I RECEIVED AN EMAIL from a student of labour law who indicated that he has read that employment tribunals can adjudicate matters of wrongful dismissal and unfair dismissal and he has requested me to discuss this matter.
I wish to begin by explaining briefly the concepts of wrongful dismissal and unfair dismissal.
The concept of wrongful dismissal is rooted in the common law. In the Canadian case: WALLACE v UNITED GRAIN WORKERS LTD (1997) the court explained the concept of wrongful dismissal in this way:
“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’ is not concerned with the wrongness or rightness of the dismissal itself. Far from making dismissal a wrong, the law entitles both the employer and the 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.”
Unfair dismissal is a statutory concept and is concerned with the rightness or wrongness of the dismissal. In the context of Barbados an unfair dismissal occurs where a worker is dismissed contrary to the provisions of the Employment Rights Act, 2012.
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.
A recent case in which an employment tribunal exercised the above jurisdiction is the case of ROBERT BATES WREKIN LANDSCAPERS LTD v LEE KNIGHT (2013).
In that case the claimant Mr Knight was summarily dismissed and brought a claim on the basis that he was wrongfully and unfairly dismissed.
Mr Knight 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 breachmof 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 a claim for unfair dismissal must be brought before the tribunal based on the provisions of the act.
Of course, a claim for wrongful dismissal must 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.”
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House,Fontabelle, St Michael. Send your email to [email protected]
