Fair procedure for dismissal
In last week’s article I pointed out that mere expiry of a fixed term contract is not a fair reason for dismissal.
The Employment Rights Act 2012 (“the act”) requires the employer to have grounds for the dismissal of an employee. An employee who has been employed continuously for not less than a year is entitled to written reasons for dismissal once he makes a request.
Section 23(2) of the act provides as follows:
“An employer shall, on the request of the employee, provide the employee with written particulars of the reasons for his dismissal where
(a) the employer gives the employee notice of termination of the contract of employment;
(b) the employer terminates the contract of employment of the employee without notice; or
(c) the employee is employed under a contract for a fixed term and that term expires without being renewed under the same contract.”
Any employee with one year’s continuous employment whose employment has been terminated (including a dismissal through the non-renewal of a fixed term contract) has the right to bring a claim for unfair dismissal.
The dismissal must not only be for a fair reason but the act requires that there be a fair procedure as well.
The requirements of substantive fairness are set out in Section 29(1) to (4) of the act.
The employer is required to show one of the potentially fair reasons, such as capability, conduct and redundancy.
However, having established a fair reason for dismissal, the employer must also meet the procedural requirements of Section 29(5), which reads:
“Notwithstanding subsection (1), an employer is not entitled to dismiss an employee for any reason related to
(a) the capability of the employee to perform any work; or
(b) the conduct of the employee;
without informing the employee of the accusation against him and giving him an opportunity to state his case, subject to the Standard Disciplinary Procedures and the Modified Disciplinary Procedures set out in Parts B and C, respectively, of the Fourth Schedule.”
It is submitted that the language used in Section 29(5) is stronger and more inflexible than its English equivalent and therefore, English cases on procedural fairness with respect to unfair dismissal must be read with caution. Employment rights depend on the statute and the words of the statute must be the starting point of interpreting the content of those rights.
Provisions of the statute
One of the errors often made with respect to fixed term contracts and unfair dismissal is that too much emphasis is placed on the written contract itself rather than the provisions of the statute.
It is submitted that the effect of Section 29(5) is to render a dismissal based on capability or conduct of an employee unfair unless the steps required by that section have been taken.
It would appear that this section will also cover the non-renewal of a fixed term contract since there is no provision in the Barbados legislation excluding it.
It is noteworthy that in Britain the current codes of practice that govern correct industrial relations procedures relating to discipline specifically do not apply to dismissal brought about by the non-renewal of a fixed term contract.
It would be incorrect to assume that our legal position is the same since there are no such provisions in the Employment Rights Act 2012.
It is therefore submitted, for example, that in cases where a person is being dismissed for poor performance, the dismissal is unlikely to be fair unless the employee has been warned that improved performances are required and the consequences of a failure to improve (once a reasonable opportunity is given to that employee) may include dismissal.
Of course, with most legal matters, the facts and circumstances of the case are very important; and I am therefore unprepared to insist that in all cases of dismissal for conduct or capability the statutory procedure will apply.
However, it is my view that there will be few cases in this category.