Thu | Jul 19, 2018

Disregard labour code at your own peril, warns lawyer

Published:Monday | February 19, 2018 | 12:00 AMPaul Clarke/ Gleaner Writer

Do not disregard the labour code because, if you do, you do so at your own peril, warns Kwame Gordon, an attorney-at-law and a partner at the law firm Samuda and Johnson.

Gordon was making a presentation at the Jamaica Chamber of Commerce Breakfast Seminar, held at the Knutsford Court Hotel in New Kingston last Friday, with the aim of providing in-house and external lawyers, human resource directors, finance, operations managers and CEOs with effective tools on how to approach Industrial Disputes Tribunal (IDT)-related challenges when they arise.

Gordon reasoned that employers must take caution in how quickly they choose to dismiss employees, as any breach of the labour code could backfire with a claim taken to the IDT and from which a ruling in the employees' favour could ensue.

"The normal practice is for employers to summarily dismiss an employee without factoring how the dismissal is to actually take place, which ultimately may prove to be the wrong approach under labour laws and the labour code of conduct," said Gordon.

Citing several cases that have been taken to the IDT, Gordon noted the similar outcomes, based on how dismissals were carried out. In 2017, 61 cases were referred to the IDT, compared to 65 in 2016.

Gordon said that while there remains a place for summary dismissals, it involves a massive risk on the part of the employer, as in many cases the incorrect procedure was adopted, leaving the businesses vulnerable to losing the case if taken up at the IDT.

"The proper procedure is important, disciplinary processes are important; and also to outline them in a readable document, readily available for both employers and employees, is a good thing and this will ensure that you avoid certain things."

He mentioned that in a single case, one man was awarded $30 million as the IDT had determined that while there was no questioning the grounds on which he was to be dismissed, the way the employer executed the decision constituted a breach of the labour code.

"Procedure is critical in how you exercise the right to dismiss an employee under any circumstances, even if the evidence against that person is compelling and overwhelming," said Gordon.

paul.clarke@gleanerjm.com