COVID-19 has radically changed the way many of us live and work. With remote work, reduced hours, lay-offs and company closures becoming a part of our ‘new normal’ it has been a time of unfortunate uncertainty for both employers and employees. This is why it is important to understand some of the potential employment-related issues that could arise during this time.
Lay-offs and Short time
Under the Employment (Amendment) Act, 2017, an employer may lay-off an employee or place an individual on short time if:
their employment contract provides for it;
the employer temporarily ceases or intends to temporarily cease to carry on business for which the employee was employed;
the employer temporarily ceases or intends to temporarily cease to carry on business for which the employee was employed in the place where the employee was so employed;
the work the employee was hired to do is temporarily not required or are expected to temporarily diminish;
the work the employee was hired to do is not required or expected to temporarily diminish in the place where the employee was so employed.
What’s the process?
Before an employer can lay-off an employee or place an employee on short time, the employer must have a consultation with the employee as well as supply a written statement/notice of the facts that require the employer to lay-off or place the employee on short time.
This written statement must be provided to the employee, the trade union recognized for purposes of bargaining on behalf of the employee (if there is one) and the Minister of Labour. The statement/ notice must include: (a) the number and categories of affected employees and (b) the period during which the lay-off or short-time action is to be carried out.
Where an employer has more than twenty (20) employees that may be affected, the consultation with the Minister is to commence no later than two weeks prior to the contemplated lay-offs or placement on short time. However, where there are less than twenty (20) employees to be affected the consultations shall commence not later than one week before.
It is important to note that even when an employee has been temporarily laid-off or placed on a short time by an employer, the employee is still considered to have continuous employment during that period. Whereas an employee who has been laid-off for a continuous period of at least twelve (12) weeks, the lay-off may be deemed a dismissal because of redundancy and as a result, the employee may become entitled to redundancy pay.
Redundancy
Where an employee is made redundant, the employer may be required to pay them a redundancy payment. Redundancy payments vary and are dependent on the employee’s contract, their position and the length of time they have been with the company.
The Employment (Amendment) Act, 2017 outlines the requirements for an employer who wishes to dismiss an employee due to redundancy. These requirements are similar to those imposed for lay-offs and short time, as stated above. The Act goes further to state that an employer who fails to give the proper notice to the Minister would be liable to pay each affected employee thirty days basic pay in addition to any payment that the employee may be entitled to under the Act.
As businesses begin to contemplate re-opening, section 27 of the Employment (Amendment) Act, 2017 becomes quite significant. It provides that where an employee is made redundant if within twelve (12) months there is an additional demand for goods and services and the employer has to recruit employees for the purpose of the business, the employer has an obligation to give priority to the employees that were made redundant.
Other considerations:
Paid vacation leave. This is an option that could be utilized once both the employer and the employee agree for the employee to take any accrued vacation leave.
Unpaid leave. As an alternative to paid vacation leave, the employer and employee can agree for an employee to take a period of unpaid leave. It should be noted that any such arrangement ought to be documented and approved by the employee beforehand.
Unemployment benefits.
Who is entitled? – Under the National Insurance (Benefits and Assistance) Regulations (as amended) persons employed in The Bahamas under the age of 65 years who are unemployed, laid-off and has had a suspension of earnings from their employment will be entitled to unemployment benefits.
What are the requirements? – An employee who wishes to file must (a) submit the claim for unemployment form, be capable of work, available to work, have paid a minimum of 52 contributions and have been credited with at least 13 contributions in the 26 and 7 contributions in the 13 contribution weeks immediately preceding the first day of the employee’s unemployment.
Who needs to file? – Both the employee and the employer need to file forms to the National Insurance Board (NIB). The employee needs to submit a claim for unemployment to the NIB and the employer needs to submit a Termination of Service/Lay-Off certificate to the NIB.
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from an attorney.
