The Guyana Sugar Corporation Inc. (GuySuCo) wishes to explain its position relative to the payment of severance or redundancy allowance for the Cane Harvesters and Cane Transport Operators. There is a current debate as to whether these two categories of employees should be paid severance or redundancy allowance.
It is important to note that, the Cane Harvesters and Cane Transport Operators could only become entitled to the payment of severance or redundancy allowance if their contracts were terminated in accordance with sections 12 and 21 (1) of the Termination of Employment and Severance Pay Act (TESPA).
The question of whether the contract of employment of an employee is to be terminated by reason of redundancy is a determination which must be made specifically by the employer, pursuant to section 12 of TESPA.
On the other hand, the employees, in this case, the Cane Harvesters and Cane Transport Operators cannot unilaterally decide that they are redundant.
In the absence of the termination of the contracts of employment of these two categories of employees, the Corporation is under no legal obligation to pay severance or redundancy allowance. Additionally, these employees’ services are currently being retained at the Wales Estate and were offered work at the Uitvlugt location.
The issue of Uitvlugt Estate being outside of a ten (10) mile radius from Wales does not invoke the operation of section 21 (4) (b), in the absence of there being any termination of the contracts of employment of the Cane Harvesters and Cane Transport Operators. Importantly, the section does not create an entitlement to the payment of severance or redundancy allowance where the employee is merely being offer work at another worksite, outside of a ten (10) mile radius.
The Corporation also intends to transport these employees daily from Wales to Uitvlugt Estate for work and to pay them a disturbance allowance in accordance with the Collective Labour Agreement (CLA), entered into in 2004 by the Guyana Agricultural and General Workers Union (GAWU) and the Corporation. This arrangement is not a peculiar one within the industry. The practice of transporting employees to other Estates for work is addressed under clause 26 of the CLA. Clause 26 of the CLA makes provision for the payment of a disturbance allowance, where field and factory workers are required to work on an Estate, other than their base Estate. In light of the customary practice of the Corporation of transporting workers to the Estates for work, the Corporation’s undertaking to transport the Cane Harvesters and Cane Transport Operators from Wales to Uitvlugt Estate is not a novel situation.
Part of the current debate makes reference to the abandonment in 2009 of the Diamond Estate Cultivation and severance was paid to the same categories of employees. However, it is important to note that it was not until 2010 that the question of severance was raised. Due to an intervention by the Government of the day, there was a final settlement in terms of severance to the employees in 2011, after they had been employed at LBI Estate for 18 months. It is to be noted that this arrangement was quite different from the normal industrial relations engagements.
The transferred employees were paid a disturbance allowance and transported to LBI Estate on a daily basis. This position was supported by the then Chief Labour Officer who acted as conciliator between the Corporation and GAWU.
The situation involving the employees from the Diamond/LBI Estates and those from Wales Estate is different since in the Diamond/LBI case the services of the employees were actually terminated for redundancy, hence they were entitled to receive a severance or redundancy allowance.
GuySuCo wishes to stress that the offer of employment remains open to the Cane Harvesters and Cane Transport Operators from the Wales Estate to go to the Uitvlugt Estate. In the current circumstances, therefore, it is arguable that should the employees voluntarily terminate their services, that consistent with TESPA, they would not be eligible for benefits.