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At-will employment


Sheena Mayers, labour management adviser

At-will employment

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In an increasingly global society there will always be cultural transference, which enables professionals to borrow from the best a country has to offer.
This extends to human resources and industrial relations, as many professionals are members of the Society of Human Resource Management in the United States and/or Chartered Institute of Personnel Development. These organisations provide useful resources, however practitioners must be careful how they utilise the resources.
Employment law in Barbados is a close relative to Britain and not to the US, which is geographically closer. This is mostly due to our colonial past and the influence of the British on the development of Barbados.
In recent times, I have seen an increasing number of companies stating that they offer at-will employment. More specifically, the clause is usually contained within their employee handbook. In such instances, I advise people that Barbados is not an at-will jurisdiction.
One of the most striking differences between employment law in the US and Barbados is that in Barbados there is no concept of employment at-will. The legal relationship between employer and employee is always contractual, whether or not there is a written contract. In fact the US is one of a handful of countries where employment is predominantly at-will. Most countries throughout the world allow employers to dismiss employees only for cause; and Barbados falls into this category.
At-will means that an employer can terminate an employee at any time for any reason, except an illegal one, or for no reason without incurring legal liability. Likewise, an employee is free to leave a job at any time for any or no reason with no adverse legal consequences.
At-will also means that an employer can change the terms of the employment relationship with no notice and no consequences. For example, an employer can alter wages, terminate benefits or reduce paid time off.
However, even with this type of system there are exceptions and over the years, US courts have carved out exceptions to the at-will presumption to mitigate its sometimes harsh consequences.
The three major common law exceptions are public policy, implied contract, and implied covenant of good faith.
The concept of at-will employment runs contrary to the Barbadian legislation and common law. The courts of law and legislation protect employees from wrongful and unfair dismissal. It is well established at common law that the employer must not breach the contract when dismissing an employee otherwise the employer is liable to pay damages, usually equivalent to severance.
This is further cemented with the Employment Rights Act (ERA) where Section 29 clearly states that the employer must have a fair reason and must act fairly in the dismissal process. Fair reasons for termination are capability to perform the work, conduct of employee, redundancy, restriction imposed by law or some other substantial reason.
Should an employer breach the act, by either having an illegitimate reason for termination or acting unjustly in the process of terminating the employee, then the act offers possible remedies of reinstatement, reengagement or compensation.
What is essential to note is that employers within Barbados, whether locally owned or offshore entities, must adhere to the established contract of employment and governing legislation to ensure that any terminations are legally defendable. This is why it is essential that contracts of employment are well written and include clauses which cover termination and notice pay. Where these are not explicitly stated, the ERA should be used as a guide.

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