The early English cases concerning fixed-term contracts and unfair dismissal on the same subject will prove useful in interpreting the provisions of the Barbados Employment Rights legislation because the language used is essentially the same.
The early English legislation was found in Schedule 1, paragraphs 5 and 6 of the Trade Union and Labour Regulations Act 1974. Since the wording is essentially the same as that in our Employment Rights Act, I will refer to the relevant sections of the Barbados legislation.
Section 26 (1)(b) of our act provides that for the purposes of this part, “an employee is dismissed where he is employed under a contract for a fixed term and the term expires without being renewed under the same contract”.
Section 29(1) reads:
“In determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show:
(a) the reason, or, if more than one, the principal reason, for the dismissal; and (b) that it is clear either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”
It was the corresponding provisions of the English legislation which concerned the Employment Tribunals in the case of Terry vs East Sussex County Council (1976).
In that case, John Terry was employed by a local authority under a fixed-term contract for a period of 12 months as a lecturer at a college managed by the authority.
When the term expired, the contract was not renewed. Mr Terry applied to the industrial tribunal for compensation for unfair dismissal.
When the case came before the industrial tribunal, it dismissed the application, giving no other reason for the dismissal other than to state that the termination of the appellant’s employment “was by expiry of an agreed period and to the extent to which such expiry constituted dismissal under the act, it was for a good and substantial reason”. Mr Terry appealed.
In allowing the appeal, Phillips J., delivering the judgment of the Employment Appeals Tribunal (EAT), concluded that there was no doubt that the appellant was employed under a fixed-term contract and failure to renew it amounted to a dismissal for the purposes of the corresponding purposes of the English legislation. Accordingly, he was entitled not to be unfairly dismissed.
The industrial tribunal appeared to have treated the expiry of the fixed- term contract as some other substantial reason.
The EAT held, among other things, that the tribunal ought to identify the reason for the dismissal before going on to consider whether the dismissal was fair.
The case was sent to another tribunal for rehearing so that it would determine whether the employee was dismissed unfairly.
In Fay vs North Yorkshire County Council (1985), Mrs Fay was an experienced teacher who was employed at Houghton Comprehension School under a series of fixed-term contracts from September 1, 1981, until August 31, 1983. The last contract from January 1 until August 31, 1983, was not renewed. She was therefore dismissed from that date.
Mrs Fay claimed that her dismissal was because of redundancy and she claimed a redundancy payment and unfair dismissal.
The employers contended that the dismissal was not for redundancy but was because of “some other substantial reason being the statutory dismissal created by the non-renewal of the contract”.
Sir Ralph Kilner Brown, in delivering the decision of the EAT, observed: “We do not think it sufficient simply to state that because the statute says that non-renewal is a dismissal, that is of itself a substantial other reason. Some indication is required as to why the employer so regards it.”
These two cases illustrate that it is not enough for the employer to assume that the expiration of an agreed contractual period would amount to a dismissal for some other substantial reason and therefore satisfy the requirement of fairness under the legislation.
The tribunal must identify the reason for a dismissal and analyse the relevant factors before going on to consider whether that dismissal was fair, having regard to the statutory fair reasons set out in the legislation.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected].
