Sat | Dec 4, 2021

Dismissing an employee

Published:Monday | June 9, 2014 | 12:00 AM
Sherry Ann McGregor

Before 2010, the Labour Relations and Industrial Disputes Act (LRIDA) made provision for only unionised employees through their trade unions to submit disputes to the Industrial Disputes Tribunal (IDT). For that reason, when a non-unionised worker was aggrieved about the manner or circumstances of their termination, his only recourse was to bring a claim before the courts to seek damages for wrongful dismissal. His remedies were limited, in that he could only expect to recover as compensation the amount to which he would have been entitled if his employment was terminated according to the terms of his employment contract. In other words, he was entitled to recover his notice pay and pay for any accrued vacation. The court's general position was that it would not force parties to remain together under an employment contract by ordering the employee's reinstatement and the manner and circumstances of the employee's dismissal was of little consequence.

On the other hand, the unionised employee, had the right to commence proceedings in the court or to have his trade union take his grievance to the IDT. Invariably, the IDT would be the first port of call, where the employee enjoyed the prospect of being reinstated in his job, as in the case of the employees of the Jamaica Flour Mills - Privy Council Appeal No. 69 of 2003. In that case, the Law Lords stated that, "the unamended section 12(5)(c)(i) [of the LRIDA] should, in their Lordships' opinion, be given its ordinary meaning, i.e. as imposing a mandatory duty to order reinstatement if the conditions of the statutory provision are met.

Reinstatement does not necessarily require that the employee be placed at the same desk or machine or be given the same work in all respects as he or she had been given prior to the unjustifiable dismissal. If, moreover, in a particular case, there really is no suitable job into which the employee can be reinstated, the employer can immediately embark upon the process of dismissing the employee on the ground of redundancy, this time properly fulfilling his obligations of communication and consultation under the Code."

The jurisdiction of the IDT is protected, because its rulings are final and subject to review by the courts in very limited circumstances. In fact, in the case of IDT v UTECH [2012] JMCA Civ 46, the Supreme Court reversed the IDT's decision to reinstate a worker and the Court of Appeal restored the IDT's decision. The judge, in the Court of Appeal's unanimous decision, emphasised that "the IDT's findings, in respect of questions of fact, are unimpeachable."

equal footing

Since March 2010, the ordinary, non-unionised employee is now on equal footing to his unionised counterpart in relation to employment termination. This has practical implications, two of which are set out below:

The employer who could dismiss an employee 'on the spot' may no longer have that right, except in perhaps very limited circumstances, if they exist at all. Therefore, if an employee was caught stealing or engaging in a fight at the workplace before March 2010, he could expect to be immediately dismissed, without notice or payment in lieu of notice. Today, that employee has the right to a fair hearing before he may be dismissed, and he may still be entitled to notice of termination or notice pay.

Under the common law, an employer had no obligation to state reasons for terminating an employment contract. Today, given the requirement for fairness in relation to the termination of all employees, it is arguable that employers must state reasons for dismissal, since the fairness of that dismissal is, upon referral of the matter to the IDT, open to scrutiny.

One is left to wonder what control employers now have in preserving discipline within the workplace and how costly it will be to guarantee a fair hearing for each employee whose dismissal is being contemplated, no matter how serious the breach of discipline may be. Will this change also discourage potential investors from deploying capital to establish businesses in Jamaica?

Next week, I will explore the legal procedure involved in the IDT's hearing of an unfair dismissal claim.

Sherry Ann McGregor is a partner and mediator in the firm of Nunes,
Scholefield, DeLeon & Co. Please send your comments and questions to
lawsofeve@yahoo.com or lifestyle@gleanerjm.com on twitter @lawsofeve.