One of the queries that I still receive about unfair dismissal is whether it can be combined with an action for wrongful dismissal and brought to court.
That issue arose in the case of Allison Thomas vs Fort Knox Bermuda Ltd et al (2009), a decision of the Supreme Court of Bermuda.
The Employment Act 2000 introduced unfair dismissal legislation similar to Britain’s (and our legislation) to Bermuda.
In the above case, the court was dealing with an application to strike out paragraph 8 of the statement of claim filed in the proceedings.
The plaintiff, Mr Thomas, was employed by the first defendant (“the company”) as its chief operations officer. He was dismissed and the terms of that dismissal and the resulting claim for dismissal were set out briefly in the statement of claim.
Paragraph 8 read: “Further and in the alternative the termination of the plaintiff’s employment is in breach of the Employment Act 2000.”
That paragraph was an obvious reference to the provisions for unfair dismissal in the Employment Act 2000.
The judge began by considering the common law position. He referred to the English case of Johnson vs UNISYS (2001) in which the following passage of McLachlin J in the Canadian case of Wallace vs United Grain Growers (1997) was cited with approval:
“The action for wrongful dismissal is based on an implied obligation in the employment contract to give reasonable notice of an intention to terminate the relationship (or pay in lieu thereof) in the absence of just cause for dismissal. A ‘wrongful dismissal’ action is not concerned with the wrongness or rightness of the dismissal itself. Far from making dismissal wrong, the law entitles both employer and employee to terminate the employment relationship without cause. A wrong arises only if the employer breaches the contract by failing to give the dismissed employee reasonable notice of termination. The remedy for this breach of contract is an award of damages based on the period of notice which should have been given.”
The judge went on to explain the legislative change in Britain and, among other things, referred to part of the decision Johnson vs UNISYS 2001 where the court confirmed the exclusive jurisdiction of employment tribunals to hear and adjudicate upon claims for unfair dismissal. It was also observed that claims for wrongful dismissal could still be brought in the civil courts.
The judge then recited the effect of the introduction of unfair dismissals legislation in Britain. He said:
“i. The new legislation left the common law and the contract of employment itself unaffected;
ii. in particular, the new legislation did not import implied terms into the contract of employment;
iii. instead it created a new statutory right not to be unfairly dismissed, enforceable by application to an employment tribunal;
iv. employment tribunals thus have an exclusive jurisdiction to hear and adjudicate upon claims for unfair dismissal;
v. no such claims can be brought before the ordinary civil courts;
vi. however, claims for wrongful dismissal (dismissal in breach of the terms of a contract) can be so brought.”
The judge concluded that the Employment Act 2000 has the same effect in Bermuda. In Barbados the Employment Rights Act has the same effect.
The case was appealed to the Court of Appeal of Bermuda which upheld the decision of the judge to strike out Section 8 of the claim, which was grounded on the law relating to unfair dismissal.
It is submitted, therefore, that in Barbados a claim for unfair dismissal must be brought before the tribunal created by the Employment Rights Act, 2012 where it is subject to all the procedural requirements of that legislation, such as the requirement that the proceedings must be commenced within three months of termination.
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.
