T.E.S.P.A. is the lawyers’ acronym for the Termination of Employment and Severance Pay Act. It was passed in 1997 and is one of the most important pieces of legislation in the history of Guyana. Its objective is “to provide for the conditions governing termination of employment and grant of redundancy or severance pay to employees and for matters connected therewith.”
Issues affecting workers confront lawyers, employers and trade unions on a regular basis, not to mention workers themselves. Individual workers who do not belong to trade unions are sometimes at the mercy of some employers who are unscrupulous. They would dismiss workers at will and refuse to pay severance pay. Because these workers have no collective strength they are unable to enforce their rights. They either cannot afford to retain the services of lawyers or the sum is not large enough for a lawyer to pursue. The Ministry of Labour is not always accessible or is not always able to overcome the objections of some employers.
Apart from better wages and working conditions, severance pay is always a disputatious matter for an organized body of workers. Currently, workers who were formerly employed by the Guyana Sugar Corporation at Diamond Estate, who have now been transferred to L.B.I Estate as a result of the closure of Diamond Estate, are demanding severance pay instead of continuing to work at L.B.I. They want to be paid off and go their way.
T.E.S.P.A. has regulated the relations between employers and employees in a manner that has never been done before. It provides the reasons for which employment may be terminated. These are: by mutual consent; for redundancy; for good and sufficient cause; and by notice. An employer cannot dismiss an employee on account of the employee’s race, sex, religion, colour, ethnic origin, national extraction, social origin, political opinion, family responsibility or marital status; age; pregnancy; industrial action. T.E.S.P.A. also defines ‘unfair dismissal’ as well as ‘serious misconduct.’ The latter is defined as conduct which is related to the employment contract and has a ‘detrimental effect on the employer’s business.’ Where dismissal takes place on the ground of serious misconduct severance is not payable.
T.E.S.P.A. provides that an employer may terminate the employment of an employee on the ground of redundancy where the termination is part of the reduction of the work force as a result of modernization, automation, mechanization, discontinuance of part of the business, or sale of part of it, or reorganization of part of it. The grounds also include the impossibility to carry on business at the same level, a mechanical breakdown, an act of God, reduced operations due to economic conditions.
On termination of employment an employee who has completed one or more years of continuous employment with an employer is entitled to severance. The employee is entitled to one week’s wages for each completed year for the first five years, two weeks for each year between the fifth and tenth year and three weeks per year in excess of ten years up to fifty-two weeks.
Severance is not payable, however, for several reasons including where the employee unreasonably refuses to accept an offer of re-employment by the employer at the same place of work or within a radius of ten miles therefrom under no less favourable conditions than those such employee enjoyed immediately prior to the termination.
As far as I understand it, the offer by Guysuco to the workers formerly employed at Diamond of jobs at L.B.I satisfies the above conditions. Guysuco argues that it has satisfied the requirements of T.E.S.P.A. and it is cash strapped as well and cannot afford to pay the amount it would be required to as severance.
Among the persons who have been imposing themselves on the Diamond workers and offering support for their demand for severance pay are lawyers. They seem oblivious of the provisions of T.E.S.P.A. based on which the workers do not have a legal claim. Their agitation raises false hopes and creates industrial dissention. It engenders disaffection between workers and employer and workers and union. Thiers is another form of exploitation, this time for political gain.
Guysuco has stated clearly, and proved, that it needs the Diamond workers at L.B.I. which has been working under capacity for some time. It would be foolhardy, and in any case it’s not true, that Guysuco wants to keep the workers merely because it does not want to pay severance. It is no secret that Guysuco is in the process of recovery from a disastrous drop in production and is suffering from a depressed cash flow situation. It makes no sense therefore for Gysuco to be keeping workers on its payroll merely because it does not want to pay them severance.
I am in sympathy with the Diamond workers and their trade union, the GAWU, which has stood by them and defended their cause as the Union does militantly in every case. But the workers cannot be effectively represented if they are misled by lawyers with political designs into believing that the law is on their side. The truth must be told at all times. Armed with the truth, as they should always be, workers are then able to understand the circumstances of their case and work out their own solutions. (www.conversationtree.gy)