In last week’s article I discussed the fact that under the Barbados Employment Rights legislation, the expiry of a fixed-term contract is a dismissal and that the mere expiry of the contract is not a fair reason for dismissal.
The Employment Rights Act 2012 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:
“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, in certain cases, that there be a fair procedure as well.
The requirements of substantive fairness are set out in Sections 29(1) to (4).
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.
Therefore, where the reason for the dismissal has to do with conduct or capability, the employer has to be careful to ensure that the procedural requirements mentioned above are observed. 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 to address his poor performance) may include dismissal.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to cnmcc@ caribsurf.com.
