There are some disturbing trends developing with employment dismissals and terminations in the Cayman Islands, Director of Employment Relations Walling Whittaker told the membership of the Cayman Islands Society of Human Resource Professionals at their luncheon meeting recently.
Increasingly more complaints are being filed by terminated employees, and 80 per cent of the cases that reach the Labour Tribunal have been deemed unfair dismissals, Mr. Whittaker said.
‘However, there has been a decrease in cases going to the Tribunal concerning companies that have human resource managers,’ he said.
Mr. Whittaker spoke at the meeting held at the Wharf Restaurant along with Minister of Employment Alden McLaughlin.
The Department of Employment Relations (DER) also gets complaints about sick leave, severance pay and those kinds of things, but increasingly the complaints deal with unfair dismissal, Mr. Whittaker said.
Contrary to a common belief, the majority of those complaints are not made by Caymanians.
‘Only 30 per cent of the cases are actually Caymanian,’ he said, noting that Jamaicans file 56 per cent of the complaints.
Because unfair dismissal complaints cost employers an average of $9,500 in time, lawyer fees and compensation, Mr. Whittaker said it was important for business owners to talk steps to avoid claims.
Following the proper procedures in dismissing an employee is critical, Mr. Whittaker said.
The consequences of getting it wrong wasted time in preparing to defend the claim, lowered workplace morale, and damaged reputations.
With regard to the last item, Mr. Whittaker said that under the proposed Freedom of Information Bill, complaints in the future will become a matter of public record.
The financial costs are high as well, Mr. Whittaker said.
‘In 2005, $1,076,875 was paid in employment claims,’ he said. ‘Seven cases were forwarded to the Court for prosecution for non-payment of a Tribunal award.’
The majority of cases submitted to the DER are settled through negotiations, Mr. Whittaker said, with the rest going on to the Tribunal.
For the cases that go to the Tribunal, most of the companies represented have something in common.
‘There were 25 cases that went to the Tribunal last year,’ Mr. Whittaker said. ‘Twenty-four of them occurred with companies that didn’t have HR managers.’
Mr. Whittaker said the companies that tend to come before the Tribunal are small-to-medium sized businesses that often have ‘I say – you do’ mentalities.
Because these types of companies tend not to have human resource managers – or if the do, they are unqualified – they usually have a lack of documentary evidence to show cause for a dismissal when the case comes before the Tribunal.
Some companies delegate a person to do the HR functions of a company that has no academic background in HR.
‘They are just thrown in to the position,’ Mr. Whittaker said. ‘But HR is not something that can be done without some academic education.’
Mr. Whittaker said the CISHRP can play a pivotal role in helping to alleviate the knowledge problem by offering training workshops and consultative services.
‘There are a great deal of businesses out there that would benefit from the experience in this room,’ he told the CISHRP members.
Mr. Whittaker offered some tips to avoid a Labour Tribunal claim, although he said the people in the room most likely knew them already.
‘Do keep a written statement of the employee’s terms of employment up to date,’ he said.
‘Be consistent and fair,’ he added.
Should a company be subject to a take-over or acquisition, Mr. Whittaker said employers should help redundant employees in the search for a new job.
Mr. Whittaker said employers must keep records of any disciplinary action that is taken with regard to an employee such as a warning issued.
In addition, employers should never withhold pay from their employees.
‘Don’t dismiss an employee on the spot or in anger,’ he said, adding that they should not be dismissed for a single disciplinary infraction either, unless it was for gross negligence.
During the question and answer period after Mr. Whittaker’s presentation, it was asked if severance pay was due to an expatriate employee who had to leave a company because of the seven-year term limit.
‘If the employee relationship has to come to an end because of a process of the law, then no severance is payable,’ Mr. Whittaker responded.
At the Cayman Islands Society of Human Resource Professionals membership luncheon were, from left, Director of Employment Relations Walling Whittaker; Vaughan Carter of the Ministry of Employment; CISHRP director Phillip Scott, CISHRP president Samantha Bennett; Minister of Employment Alden McLaughlin; CISHRP director Julie Adam; CISHRP vice-president Stacey VanDevelde; CISHRP director Phillip Jackson and; CISHRP director Robert Weishan.