D I S M I S S A L S ,

O V E RV I E W O F P U T E S
E R I N D U S T R I A L D I S
O T H
& I D T AWA R D S

Law 3010 – Industrial Relations Law / Worksheet 8

Lecturer: KHADREA S. FOLKES, ATTORNEY-AT-LAW
Email: [email protected]
 OVERVIEW

 INTRODUCTION
 NOTICE OF DISMISSAL
 WRONGFUL DISMISSAL
 CONSTRUCTIVE DISMISSAL
 SUMMARY DISMISSAL
 UNJUSTIFIABLE DISMISSAL
 REINSTATEMENT
 AWARDS OF THE IDT
 THE LABOUR RELATIONS CODE (LRD)
 THE CHARGING LETTER
 INTRODUCTION

A myriad of issues in the workplace, be it grievance or disciplinary in

nature, can result in an ‘industrial dispute’. However, the majority of
disputes referred to the IDT pertain to Dismissals.
This lecture will examine some key considerations that are relevant to a
dismissal exercise not being adjudged as wrongful or unjustifiable.
You will also receive practical guidance for treating with disputes through
an overview of the Labour Relations Code as well as how to institute
disciplinary proceedings vide preparing a charging letter.
 INTRODUCTION

Dismissal refers to the termination of the contract of employment by an employer,

against the will of the employee. To be dismissed, as opposed to quitting voluntarily is
often perceived as being the employee's fault. Finding new employment may often be
difficult after being fired, particularly if the reason for firing is for some serious
infraction. Job seekers will often not mention jobs that they were fired from on their
resumes; accordingly, unexplained gaps in employment are often regarded as a red flag
Some reasons for Dismissal include the following-
 INTRODUCTION

• Conduct/misconduct
• Minor issues of conduct/misconduct such as poor timekeeping can usually be handled
by speaking informally to the employee.
• When such behaviours escalate or persist, disciplinary warnings can be given on
grounds of misconduct. There is no requirement to start at a 1st level warning if the
circumstances warrant a higher level warning being issued. Also, continuing
misconduct will eventually result in a dismissal on ‘grounds of misconduct’.
• Very serious conduct issues, such as theft, or discriminatory behaviour are usually
regarded as gross misconduct. A gross misconduct finding will result in the
employee’s summary dismissal i.e. dismissal without notice
 INTRODUCTION

• Capability/performance

• Capability – meaning ill health or poor performance, can include ill health, for
example if an employee has a persistent or chronic illness that makes it very difficult
to do their job. Before dismissal the employer will need to consider how the employee
can be supported (eg if they have a disability and reasonable arrangements), or by
allowing time for the employee to recover and to monitor the situation.
• In such a case it would be useful to have a full understanding of the employee’s
condition, treatment and likely prognosis, usually via a report from a Doctor or other
Medical or Occupational Health professional. Thereafter they may consider other
options, e.g. other roles, part-time, flexible working etc.
 INTRODUCTION

• Capability/performance

• Poor performance is when an employee is not capable of performing to a satisfactory

standard within their role. The employer is usually obliged to follow their performance
management process prior to dismissal. This is likely to include going through the
disciplinary warnings and giving the employee, at every stage of the process, time to
improve, plus support and training if appropriate.
• It is not possible in performance situations to dismiss without having first worked
through all the stages of the relevant procedure.
 INTRODUCTION

Redundancy
 A redundancy is when the employer requires fewer (or no workers), for example:
 If the business is closing down.
 If there is less work for employees to complete.
 If there is a change in location.
 If one particular role or function is no longer required.
 If there is a reorganisation of the work meaning that there are new jobs that are very different to the old ones.
• Dismissal on grounds of redundancy can only take place after the appropriate consultation has taken place
(see LRC).
• It’s always the job that is made redundant, not the person. Also, Redundancy is not a dismissal option if you
just have someone misbehaving or no longer wish to have them around
 INTRODUCTION

• Statutory illegality or breach of a statutory restriction

• This category isn’t used often, but can be used when continuing to employ someone
would mean that you are breaking the law. For example, if you employ a trick driver
and they lose their driving licence (and you have no other work for them), or the
employee’s work permit expires.
• Statutory illegality does not give you the right to bypass any formal dismissal
procedure. You still need to follow a formal procedure to dismiss.
• ***may also consider treating as a Frustration on contract
 INTRODUCTION

• Some other reason in respect of dismissals that don’t fit into the other four categories.
• Some typical examples include:
• Expiry of a fixed term contract, or dismissing temporary employees (e.g. employees
covering an absence or maternity cover) to allow the original employee to return.
• When a client refuses to work with an employee and there is no other work that
employee can undertake.
• If there is a personality clash that’s causing a substantial issue to the business.
• If there is a significant conflict of interest e.g. a senior employee has a partner who
works for a competitor and is a serious threat.
 DISMISSAL

ETRPA section 5(5) provides that;

“For the purposes of this section an employee shall be taken to be dismissed by his
employer-
(a) (a) if the contract under which he is employed by the employer is terminated by the
employer, either by notice or without notice; or *
(b) (b) if under that contract he is employed for a fixed term and that term expires
without being renewed under the same contract; or
(c) (c) if he is compelled, reason of the employer’s conduct, to terminate that contract
without notice **
 NOTICE OF DISMISSAL

(a) ETRPA section 3- the notice required to be given by an employer to terminate the contract of
employment of an employee who has been continuously employed for four weeks shall be-
 4 weeks < 5 years = 2 weeks’ notice
 5 years < 10 years = 4 weeks’ notice
 10 years < 15 years = 6 weeks’ notice
 15 years < 20 years = 8 weeks’ notice
 20+ years = 12 weeks’ notice
 Notice shall be in writing unless given in presence of a credible witness. An employee who has been
continuously employed for 4 weeks or more shall not give less than 2 weeks’ notice to terminate his
contract
 NOTICE OF DISMISSAL

Rosmond Johnson v Restaurants of Jamaica t/a KFC –RMCA no. 17/2011

Ms Johnson terminated without notice but given 4 weeks’ salary in lieu. In discussions
with HR she was not accused of wrongdoing but enquiries made about chicken shortage.
There was no provision for a specific notice period to be given by either party to the
contract of employment.
Relied on Godfrey v Allied Stores Ltd (1990) 27 JLR at page 425 H-I
Where the contract of employment does not specify a period of notice of termination of
the contract, the minimum period of notice is that established by section 3 of the ETRPA
 NOTICE OF DISMISSAL

The appropriate period of notice is that set out in the contract, unless that period is less
than the period specified in the ETRPA. In such a case, the period specified in the
ETRPA will be the applicable period…if the contract does not specify a period of notice,
reasonable notice must be given.
Factors which are normally taken into account in determining what is reasonable notice,
include the status of the employee, the responsibilities of the post, the length of service
and the customs of the industry
 NOTICE OF DISMISSAL

The assessment of the appropriate period is an objective one. The failure of the
dismissed employee to secure alternative employment does not in itself, justify
extending the required notice beyond the statutory minimum.
The evidence of attempts to secure alternative employment subsequent to the dismissal
was ‘effective only in so far as the employee was required to show that he had taken
steps to mitigate his damages’ Cocoa Industry Board v Melbourne
 NOTICE OF DISMISSAL

Counsel for Ms. Johnson argued that the company’s handbook spoke to a ‘progressive
discipline’ policy and that termination ‘may result if progressive discipline steps do not
result in acceptable job performance’.
The court opined that this does not mandate the copy to adopt a progressive discipline
policy, which is applicable for the purposes of ‘correcting unsatisfactory job
performance’. Further the same policy alluded to ‘examples of violations which may
result in immediate termination’. It went on to stipulate that the company was entitled to
use any of the steps in the progressive discipline policy, one of which was termination
 WRONGFUL DISMISSAL

• Wrongful dismissal refers to a contractual breach relating to the termination of an employee’s

contract of employment. It involves a scenario in which the employment contract has been
terminated by the employer, and that termination breaches either one or more terms of the
contract.
• This can include breaches of both implied and express terms, such as the implied term to
provide an employee with a minimum statutory notice period, or dismissing an employee
without any notice or pay in lieu of notice, or without letting an employee serve their full
contractual notice in circumstances where the contract does not make provision for notice pay.
• Other examples can include an employer’s failure to follow a contractual dismissal procedure
or by unlawfully terminating a fixed-term contract with no express notice clause, before expiry
of the term.
 WRONGFUL DISMISSAL

“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 a just cause for dismissal…a ‘wrongful dismissal’ action
is not concerned with the wrongness or rightness of the dismissal itself. Far from making
a dismissal wrong, the law entitles both employer and employee to terminate the
employment relationship without cause. A wrong arises only of the employer breaches
the contract by failing to give the dismissed employee reasonable notice of termination”.
-Wallace v United Grain Growers Ltd [1997] 152 DLR (4th )
 WRONGFUL DISMISSAL

Notice is apply to fixed-term contracts as the expiration of the contract has been
ascertained from the outset.
In Mendez v BNS [1990-1] 4 CCLR 205 in the absence of a notice clause the court
considered the employee’s qualifications, stature, skill, training, seniority of position,
length of employment and seniority of the post in concluding that reasonable notice for
dismissal is nine months.
 CONSTRUCTIVE DISMISSAL

An employee is deemed to be constructively dismissed where the conduct of the

employer is such that the employee is entitled to treat the contract of employment as
having been terminated where the employer’s actions ‘evince an intention to no longer
be bound by the contract’ –per Collins LJ, General Billposting v Atkinson [1909] AC,
118 @122
Section 5(5)(c) of the LRIDA recognises constructive dismissal as occurring where a
workers is compelled by reason of the employer’s conduct to terminate the contract
without notice.
The LRIDA provides for the referral of an ‘industrial dispute’ pertaining to the
‘termination or suspension of employment of any worker’.
 CONSTRUCTIVE DISMISSAL

“An employee is entitled to treat himself as constructively dismissed of the

employer is guilty of conduct which is a significant breach going to the root
of the contract of employment, or which shows the employer no longer
intends to be bound by one or more of the essential terms of the contract.
The employee in those circumstances is entitled to leave without notice or to
give notice, but the conduct in either case must be sufficiently serious to
entitle him to leave at once”
-Western Excavating ECC Ltd v Sharp [1978] IRLR 27
 CONSTRUCTIVE DISMISSAL

In the decision of the Supreme Court in Melanie Tapper v First Global Bank
Ltd (unreported, judgement delivered 11 August 2009)- Anderson J noted as
follows: “it is to be noted that constructive dismissal occurs where the
employee leaves her job due to the employer’s behaviour for example the
employer has made the employee’s life difficult and the employee feels that
they cannot remain in their job. When this happens, the employee’s
resignation is treated as an actual dismissal by the employer, so the
employee can claim unfair dismissal”
 CONSTRUCTIVE DISMISSAL

”where the employee terminates the contract with or without notice in

circumstances that he is entitled to terminate it without notice by reason of the
employer’s conduct, this is sometimes referred to as constructive dismissal for,
although the employee resigns, it is the employer’s conduct which constitutes a
repudiation of the contract, and the employee accepts that repudiation by
resigning. The employee must clearly indicate that he is treating the contract as
having been repudiated by the employer and if he fails to do so, by word or by
conduct, he is not entitled to claim that he has been constructively dismissed”
-Selwyn’s Law of Employment, 12th ed.
 CONSTRUCTIVE DISMISSAL

Circumstances justifying constructive dismissal include-

A unilateral change in terms & conditions of employment eg hours of work-
Simmons v Dowty Seals Ltd
Reduction in salary- RF Hill V Mooney cf late payment of salary will not
suffice; Adams v Charles Zub Associates Ltd
Significant change in location of employment- Courtaulds Northern
Spinning Ltd v Sibson
Significant change in job description- Nelson v Kingston Cable Distributors
 SUMMARY DISMISSAL

• Employees guilty of gross misconduct, amounting to a serious breach of

their contracts of employment, are liable to be summarily dismissed, ie
dismissed without the benefit of the notice to which they would otherwise
be entitled.
• The word “summary” is not, however, synonymous with “instant”.
Allegations of gross misconduct should be investigated thoroughly before
a decision is taken to dismiss the employee in question. If those
investigations are likely to take a little time, the employee should be
suspended from work on full pay.
 SUMMARY DISMISSAL

• Laws v London Chronicle [1959] 2 All ER 285 per Evershed MR AT 287-

8
• “The question must be whether the conduct complained of is such as to
show the servant to have disregarded the essential conditions of the
contract of service…one act of disobedience or misconduct can justify
dismissal only of it is of a nature which goes to show that the servant is
repudiating the contract, or one of its essential conditions”
 SUMMARY DISMISSAL

Jupiter General Insurance v Ardeshir [1973] 3 All ER 67 @ 74 per

Maugham LJ
“It must be remembered that the test [of whether the conduct complained of
amounts to repudiation] to be applied must vary with the nature of the
business and the position held by the employee, and decisions in other cases
are of little value.
AWARDS OF THE IDT

REINSTATEMENT
UNJUSTIFIABLE DISMISSAL
 UNJUSTIFIABLE DISMISSAL/
REINSTATEMENT

LRIDA section 12(5)(c); …where any industrial dispute has been referred to the Tribunal-
(c) If the dispute relates to the dismissal of a worker the Tribunal. In making its decision or
award-
(i) may, if it finds that the dismissal was unjustifiable and that the worker wishes to be
reinstated, then subject to subparagraph 4, order the employer to reinstate him, with payment
of so much wages, if any, as the Tribunal may determine
***subparagraph 4B(b)where the dispute arose from the dismissal of a worker which is
found to be unjustifiable, the award may be made with effect from the date of the dismissal.
 UNJUSTIFIABLE DISMISSAL/
REINSTATEMENT

LRIDA section 12(5)(c); …

(ii) shall, if it finds that the dismissal was unjustifiable and that the worker does not
wish to be reinstated, order the employer to pay the worker such compensation or to
grant him such other relief as the Tribunal may determine;
(iii) May in any other case, if it considers the circumstances appropriate, order that
unless the worker is reinstated by the employer within such period as the Tribunal may
specify the employer shall, at the end of that period, pay the worker such compensation
or grant him such other relief as the Tribunal may determine;
 UNJUSTIFIABLE DISMISSAL/
REINSTATEMENT

LRIDA section 12(5)(c); …

(iv) Shall, if in the case of a worker employed under a contract for personal
service, whether oral or in writing, it finds that a dismissal was
unjustifiable, order the employer to pay the worker such compensation as
the Tribunal may determine, other than reinstatement
 REINSTATEMENT

Reinstatement, in employment law, refers to placing a worker back in a job he has lost without loss
of seniority or other job benefits.
This means reinstatement reinstates and compels the employer to return the employee to the same
job on the same terms and conditions that existed before the dismissal unless the terms and
conditions of the job have improved since then.
If it is decided that the employee is to be reinstated and this is to be done entirely retrospectively, the
IDT is then required to make this clear in the award. This would then mean that:
o -The employer would have to pay the employee all remuneration and benefits accrued between the
date of dismissal and the date of reinstatement;
o -The employee’s status is as if there was never a termination of employment.
 REINSTATEMENT

When an employee is dismissed, the relationship between employer and

employee generally deteriorates due to a lack of trust within the
relationship. Tensions between the parties might rise, making reinstatement
of no beneficial effect to either party.
Therefore, the IDT as arbitrator cannot force an employee to accept the
remedy of reinstatement. The LRIDA has taken this somewhat into
consideration.
 AWARDS OF THE IDT

MLSS et ors v West Indies Yeast Co. Ltd (1985)

3 workers served with letters terminating their employment, with one
month’s pay in lieu of notice. Subsequently wrote to MLSS seeking
intervention in a dispute with the employer over their unjustifiable
dismissal. After conciliation hearings, the matter was referred to the
Tribunal under s11A(1)(a) of the Act.
 AWARDS OF THE IDT

The terms of reference were-

“To determine and settle the dispute between West Indies Yeast Co Ltd on
the one hand, and Messrs. Devon Barrett, Lionel Henry and Lloyd
Dawkins, formerly employed by the Company, on the other hand, over the
termination of their employment”.
The company subsequently applied to the Supreme Court for orders of
certiorari and prohibition to quash the reference of the Minister and to
prevent the Tribunal from proceeding upon it.
 AWARDS OF THE IDT

The company argued inter alia that by making payment in lieu of notice (and
that payment having been accepted by the workers), the Company had lawfully
and effectually terminated their employment. Therefore, since the terminations
were lawful, the Tribunal did not have jurisdiction.
Smith CJ reasoned that the company’s suggestion that had the legislation
referred to ‘unfair’ dismissal as appears in UK legislation instead of
‘unjustifiable’ dismissal then a worker could complain to the Tribunal despite the
dismissal being ‘lawful’ (ie not wrongful dismissal) is without merit as both
words are synonymous.
 AWARDS OF THE IDT

The consensus of the court was that the dismissals which provided notice or pay
in lieu of notice, were lawful (not wrongful). However, dismissal though lawful,
could still be unfair (or unjustifiable) and therefore fall under the jurisdiction of
the Tribunal.
This is because, whereas the common law merely seeks to determine the legality
of action, the LRIDA introduces a moral imperative whereby the employer is
obligated to justify, on fair grounds, his dismissal action. An employee who
feels that his dismissal (though lawful) is unjustifiable or unfair, may appeal to
the Minister to have the matter reviewed by the Tribunal.
 AWARDS OF THE IDT

Allied Protection Ltd and Joseph McLean, IDT 26/2012

McLean was terminated summarily after he was involved in a physical altercation
with a colleague, while in the presence of a supervisor. The matter was reported to
the HR manager who called him to a meeting where he was advised that his
service would be terminated. The company submitted that McLean had been given
several verbal warnings and was previously disciplined for fighting on the job. On
the last occasion he was given an opportunity to defend himself and a final
warning. On this occasion, the company concluded his behavior to have been
‘gross misconduct’ on account of which he was dismissed after the disciplinary
 AWARDS OF THE IDT

McLean engaged the services of an Industrial Relations consultant of the NWU,

who argued that the procedure under the LRC must be complied with before
disciplinary action is taken, therefore the dismissal was unjustified. The
company did not respond to the consultant’s request to meet so in the absence of
a local level meeting, the consultant reported the dispute to the Ministry. No
resolution was reached so the Minister referred the dispute to the Tribunal in the
following terms: “To determine and settled the dispute between Allied
Protection Limited on the one hand and Mr. Joseph McLean on the other hand
over the termination of his employment”
 AWARDS OF THE IDT

The Tribunal noted that that the company’s failure to have the other worker with
whom McLean had the heated exchange before the other security guard
intervened and the fight ensue, attend the meeting, the failure to have McLean
give a written statement setting out his version of events as well as to advise
him to take a representative to the meeting, led to a conclusion that the
investigation was unfair. McLean also wasn’t given any charges in writing.
In finding his dismissal to have been unjustified, the Tribunal awarded that
McLean is reinstated by a specified date failing which he is to be compensated
by a payment of 20 weeks salary.
 AWARDS OF THE IDT

Axis Limited and Kerry Fullerton IDT 20/2013

Fullerton called to a meeting with her Managing Director to discuss billable hours,
speed of response and attendance. She attributed this to economic downturn, fewer
tasks being assigned to her and her absence due to illness. A few days later she was
escorted by police from the office after the company received a letter which
cautioned that Fullerton intended to cause harm so be careful what they ate. This
coincided with a worker falling ill allegedly from eating contaminated food.
Fullerton proceeded on previously approved vacation leave. Upon her return to work
she was advised by MD that decision taken to separate her. She formed the view that
her dismissal was really because the company was restructuring
 AWARDS OF THE IDT

HR told the Tribunal that she dismissed Fullerton with pay in lieu of notice
hence no hearing required, and conceded that the post was later made
redundant.
Tribunal found the company failed to observe clause 22 of the LRC as Fullerton
not given a reason for her dismissal, an opportunity of a hearing, the right to be
represented of the right of appeal. IDT considered section 3(4) of the LRIDA in
concluding that company acted unfairly and unreasonable therefore Fullerton
unjustifiably dismissed.
THE LABOUR RELATIONS CODE
 LRC

• “A failure on the part of any person to observe any provision of a

Labour Relations Code which is for the time being in operation
shall not of itself render him liable to any proceedings; but in any
proceedings before the Tribunal or a Board any provision of the
code which appears to the Tribunal or a Board to be relevant to
any question arising in the proceedings shall be taken onto
account by the Tribunal or Board in determining that question”
• - Section 3(4) LRIDA
 LRC

• Rosmond Johnson v KFC- it was argued that the LRIDA and Code was
incorporated in the contract of employment either expressly or
impliedly. Therefore in seeking to terminate her employment, the
company was obliged to follow the disciplinary procedure set out in the
Code. So the dismissal was not only wrongful but also unfair
• The court had no difficulty accepting this argument except for the fact
that the circumstances giving rise to the case pre-dated the 2010
amendment.
 LRC

Citibank v Sophia Campbell IDT 20/2014

In concluding that the aggrieved worker had been unjustifiably dismissed,
the IDT noted the employer’s improper approach to terminating the
employment contract by not affording a fair and proper hearing. There
was also no proper investigation which suggested bias the outcome of
which is questionable decisions.
The Tribunal specifically referenced clauses 3(1)and (3) of the code as
well as the implied grievance procedure at clause 22.
 LRC

Court Management Services and Jacqueline Scott-Crossley IDT 39/2014

The worker was terminated for operating outside the scope of her Terms
of Reference. The letter of termination referred to the provision for notice
in her contract for which she was to be paid in lied. She was to proceed on
vacation leave at the end of that day, and was therefore directed to not
return and had over her keys, telephone and other property belonging to
CMS.
 LRC

In concluding that the worker had been dismissed unjustifiably, the IDT
relied on the following clauses in concluding that the worker’s
employment is not to be treated as an article of trade as she is to be
afforded some dignity.
2, 3(i) (c), 411(c)and 19 (b)
INITIATING DISCIPLINARY
PROCEEDINGS

THE CHARGING LETTER

 THE CHARGING LETTER

• This letter forms part of your suite of materials to support you where you have
invoked your disciplinary policy and its process because of inappropriate
conduct by one of your employees.
• This letter may not be the first written communication that you send to your
employee.
• You may already have informed the employee of the allegation against them and
suspended them from duty, using our relevant letter for this. If you have already
suspended the employee, you should select the second option for the opening
paragraph of this letter.
 THE CHARGING LETTER

• ‘Gross misconduct’ is far more serious than other forms of employee misconduct. Anything
that counts as misbehaviour by an employee can be described as ‘misconduct’. However,
there are different types of misconduct that describe the various levels of seriousness:
general misconduct (poor performance), serious misconduct, and gross misconduct.
• If an employee does something that is so serious it destroys the employee-employer
relationship, you're able to dismiss them rapidly, without notice and without any pay
instead of notice, as long as you follow a proper and fair process of dismissal.
• Instant dismissal isn't actually instant, normally. This kind of dismissal is often called a
'summary dismissal'. It's regularly described as 'instant dismissal' too, but due to the legal
need to still demonstrate a fair dismissal process, it's rarely literally instant.
 THE CHARGING LETTER

• Your employment contract with the employee should make very clear
what behaviour or activity constitutes ‘gross misconduct’ and is
therefore worthy of this escalated dismissal treatment. For good
measure, this should be stated clearly in the staff handbook/disciplinary
manual
• You should consider these within the general category of misconduct,
and/or potentially within serious misconduct, although repeated
episodes might cumulatively end up with you being justified in taking
more severe action, including dismissal, against the employee.
THE END