The Jefferson Cumberbatch Column – Follow the Process
Prior to the introduction of the Employment Rights Act, employment in the private sector in Barbados was regarded as a mere commodity like any other, capable of being granted and re-purchased by the employer at the latter’s whim by a sufficient payment in lieu of the damages to which the employee would be entitled where the dismissal was not in accordance with the contract.
No reason had to be given for such a termination at the initiative of the employer, and even if one reason were given at the time of a summary dismissal, the law nevertheless permitted the employer to rely on a later discovered reason at the trial where the employee sued for wrongful dismissal, that is, a dismissal in breach of the employment contract.
It was generally accepted that this regime paid little or no regard to the dignity or autonomy of the employee.
The Employment Rights Act 2012 however introduced the concept of unfair dismissal into Barbadian employment law at a comparatively late stage in the region. The “unfair” dismissal, as opposed to one that was merely “wrongful”, does not depend upon there being simply a breach of the employment contract such as the employer giving insufficient notice of the dismissal, an inadequate payment in lieu of such notice or utilizing an unjustifiable summary dismissal.
Rather, it may be happily described as a dismissal in breach of the statutory right of the employee not to be unfairly dismissed as contained in section 27 of the Act.
Concordance with the Act is predicated on two levels: that the dismissal be for a fair reason [section 29] and not for an unfair reason [sections 30 and 31]; and that the determination of the existence of this reason be based on a fair procedure, including a fair investigation and a hearing consistent with the principles of natural justice.
This latter especially was emphasized last week by the Honourable Chairman of the Employment Rights Tribunal, Christopher Blackman QC, when he admonished employers to follow the stipulated procedures when seeking to dismiss workers. According to the Chairman, who bemoaned the high incidence of matters before the tribunal where employers were not following the required statutory procedures, “Employers need to look at their processes and not rely on practices that have no bearing to commonsense…”
With this statute, the dignity of the employee as an individual was clearly respected. He or she was no longer essentially dismissible at the pleasure of the employer and by virtue of the employer now having to justify the dismissal by establishing a stipulated reason and showing that the factual basis for this had been established after a fair investigation and hearing, the concept thereby reduced the notion of a broad managerial prerogative and enhanced the security of tenure of the employee.
Moreover, the dismissal is also to be further assessed for fairness on whether the employer acted “reasonably or unreasonably” in treating the reason as a sufficient justification for dismissing the employee, although this determination is not to be assessed on what the tribunal itself would have done, but instead on how a reasonable employer, identically situated as the defendant was, would have acted.
Nor is the procedure with which the employer has to comply a particularly onerous one. For dismissals generally, and specifically for those based on the capability of the employee or on his or her conduct, disciplinary action should be progressive, and where a dismissal is contemplated, the employer must “set out in writing the alleged conduct or characteristics of the employee, or other circumstances, which lead him to contemplate taking disciplinary action against the employee; and send the statement or a copy of it to the employee and invite the employee, along with his representative, if any, to attend a meeting to discuss the matter”.
The Fourth Schedule to the Act also makes provision for the conduct of the meeting referred to above, including the timelines for its occurrence, the necessary preconditions for including the obligation of the employee to take all reasonable steps to attend the meeting, and the post-meeting obligations of the employer [paragraph 2 (1) to (4)].
Paragraph 3 of the Schedule provides for the circumstance where an employee wishes to appeal the determination of the hearing-
Where the employee wishes to appeal, he must so inform the employer in writing, and follow the established disciplinary procedure of the workplace.
Part C of the Fourth Schedule further provides for a modified disciplinary procedure that requires to be sent to the employee by the employer a written statement of the alleged misconduct of the employee which led to the dismissal; the basis for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct; and the right of the employee to appeal against the dismissal.
This provision that appears to permit an employer to decide on a dismissal without a hearing seems to be an anomaly in a system that emphasizes natural justice and should probably be available in limited circumstances only. The employee’s right of appeal against a decision that has already entered the mind of the employer seems little more than a brutum fulmen in this context. The right to a hearing where dismissal is contemplated ought to be waiveable by the employee only.
Indeed, in the very case where the Chairman is reported to have made his quoted comments, the dismissal was held unfair because, inter alia, there was an internal hearing to which the dismissed employee was not invited to defend herself.