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EVERYDAY LAW: Set guidelines on dismissals


marciadottin, [email protected]

EVERYDAY LAW: Set guidelines on dismissals

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There is a long history of unfair dismissals law in Antigua and Barbuda where legislation was introduced in the mid-1970s.
There are significant differences between our regime for unfair dismissals and theirs. For example, there is no time limit for bringing a claim for unfair dismissal in Antigua and Barbuda. In Barbados a claim must be filed within three months of termination.
However, like our legislation, there is an emphasis on procedural fairness. For example, where it is sought to dismiss an employee on the basis on poor performances, certain procedures must be observed.
In Civil Appeal No. 29 of 2004 Jewellers Warehouse v Cecile Norde in the Court of Appeal of Antigua and Barbuda, the court had occasion to discuss the interpretation of certain sections of the Antigua and Barbuda Labour Code.
Paragraphs 17 to 20 of the judgment of Rawlins J.A. set out the relevant sections of the Code and the interpretation of the provisions:
“[17] Section C58(1) sets out various grounds on which the dismissal of an employee could be fair. Section C58(1)(b) and the proviso to C58(1), which is also relevant for the purposes of this case, state:
‘C58(1). A dismissal shall not be unfair if the reason assigned by the employer therefore (a) . . . ; (b) relates to the capability or qualifications of the employee to perform work of the kind he was employed to do, within the limitations of section C59(5); (c) . . . ; (d) . . . ;
or (e) . . . , provided, however, that there is a factual basis for the assigned reason.
“[18] Because of the cross-reference with section C59(5), it is necessary to reproduce the latter, which states:
‘C59(5). Where an employee is no longer performing his duties in a satisfactory manner, the employer may give the employee a written warning which shall describe the unsatisfactory employment in respect of which the warning is given and state the action the employer intends to take in the event of repetition; and thereafter, if the employee does not, during the period of three months following the receipt of the written warning, demonstrate that he is able to perform and has performed his duties in a satisfactory manner, the employer may terminate the employment of the said employee.
“[19] The question that arises is whether it is mandatory for an employer who wishes to terminate the employment of an employee under Section C58(1)(b) of the Code to follow the procedure set out in section 59(5).  Standing on its own, Section 59(5) is directory and not mandatory. At first blush this sub-section appears to confer on an employer a discretion either to give or not to give the written warning to an employee who is not performing efficiently. However, because of the rules of natural justice there is no option but for an employer to give a written warning.
The written warning must describe the nature of the incapability that is alleged. It must also state that the action that the employer intends to take in the event of repetition. The action for which the employee is dismissed must be a repeat of the matter or matters complained of it the warning letter.”
The above passage is a reminder of the fact that procedural fairness is an important part of unfair dismissals regimes especially where the capability of the employee is at issue.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle,
St Michael. Send your email to [email protected]

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