In the Barbadian Court of Appeal case of JUNE CLARKE v ALICO (2002) which concerned principally, the issue of the appropriate period of notice to be given to an employee made redundant under the provisions of the Severance Payments Act Cap. 355A, Sir David Simmons C.J. discussed the conceptual differences between a cause of action for wrongful dismissal and one for redundancy.
In that judgment, he also made a comparison between an action for wrongful dismissal and one for unfair dismissal.
Before I continue to examine the statutory provisions in the Employment Rights Act 2012 with respect to unfair dismissal, I believe that it is useful to look at the concepts of redundancy, wrongful dismissal and unfair dismissal. This is important because they will remain very relevant and will have to be applied in appropriate circumstances.
Sir David’s judgment so adequately captures the essence of the above concepts that I propose to quote in full paragraphs 29 to 31:
“[29] The cause of action for wrongful dismissal is on a different footing altogether from redundancy. There are conceptual differences. Wrongful dismissal is a product of the common law. The wrongful termination of the individual contract of employment is a breach of that contract sounding in damages. Redundancy, on the other hand, is a creature of statute and termination of the contract of employment by reason of redundancy entitles the employee to compensation calculated in accordance with a statutory formula.
“Such compensation is jurisprudentially and qualitatively different from damages. A claim for wrongful dismissal depends principally upon the terms of the individual contract of employment. Thus, where there is an express term in the contract providing for termination, the law will hold the parties to the term.
More usually, however, in the absence of an express term, the cause of action accrues where the employer dismisses the employee with no or no reasonable notice or without just cause. The common law action for wrongful dismissal is basically concerned with the form of dismissal except, of course, where just cause is in issue.
[30] In Wallace v. United Grain Growers Ltd (1997) 152 DLR (4th), McLachlin J in the Supreme Court of Canada defined the essence of the wrongful dismissal action thus at p. 39:
“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 a 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 employee reasonable notice of termination. The remedy for this breach is an award of damages based on the period of notice which should have been given.”
Equated with statute
[31] Confusion has arisen in the case law in Barbados because the common law action for wrongful dismissal was equated with yet another creature of statute in England, namely, Unfair Dismissal. See, for example, Juliet Taylor v. Barbados Plastics (1981) 16 Barb. L.R. 79.
The statutory right not to be unfairly dismissed was enacted in 1971 in England and is, essentially, an action which requires an examination of the substantive merits of the dismissal.
“The unfair dismissal legislation in England was a legislative response to the deficiencies of the common law as it then stood in 1971 and exposed by the judgment of Lord Reid in Malloch v. Aberdeen Corp [1971] 2 All. E. R. 1278 at 1282.
“At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant’s only remedy is damages for breach of contract.”
Moreover, and most importantly, whereas there is no discretion to re-engage or re-instate the employee in the common law action for wrongful dismissal, such remedies are very much at the heart of the statutory action for unfair dismissal. The question of notice which is often crucial to a wrongful dismissal case is only of evidential value in cases of unfair dismissal.”
Of course, the comments with respect to the English unfair dismissals legislation are equally applicable to our Employment Rights Act, 2012.
• 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