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EVERYDAY LAW: ‘Unfair’ claim for tribunal


Cecil McCarthy

EVERYDAY LAW: ‘Unfair’ claim for tribunal

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Readers continue to display high interest in the employment rights legislation.
One person mentioned that employment tribunals in England can adjudicate claims for wrongful dismissal and inquired whether our tribunals had similar power.
In 1994 a statutory instrument in Britain granted English industrial tribunals jurisdiction to hear a claim for breach of contract provided the following requirements were met:
1. The employment was terminated.
2. The claim arose or was outstanding at the time of termination of employment
3. The claim related to a breach of contract and a sum due under that contract.
The statutory instrument required that the complaint be brought within the period of three months after termination and it also limited the tribunal’s jurisdiction to claims up to £25 000 (BDS$81 564).
A recent case in which an employment tribunal exercised the above jurisdiction is the case of Robert Bates Wrekin Landscapers Ltd. vs Lee Knight (2013).
In that case, the claimant Mr Knight was summarily dismissed and brought an action on the basis that he was wrongfully and unfairly dismissed.
He was a gardener who had a detailed written contract which, among other things, provided that his employment contract could be terminated without notice for certain breaches, including the following: “Where the employee commits a theft of the employer’s or customer’s property or where the employee commits any breach of the employer’s or customer’s security rules.”
The claimant was accused of theft and a breach of the employer’s security rules when a bag of bolts was found in his van. The employment judge had accepted that the claimant had inadvertently taken up the bolts and had intended to return them. It was also found that the value of the bolts was insignificant.
On appeal, the judge in the Employment Appeals Tribunal held that as a general rule, an employee is entitled to receive notice unless an employer can point to a repudiatory breach of contract.
A repudiatory breach usually entails either deliberate contravention of an essential contract term or gross negligence, but Mr Knight’s breach was minor and inadvertent.
I have seen nothing in the Barbados Employment Rights Act 2012 that would permit the tribunal to exercise jurisdiction in respect of a similar matter based on wrongful dismissal or on the common law of contract.
In our jurisdiction it would seem that a claim for unfair dismissal could be brought before the tribunal based on the provisions of the act.
Of course, a claim for wrongful dismissal could be instituted in the law courts. In this regard, the time limit would be six years and not three months.
It should be noted that with respect to infringement of the rights created by the Employment Rights Act 2012, the Employment Rights Tribunal has exclusive jurisdiction.
Section 8(1) of the act provides: “The remedy of a person for infringement of a right conferred on him by this act, where provision is made for a complaint to the tribunal, is by way of a complaint to the tribunal and not otherwise.”
While on the matter of the jurisdiction of the tribunal, Sections 10 and 11 of the act are also important.
Section 10 permits a person to be represented before the tribunal by legal counsel, a trade union representative or employer’s association or any other person chosen by him.
Section 11 stipulates that except in cases where sexual harassment is alleged, hearings of the tribunal shall be open to the public.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael.

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