Election day and the employee’s right to time off

Our Prime Minister, The Most Honourable Andrew Holness has announced that the Jamaican electorate will exercise its right to vote in general elections on September 3, 2020.

The Electoral Commission of Jamaica (“ECJ”) has announced that approximately 1.9 million Jamaicans are registered to vote. For most voters, Thursday September 3, is a workday. Many employers are not clear as to their obligations and duties to their employees on election day.

We have answered some frequently asked questions below, about the employers’ obligations on polling day.

FAQs

Can I prohibit my employees from voting?

In short, no. An employer must accept the right of all registered Jamaican citizens, including his employees, to vote in elections. Such a right stems from the Constitution of Jamaica, in particular, section 13(3)(m) of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 (“Charter of Rights”). If an employer prevents an employee from casting his vote, this action is likely to amount to an infringement of the employee’s Constitutional right. One should be careful to not infringe upon a Constitutional right. Employers are reminded that by virtue of the Charter of Rights, a private citizen, such as an employee, may commence legal proceedings against another private citizen, including an employer, for breaches of his constitutional rights. Accordingly, claims for breaches of the constitutional rights are no longer limited to challenging actions committed by the State.

Understandably, employers may be apprehensive of the election day being held on a workday, anticipating that certain employees may take the day as a “free for all”. It is advisable that employers should be careful in the steps they take to facilitate their employees’ exercise of this right, while also protecting their interests.

How much time is an employee allowed to exercise their right to vote?

The Representation of the People Act (“RPA”) empowers the relevant minister to make regulations in relation to the Act including “prescribing the period during which every employer shall permit his employees to be absent from work for the purposes of recording their votes.”

The Representation of the People Regulations 1944 (“Regulations”) issued pursuant to the RPA mandates that employers allow their employees three hours to vote, in addition to their usual lunch hour (see section 4 thereof). It is noted that this provision does not apply to employees whose work on election day commences on or after 10:00 a.m. or concludes before or at 2:00 p.m.

In this year, where the election is being held during the Covid-19 Pandemic, wait times to perform certain electoral tasks is likely to increase due to the requirement of social distancing and increased sanitization measures. Accordingly, employers should be understanding that the process of voting may take a longer time than usual and should duly account for this. It is suggested that some discretion must be exercised and permitted by the employer.

Employees must be reminded that election day is not a public holiday and they are not entitled to take the entire day off work to cast their vote. Accordingly, employees are to attend to the duties of their employment before or after they have cast their vote.

How do I ensure that I’m not left with an empty office?

There are ways to ensure that time is still used responsibly, and that your businesses do not suffer. One such way is by scheduling a timetable, ensuring that there is always a working staff member present. It would be a useful exercise to organize such a schedule based on the home address of each worker. For example, in recent times when the parish of St. Catherine was placed on lockdown, it was made clear that a large portion of the Kingston workforce resided in the parish of St. Catherine. Employees who commute between these two parishes may be allowed three hours in the morning, as it would not be the best use of time for them to travel to and from polling stations during the workday.

Similarly, members of constituencies with many registered voters may be allowed time to vote during the time of day when your business experiences the lowest amount of traffic.

Importantly, ensure that your employees are eligible to vote. The Charter of Rights specifically affords the right to vote only to those who are registered to do so. Therefore, employers are not required to give the three-hour period away from work, to employees who are not listed on the Voter’s list. The ECJ has provided a means to search its database online to determine who is registered to vote. This can be used by employers to ensure that employees are not erroneously scheduled to be absent from work.

Are employees to be paid for time taken off work to vote on election day?

While the RPA or the Regulations do not expressly provide for this issue, it is reasonable to assume that employees are entitled to be paid for the prescribed time off work. Such would be in keeping with protecting the constitutional right to vote. No salary should therefore be deducted for absence during the prescribed time.

However, for periods of absence beyond the prescribed time, hourly workers may be entitled to receive less pay reflective of the reduced hours worked due to their unaccounted period of absence. Salaried workers, on the other hand, may only face a deduction in salary if it is an agreed sanction that may be imposed for unjustifiably missing work. If it is not an agreed sanction, then salaried workers may face some other disciplinary sanction according to the company’s code of conduct, as a result of their unaccounted absence from work.

Should I allow political discourse amongst staff members?

Each Jamaica citizen is afforded the constitutional right to the freedom of thought and observance of political doctrine by virtue of section 13(3) (b) of the Charter of Rights. Additionally, each Jamaican has a right to freedom from discrimination on the ground of political opinions (section 13(3) (i) of the Charter of Rights). Therefore, it is suggested that breakroom political banter should be allowed, so long as the language used is not abusive or discriminatory.

For the public sector, the 2004 Staff Orders expressly restrict specific political activity for employees engaged by central government. The terms of Section 4.2.6 of the Staff Order prohibits officers from engaging in any type of partisan political activity in any elections at any level. Some have argued that this Order operates to limit central government workers from campaigning or expressing political opinions in public.  Employees should bear this in mind, if it applies to them.

Can an employee on the voter’s list take time away from work, and not exercise his/her right to vote?

Yes, an employee who is registered to vote is entitled by law, to receive three hours away from work on polling day. That employee, however, may waive their right to vote even after being scheduled time off. The employer is not afforded any remedy under law in such an event.

Can an employee act as an election day worker?

Yes. While neither the RPA nor the Regulations appear to make specific provision for employees to be engaged as election day workers, upon perusal of the legislation, such workers are important for the smooth operation of the general election. The arrangements to facilitate an employee who wishes to act as an election day worker are left to the contractual arrangements between employer and employee, which may include vacation leave or casual days which an employee may elect to utilize to facilitate him being away from his duties to work in an election.

Disclaimer: This article is not meant to provide legal advice. To obtain legal advice specific to your circumstances, please retain the services of an Attorney-at-Law.

Danielle Reid is an Attorney-at-Law and Associate at the law firm of DunnCox, 48 Duke Street, Kingston. She may be contacted at danielle.reid@dunncox.com

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