Local applicants can’t be overqualified

| 26/06/2015 | 54 Comments
Cayman News Service

Labour Minister Tara Rivers at the press conference for the draft Labour Relations Bill

(CNS): Proposed new labour legislation has a number of very specific clauses that the employment minister has said will assist and protect local workers. One provision that Tara Rivers believes will be of particular help to unemployed Caymanians is the prohibition on employers rejecting locals on the grounds that they are overqualified.

“This is a direct attempt to address a number of issues that the department was seeing with respect to people not being given a job with the explanation they were overqualified,” Rivers said at a press briefing launching the sixty-day consultation period on Wednesday. “What the bill seeks to do is to specify that Caymanians that have qualifications in excess of what is required, this will not make them ineligible for hire for any position.”

The minister said that this clause should address the concerns and complaints that many locals have had when job-seeking and has caused considerable frustration.

Local people in need of paid work who have professional and academic qualifications, as well as management experience, many years in some cases, have complained to the NWDA. Already having an uphill struggle to find work in an economy where wages have been in decline for years, they have faced the additional hurdle of employers not taking their applications seriously for jobs deemed to be below their status.

Recruitment experts say that managers in general often refuse to hire people who are overqualified because they are afraid of the salary an applicant may demand, that they will be bored in the job very quickly and will leave as soon as something better comes along. But in Cayman there have been concerns that it is also used as a way of rejecting locals who apply for jobs where a work permit holder is already in place or waiting in the wings.

While enforcing the new clause may be difficult, applicants can communicate directly to the work permit and business staffing plan boards that they had applied for a position under consideration for a permit and been rejected on that basis.

Another new clause in the bill that may prove helpful is the new requirement for bosses to inform the labour department of planned redundancies. Bosses with five workers or more will need to report to the director of labour full details of how many workers, who is being cut and why and then the department will monitor any attempts by those employers to hire work permit holders.

“It was important to address this amendment in the law because the department was seeing situations where employees, and mainly Caymanian employees, were being made redundant but then the employer will hire a work permit holder for the same position.”

She said there was nothing in the previous legislation to address such practices.

The introduction of constructive dismissal and the concept of driving people out of work by making the conditions so unpleasant an employee cannot reasonably stay is also expected to help local workers. An additional requirement that is expected to help Caymanians is for employers to provide proper relevant training during probation periods to ensure that workers cannot be terminated for incompetence or because they are not up to the job.

Rivers said that local workers would, in certain circumstances, be able to claim unfair dismissal during a probation period if they were not trained during that time.

The public is being encouraged to submit their comments on the draft bill to lpl@gov.ky before 31 August.

The bill and discussion document are now available on the ministry’s website here.

Stakeholder meetings and Public District Meetings will also take place in the month of July with dates and locations expected to be released shortly. 

Clarification by the Department of Labour and Pensions:

We note that there may be some misunderstanding or misinterpretation with the proposed requirement in the Labour Relations Bill in connection with reasonable training and providing of reasons for termination etc. during the probationary period. We want to make it abundantly clear that the Bill DOES NOT prevent termination, as is the case now, of an employee by an Employer for “Cause” (which can include a multiple of specified performance or misconduct behaviours as outlined in the Law or elsewhere – such as in a proper Employee Policies Handbook). However, the proposal is in regard to the employer(s) arbitrarily terminating employees during the probation period, without even attempting to give them a chance to succeed, and to add insult to injury not even giving them any reasons for the termination. This is the mischief that the Hon. Minister and the Government is seeking to rectify, by strengthening the current Law to transfer such undesirable actions to a Tribunal for a Hearing of Unfair Dismissal.

Here is an Excerpt from Clause 9 of the Bill, which should help to clarity matters. I have highlighted Clause 9 (6), which is the new proposed sub-section, and hopefully this should provide helpful elucidation to your readers and contributors.

(3) During the probationary period, an employee shall be given reasonable training in the duties of the position for which the employee was hired, and shall be kept informed of the progress of the employee.

(4) Upon confirmation of employment after a probationary period all earned benefits under this Law shall be deemed to have accrued from the commencement of the probationary period.

(5) An employee’s employment may be terminated during the probationary period on the basis of gross misconduct or for good cause and the reason for such termination shall be given to the employee in writing.

(6) Where a probationary employee is terminated during the probationary period, except where the termination is for gross misconduct or for good cause, and the employer failed to provide –

(a) reasonable training in the duties of the position for which the employee was hired; or

(b) reasons for the termination,
the employee shall be considered as having been unfairly dismissed and may initiate proceedings in accordance with section 58.

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Category: Jobs, Laws, Local News, Politics

Comments (54)

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  1. Not Anonymous. says:

    One of the other strategies that a lot of employers use is to bring a friend or family member into their business, and demand that a local train that individual for that position he or she is presently occupied in, and when they refused they are fired. I have known females who arrived here as secretaries that had never used a keyboard in their life. Computer experts that did not know how to turn one on.
    My list could go on, but I’m sure you get the point. Our refusal to train these dumb asses gets us categorized as being insubordinate and any other malicious words that they can contrive.
    Employers telling our government that if certain work permits are not granted they will close their business.
    Can someone explain this type of behavior or tell me how this is conducive to a friendly working environment in which we live?

  2. Anonymous says:

    Take a very well known ‘local activist’ She is highly educated, and is probably more than qualified for the positions she has applied for, but no employer in their right mind wants to actually hire her. The very thought of the chaos she would cause in the workplace and on her FB page would not be worth the bother. In this case, its polite to say you over qualified and leave it at that, the truth would probably offend.

  3. Anonymous says:

    Was just being nice and polite, now I guess I’ll have to tell the truth and say your application and attitude sucks then.

  4. Anonymous says:

    Apropos of the belief that higher education solves the inequality issues is this startling Canadian study http://irpp.org/research-studies/aots5-foley-green/?mc_cid=3d81d4534f&mc_eid=33970f6995

  5. Anonymous says:

    Well done Tara..more lower level jobs for over qualified caymanians. This along with Alden indicating he is happy to grant permits for management level positions will certainly secure doth digging jobs for all Caymanians. You better go buy a shovel as this is likely your last term in office no matter how much “training” you did during that break in residency you neglected to disclose.

  6. Anonymous says:

    work permit and business staffing boards are impossible to contact….immigration department does nothing unless they have a personal interest ( friend or family member) in the position.

  7. Anonymous says:

    I am unsure that the problem is over qualification of the applicants. At least not the applicants I have seen for the jobs I have advertised.

  8. Anonymous says:

    And all that money was given to churches, who pay no duties and don’t get audited.

  9. Anonymous says:

    Couldn’t the introduction of unions still provide more employment stability than government protectionism? That is, of course, assuming there is only low-level corruption.

  10. Sunrise says:

    Wow, seems a lot of fighting against Caymanians in our own country. How about just deporting all Caymanians from the Cayman Islands, would that make all expats happy? I have never seen such hatred against our own locals by expats. Why can’t we all come to a sensible solution as in the past, when Caymanians and expats worked hand in hand. Why are we now turning this into a war against Caymanians and expats. Why? Because Cayman is a paradise compared to where most of the expats are coming from. Because even if they make $3 an hour they are happy, they make more in 1 week here than they would make in a month back home. Even though they have to live as cattle in their accommodations, they do it. I would suggest to everyone visiting our beautiful islands to work, please try and work with our locals also. We have a lot of well educated, professional local workers here that is employable!!! Just to give you an example: I have my own business that is successful. I started working on summer breaks from the tender age of 11 years, and have been working hard ever since. I have never once asked government for assistance, as I never had to, and by the good grace of God, never will. I never had the opportunity to get a masters degree, due to financial constraints when I graduated from school, but was born with something that no one can take away. My parents were hard working, and thought us to be respectable and hard working as well. I have three children that I am very proud of, all Caymanians by the way. My oldest is a teacher, with a masters degree, owns her own accommodations and owns other property as well. She is well mannered and very professional in her job. In fact, I am always getting comments from expats and locals alike that she is one of the top teachers in her school. I have another child that work in the financial industry, he is always going beyond to satisfy his employer, he is hard working and also has property and a family that he is very responsible for. My youngest child just graduated from a private school, as did all my other children, as the valedictorian. By the way, she is now looking for employment, so if you want a hard working, intelligent, well mannered Caymanian, she is available. Let us all grow up, let us stop the mud slinging at each other, before there is more serious issues to face, like social unrest. Please expats, stop classifying all Caymanians as “no good” or “unemployable”, please!! Caymanians, let us work together with the expats that can give us more knowledge and have respect for our beautiful Islands and beautiful people, that welcome them here with open arms. I beg you all to stop this immature behavior before it is too late, before you have to run from Cayman as you had to probably run from your own country for same reasons. By the way, if some of you don’t like what is happening, there is an easy solution: we still have flights out of here. Or is it that you would much rather be here than in your own country?

    • Anonymous says:

      Everyone would get on better if a small core of Caymanians did not consider that the easiest route in life is to make a passport a job qualification and the basis to demand promotions.

    • Anonymous says:

      Very well said, and by the way, congratulations on yours and your family’s achievements. Too bad that all Caymanian parents are not so responsible. You seem to be the epitome of what this country needs in leadership skills. Please take the time to let us all know how you prevented your kids from becoming baby mamas and dead beat fathers. How did you manage your family when you were obviously busy, industriously working for a living and providing for your family? Seems that a high percentage of Caymanian kids and parents could benefit from your wisdom. You appear to be e real role model. Thank you for a breath of fresh air SUNRISE which seems to be a well chosen self name.

    • Just Sayin' says:

      One would have to get up very early in the morning to get anything past you, wouldn’t they?

  11. Anonymous says:

    An alternative to trying to legislate the hiring of Caymanians why doesn’t Tara meet with business owners and quietly learn their concerns in hiring Caymanians thereby getting an accurate understanding what the problems actually are and then develop a strategy to remedy the work problems which urge employers away from hiring Caymanians.
    Denial is not a river in Egypt.

  12. Anonymous says:

    Start at where the problem begins. Education. Isn’t Tara the education minister?

    1. School uniforms are in place for a reason. Enforce how they are worn and educate the children and parents as to why they are worn in the manner they should be worn. Being fashionable in a professional workplace will not get you a job. Save for the artsy jobs which are few and far between in Cayman.
    2. Work Ethic – Taught at a very young age in school. Taught that hard work, persistence and dedication allows you to keep your job without becoming one of the redundant ones.
    3. Attitude – An upbeat attitude without the moaning and complaining keeps your job. Keep your personal problems at the door and outside the office.
    4. Importance of time – Be on time for work. Return from lunch on time. Be early for meetings.
    5. Personal Life – Keep it out of the office. Keep it off the phone. Do not use anything in the office for personal use. That is stealing. It doesn’t belong to you and using it for any personal reason is stealing.
    I really could go on. I will let others carry on.

    These are the real problems. Fix these and then there won’t be the generalized perception of locals. These are all the issues which employers complain about. Compound these with the perception that the locals are not good enough even if the degrees are from the same foreign university.

  13. David Miller says:

    Finally a law will come into fruition with some teeth in it. Congratulations Tara and team. For the rest who are complaining , I would like to remind you that your excuses are not justified . If one Caymanian is not working out ,you can always find another. Besides you will only bring up your country. So contribute. God bless you all.

  14. Anonymous says:

    Great. Let’s not address the pressing underlying problems of lack of education, poor work ethic, tardiness, sense of entitlement, lack of ability and quite frankly laziness. Let’s instead pass more ill thought legislation to make ourselves look good so we can get re-elected. Tara you are in so far over your head you should do the honorable thing and resign. But wait this is Cayman. No politician resigns. Ever. I can’t believe I actually voted for you.

  15. Rp says:

    Before gov tells me who and how to hire, they should consider being a role model for the business community! Show me how it should be done please!

    Why does this law apply only to private sector and not to govt?

    You can afford to run at a loss dear CIG, we can’t!

  16. Rp says:

    What if they don’t show up for training or don’t show up to work once they signed the contract? This seems to happen a lot more frequently these days.

    Caymanian business owner

    • Anonymous says:

      So, are you saying that you do not hire over-qualified Caymanians, because you feel they don’t/won’t show up for training? Are you actually then saying you avoid hiring over-qualified Caymanians because you can tell the future? Cayman needs less ‘Caymanians’ like you. stupid

      • Anonymous says:

        He is commenting on the fact of unfair dismissal if the Caymanian (not over qualified, but anyone) is terminated in their probation period.
        Under the new law you could hire a Caymanian, who then does not show up to work, so you can’t even try and train them and still can’t fire them.

        • Anonymous says:

          The Bill says no such thing. Clause 9(6) of the Bill says: “Where a probationary employee is terminated during the probationary
          period, EXCEPT WHERE THE TERMINATION IS FOR GROSS MISCONDUCT OR FOR GOOD CAUSE,
          and the employer failed to provide –
          (a) reasonable training in the duties of the position for which the
          employee was hired; or
          (b) reasons for the termination,
          the employee shall be considered as having been unfairly dismissed and may
          initiate proceedings in accordance with section 58.

          Obviously, if an employee on probation fails to turn up for work they can be terminated for good cause.

  17. Anonymous says:

    “Rivers said that local workers would, in certain circumstances, be able to claim unfair dismissal during a probation period if they were not trained during that time.”

    That will encourage employers to hire Caymanians, just seems nuts!

  18. Anonymous says:

    An inexperienced politician dabbling with things she doesnt understand. She put in legislation that you can’t tell a Caymanian that they are overqualified.? Can’t wait to see the other gems. The Labour law already has an antidiscrimination section. How about educating employers and employees on their rights and responsibilities here and train Labour officers to enforce. This is how you deal with inappropriate practices not through reactionary politricks

    • Anonymous says:

      You really would not want Caymanians to be informed of their legal rights and then have them actually enforced. that would bring about the cancellation of about 30% of the work permits in Cayman immediately – from partners of law firms right down to beach attendants.

  19. Anonymous says:

    Tara should address the issue of perpetually hired “TEMPS” who are never given the chance to become permanent in their positions. This is another way of keeping Caymanians out of good positions.

    • Anonymous says:

      5.13 oh please, some Caymanians do such a great job of keeping themselves unemployable that there are no excuses.

  20. Yogi says:

    Tara is correct. Also, the Pope can no longer be Catholic and bears may not defecate in the woods from this day forth.

  21. Anonymous says:

    12.23, head between legs and kiss your a$$ goodbye!

  22. Anonymous says:

    “An additional requirement that is expected to help Caymanians is for employers to provide proper relevant training during probation periods to ensure that workers cannot be terminated for incompetence or because they are not up to the job.” But what if they are incompetent and/or not up to the job?

  23. Anonymous says:

    Employers will find new methods to further exploit foreign cheap labour and avoid having to hire qualified caymanians.
    A law only works if it is enforced.

    • Anonymous says:

      It is the ones that think they are qualified when they are not that is the bigger problem for employers.

    • Anonymous says:

      Yes but……what if the law is senseless and unenforceable? Tara, go get yourself qualified to talk common sense to us or just stay in the background as is your norm. Don’t forget, you are only in this gov’t by default and a pretty tottery judgement.

  24. Anonymous says:

    How about some protection for expats? I am all in favor of the bill but lets extend rights to all workers on our soil.

    • Anonymous says:

      The existing law does. We are just too corrupt (sorry I meant busy) to have the time to apply the protections equally to everyone.

  25. Anonymous says:

    What about if they were trained but were incapable of performing?

    • Anonymous says:

      Yes, there are many people with dodgy masters degrees from only for profit universities, and these are the people doing the most ranting about expats. How about, get your degree, stay in that country and work in your chosen industry for a time. When you come home you will be welcomed into jobs and opportunities and won’t have to demand that Tara get you a job and export an expat to make room for you.

    • Anonymous says:

      Agree…. there are many that have been trained in the CIG and even 5-7 years later they’re still slow, inefficient and in the job…….this is a waste of resources as people should not be allowed to be inefficient when others need work and ar better workers, suggest other jobs and please don’t promote them

    • Anonymous says:

      Bluff it like those people do.

  26. Just Sayin' says:

    Misplaced protectionism at best. These people will still not be hired. Now we can cite their incompetence though, which was the real reason in the first place. “Overqualified” was just a way of trying to be nice and not hurt little Bo Bo’s feelings.

  27. Plantation Days says:

    The work permit is the key. It provides security for the employer by precluding any mobility by the employee. It is an effective control device. That is why it is well worth the cost and hassle.

    The protectionist system is no longer working to assist Caymanians. Quite the contrary.

    The only future lies in first class eduction and training.

    • Diogenes says:

      The unintended consequences of ill thought out legislation. By trying to enforce statutory and discriminatory protection for Caymanians, they increase the economic incentives for employers to find excuses to employ unprotected expats. What is intended to protect Caymanians in fact gives employers an incentive not to hire them in the first place. But hey, the politicians don’t really care about the outcome – they will happily trumpet their protectionist measures on the stump to the voters whom they hope won’t realise that this makes the position worse rather than better.

      • Anonymous says:

        Name a country that doesn’t try and secure employment for their citizens with, by purpose, “discrimatory” laws. What we need is our laws to be applied in a way that promotes the employment of our qualified citizens while protecting the private sector from being forced to employ the unqualified. If our laws were consistently and fairly applied we would create an environment mutually beneficial in the long term for the private sector and our people.

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