terminations has to be specified in national laws or regulations. The Committee requests the Government to indicate the measures taken or envisaged to give effect to Article 14(3) through laws or regulations.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (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.]