Ordinarily, to maintain a successful action for unfair dismissal under the Employment Rights Act 2012, one of the things that must be established is that the employer did not have “a fair reason” for dismissal.
Whether or not there was a fair reason for dismissal will sometimes depend on whether the employer acted reasonably or unreasonably in treating the reason shown as a sufficient reason for dismissing the employee.
However, there are a number of reasons that are prescribed in the act to be unfair and a contravention of the employee’s right not to be unfairly dismissed by his employer.
These provisions that deem certain actions of the employer to be unfair dismissal are found in Section 30 of the Employment Rights Act.
For example Sections 30(1) and (b) deal with the issue of dismissal of an employee who is absent through illness or a work-related accident. These sections provide:
“30(1) A dismissal of an employee contravenes the right conferred on him by section 27 where:
(a) the dismissal took place while the employee was absent from work for a period of not more than one year, although he was certified by a medical practitioner to be incapable of work throughout the entire period of the absence as a result of an occupational disease or a work-related accident;
(b) the dismissal took place while the employee was absent from work for not more than either:
(i) a period of 12 consecutive months; or
(ii) periods amounting to 12 months in any one period of 24 consecutive months, although he was certified by a medical practitioner to be incapable of work throughout the period, or, as the case may be, the periods, of the absence as a result of sickness, not being sickness within paragraph (a)”
Section 30(1)(c) makes a dismissal for any of the reasons outlined therein a contravention of the right not to be unfairly dismissed. The reasons for dismissal that are set out in that subsection include the following:
(i) that the employee was or proposed to become an officer, a shop steward or a safety and health representative or a delegate or member of a trade union.
(ii) that the employee sought office, or was acting, or acted, as a worker’s representative;
(iii) that the employee sought office, or was acting, or acted as a worker’s representative;
(iv) that the employee made a complaint or participated in proceedings, being a complaint or proceedings which involved an allegation of a violation of a law, contract or employment or practice by the employer;
(v) that the employee had, or was believed to have, the human immunodeficiency virus or acquired immune deficiency syndrome common known as HIV/AIDS, or any other life-threatening illness or disease;
(vi) that the employee refused to carry out tasks assigned to him in the circumstances set out in section 104 of the Safety and Health at Work Act, 2005;
(vii) that the employee is or was a disabled person, whether or not the disability resulted from an occupational disease or a work-related accident, in circumstances where the employer could reasonably have been expected to offer the employee alternative employment.”
Section 104 of the Safety and Health at Work Act, 2005 gives the right to an employee to refuse to carry out the tasks assigned to him where there is sufficient evidence to indicate that his health and safety are in imminent danger, pending consultation with his safety committee, trade union, staff associations or the Chief Labour Officer.
Next week I shall consider some other reasons for dismissal that are deemed to be unfair.
• 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.