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EVERYDAY LAW: Unfair dismissal claims


Cecil McCarthy

EVERYDAY LAW: Unfair dismissal claims

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Based on the emails that I have received there is a lot of interest in the Employment Rights Act. The Employment Rights Tribunal seems destined to have a heavy workload.
Two of the issues that have been raised are:
1. Can a claim based on the provisions of the Employment Rights Act be initiated in the courts?
2. Can a person bring proceedings in the courts for wrongful dismissal or must a claim relating to dismissal be brought under the act?
The first issue arose in the case of Allison Thomas vs Fort Knox Bermuda Ltd et al (2009), a decision of the Supreme Court of Bermuda.
The Employment Act 2000 introduced unfair dismissals legislation similar to the British legislation (and our legislation) to Bermuda.
In the case referred to above, the court was dealing with an application to strike out paragraph 8 of the statement of claim filed in the proceedings.
The plaintiff, Mr Thomas, was employed by the first defendant (“the company”) as its chief operations officer.
The judge began by considering the common law position, referring to the English case of Johnson v Unisys (2001) in which the following passage of McLachlin J in the Canadian case of Wallace vs United Grain Growers (1997) was cited with approval:
“The action for wrongful dismissal is based on an implied obligation in the employment contract to give reasonable notice of an intention to terminate the relationship (or pay in lieu thereof) in the absence of just cause for dismissal.
“A ‘wrongful dismissal’ action is not concerned with the wrongness or rightness of the dismissal itself. Far from making dismissal wrong, the law entitles both employer and employee to terminate the employment relationship without cause. A wrong arises only if the employer breaches the contract by failing to give the dismissed employee reasonable notice of termination. The remedy for this breach of contract is an award of damages based on the period of notice which should have been given.”
The judge then explained the legislative change in the United Kingdom. He said:
16. “In Johnson vs Unisys Lord Millett set out some of the history to the passing of the Industrial Relations Act 1971, the forerunner of the Employment Rights Act 1996. He referred to the disparity between the consequences of termination of employment by an employer, and that by an employee, which had led to a Royal Commission, which concluded that it was urgently necessary for employees to be given better protection against unfair dismissal and recommended the establishment of statutory machinery to achieve this.
17. That recommendation led to the passing of the Industrial Relations Act 1971, and in terms of relationship between the new rights and the old, Lord Millett had this to say:
“This left the common law and the contract of employment itself unaffected. It did not import implied terms into the contract. Instead it created a new statutory right not to be unfairly dismissed, enforceable in the new established National Industrial Relations Court.
Lord Millett explained why it was therefore necessary that some claims brought under the new act, including a claim in respect of unfair dismissal, had to be brought by way of complaint to an employment tribunal, and not otherwise.
The court then quoted a similar view expressed by Lord Hoffman and continued:
“19. And in GAB Robins (UK) Ltd vs Triggs Rimer LJ confirmed the exclusive jurisdiction of employment tribunals, and the continued existence of the common law right to sue for wrongful dismissal in the following terms:
“Employment tribunals have an exclusive jurisdiction to hear and adjudicate upon claims for unfair dismissal. No such claim can be brought before the ordinary civil courts, although claims for wrongful dismissal (dismissal in breach of the terms of the employment contract) can of course be so brought.”
20. So there is no question but that Mr Diel’s submissions would fail in the context of the United Kingdom regime. The passages I have quoted make it quite clear that in the United Kingdom:
i. The new legislation left the common law and the contract of employment itself unaffected.
ii. In particular, the new legislation did not import implied terms into the contract of employment;
iii. Instead it created a new statutory right not to be unfairly dismissed, enforceable by application to an employment tribunal;
iv. Employment tribunals thus have an exclusive jurisdiction to hear and adjudicate upon claims for unfair dismissal;
v. No such claims can be brought before the ordinary civil courts;
vi. However, claims for wrongful dismissal (dismissal in breach of the terms of an contract) can be so brought.”
The judge then concluded that the Employment Act 2000 has the same effect in Bermuda. It is submitted that in Barbados the Employment Rights Act has the same effect. 
A claim for unfair dismissal must be brought before the tribunal created by the Employment Rights Act 2012.
• Cecil McCarthy is a Queen’s Counsel.

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