UNFAIR DISMISSAL UNDER THE LAWS OF BARBADOS
According to Section 21(1) of the Employment Rights Act, 2012 (“the Act”), employees have a right not to be unfairly dismissed by their employer. However, if an unfair dismissal is alleged then the reason for the dismissal must be ascertained. The Act lists specific reasons that automatically equate to an unfair dismissal.
WHAT CONSTITUTES UNFAIR DISMISSAL?
Under sec 30(2) of the Act, unfair dismissal is deemed to occur where an employee is dismissed in the following circumstances:
- Where a dismissed employee has been absent from work for less than a year, and their absence is supported by a Medical Practitioner;
- The dismissal took place after an employee has been medically certified to be absent from work for a period less than 12 consecutive months OR a period amounting to 12 months in any one period of 24 consecutive months;
- A dismissal occurs on the basis that the employee has taken up a position as an officer, a shop steward, a safety and health representative or a member of trade union;
- In a situation where an employee has been dismissed due to their involvement in trade union activities outside or with the consent of the employer during working hours;
- A dismissal was due to the employee having somehow taken up capacity as a worker’s representative;
- The discharge of the employee happened because the employee complained or was part of a complaint against the employer;
- Where an employee has been fired because the employee is believed to have the human immunodeficiency virus (HIV) or any other life-threatening illness or disease;
- In the event that an employee has been sacked because of their refusal to complete an assigned task in circumstances described in section 104 of the Safety and Health at Work Act 2005;
- Where an employee is or was a disabled person and the circumstances could permit the employer to reasonably accommodate the employee with alternative employment;
- The employee is unfairly dismissed if their dismissal is for the reason that the employee was absent from work due to their performance of a national duty;
- If an employee is dismissed on the ground that the employee refused to complete an unlawful instruction given by the employer;
- Unfair dismissal is found if the dismissal is because of any employee’s pregnancy or a reason connected to her pregnancy;
- An employee has been unfairly dismissed if it is sufficiently evidenced the motive was because of the employees: race, colour, gender, age, marital status, religion, political opinion or affiliation, national extraction, social origin or indigenous origin;
- An employee is deemed to be unfairly dismissed if the culmination of the contract occurs because of the employee’s responsibility for the care and welfare of a child or a dependent family member;
PERMISSIBLE REASONS FOR UNFAIR DISMISSAL
An employer is permitted to dismiss an employee if the dismissal it relates to:
- The employee’s ability to perform the work assigned by the employer;
- The conduct of the employee;
- If the employee has been made redundant in accordance with section 31 of the Employment Rights Act 2012; or
- Where the employee is unable to fulfil their job due to a restriction imposed by the law.
It is to be noted that an employee’s ability to perform their work ought to be assessed with reference to their skill, aptitude, health or any other physical or mental quality. In addition, employers must follow a fair procedure when dismissing an employee, which includes giving the employee notice of the dismissal, providing the employee with an opportunity to respond to the allegations, and allowing the employee to be accompanied by a representative at any disciplinary hearings.
THE TEST OF WHETHER A DISMISSAL IS FAIR OR UNFAIR
Whether the dismissal of an employee is fair or unfair is dependent on:
(1) if the employer acted reasonably or unreasonably by dismissing the employee for the given reason or principal reason, and
(2) if the handling of the employee’s disciplinary procedure complied with the rules given in Part A of the Fourth Schedule of the Act.
Employers ought not to dismiss an employee for a reason related to their ability to work or their conduct without informing the employee of the accusation and giving the individual an opportunity to state his case.
GUIDELINES FOR DISCIPLINARY PROCEDURES
An employer’s disciplinary procedures should be guided by the following rules:
- Disciplinary action should be applied progressively.
- An employee ought not to be dismissed on the first breach unless the conduct constitutes gross misconduct.
- An employee should be warned of the breach and given a chance to make a correction.
- An employee should give a written or oral warning before taking strong disciplinary action against the employee.
- Breaches by the employee ought to be expunged from the employee’s records after the passing of 12 months or more.
REMEDIES FOR UNFAIR DISMISSAL
Employees alleging unfair dismissal ought to bring their complaint to the Chief Labour Officer. The date a complaint is found to be made is the date it is presented to the Chief Labour Officer. The Chief Labour Officer will endeavour to settle the claim, and if the Officer is unable to settle the matter within 42 days then the matter is referred to the Tribunal. Complaints for unfair dismissal must be made within 3 months from the date of the termination.
The Tribunal has the power to order reinstatement, re-engagement, or compensation for the employee, depending on the circumstances of the case. In addition, the Tribunal may award compensation for any financial losses suffered by the employee as a result of the dismissal, such as loss of earnings or benefits.
To bring a claim, the employee must first complete an AC1 form and submit it to the Tribunal. The employer will be given an opportunity to respond to the claim and provide evidence in support of the dismissal. The Tribunal will then hold a hearing to determine whether the dismissal was fair and reasonable in the circumstances.