#BTColumn – Dear HR . . . Explain the different types of employee dismissals

Disclaimer: The views and opinions expressed by the author(s) do not represent the official position of Barbados TODAY.

by Carol-Ann Jordan and Jacqueline Belgrave

What is the difference between unfair dismissal, constructive dismissal and wrongful dismissal?

Unfair dismissal, constructive dismissal and wrongful dismissal are all ways in which your contract of employment can be unlawfully terminated.

Nevertheless, there are differences in the processes applied and remedies that can be obtained in each circumstance.

Unfair Dismissal

A dismissal is unfair when an employer terminates your contract without a fair and good reason to do so.

The right to be dismissed fairly is a right created by statute (law) – in Barbados the statute is the Employment Rights Act, 2012-9 (the “ERA”).

Fairness is determined by the reason which is given as stated in the ERA. Additionally the employer must act reasonably and a fair disciplinary procedure must be followed.

According to the ERA, unfair reasons for termination are, for example:

• Being an officer or shop steward of a trade union

• Refusing to carry out an instruction by your employer that contravenes the circumstances set out in Section 104 the Safety and Health at Work Act

• Refusing to carry out an unlawful instruction by your employer

• Discrimination on grounds of sex, religion, gender, race, political affiliation or opinion, marital status

• Absence as a result of a national duty – i.e. jury duty or any other civic national duty imposed by law, selection to participate in a sporting event or some other association at a regional or national level.

• Pregnancy or reasons connected to the pregnancy

Unfair dismissal claims must be taken to the Employment Rights Tribunal through the Chief Labour Officer (CLO).

The Tribunal has exclusive rights to hear such matters and the claim must be brought within three months of the date
of the dismissal.

The remedies available to you if you are found to have been dismissed unfairly are re-engagement, reinstatement or compensation.

Re-engagement requires the employer to re-employ you on new terms, with no loss of continuity of employment in a job comparable to your previous one. Reinstatement requires the employer to give you your job back and treat you as if you were never dismissed.

Where the employer is unable, or unwilling, to reinstate or re-engage you, the Act makes provision for you to be paid a sum of money (as determined by the law) to compensate for the breach.

Constructive Dismissal

In a case of constructive dismissal, you treat yourself as dismissed, based on the actions of your employer.

You can claim constructive dismissal where your employer has done something that seriously breaches your employment contract so that you were left with no other choice but to resign.

The decision to resign could be because of one serious incident or a series of things. These reasons for the decision should be outlined in your resignation letter.

As we said in a previous article, resigning from your job and proving that you were constructively dismissed is not a straight forward task.

You must demonstrate that your resignation was a direct response to a breach your employer committed, the breach was a repudiatory breach of your employment contract and you did not waive or affirm this breach of contract by your employer.

A repudiatory breach is a breach which is so serious that it goes to the core of the contract and deprives you of its benefit. Affirming the breach is where you are aware of the breach, accepted it and let the contract continue.

Examples of breaches that could constitute reasons to consider yourself constructively dismissed are:

• Not being paid the agreed amount without a good reason, or being demoted and paid less

• Changing your duties without notice or agreement where there is no provision for such change in your contract, particularly where the changes are significant

• Raising a grievance that the employer refuses to look into

• Serious or continued failure to provide a safe working environment

As with unfair dismissals, a claim for constructive dismissal can be made under the ERA and the remedies for constructive dismissal are the same.

Wrongful Dismissal 

A wrongful dismissal is determined, not by statute, but by common law (custom and practice, precedent – previous cases determined by the court) – it is a dismissal in breach of your employment contract.

This breach occurs where an employer dismisses you in breach of a provision in your contract.

This often occurs where an employer dismisses you without giving a notice period or pay in lieu of notice or the full period of notice to which you would be entitled under your contract of employment.

A claim of wrongful dismissal must be adjudicated by the court.

Unlike unfair dismissal claims, you have up to six years to make a claim in court for wrongful dismissal.

If found to be wrongfully dismissed, you would be awarded damages which would normally equate to the value of the pay and benefits you would have been entitled during the period of notice that you should have been given, had the contract been terminated lawfully.

About Lifeline Labour Solutions: Lifeline Labour Solutions is a boutique partnership providing people management solutions to workplace challenges Partners Carol-Ann Jordan and Jacqueline Belgrave are established practitioners with a wealth of knowledge and experience in Employment Relations, Labour Relations and Human Resource Management between them. Email: info@ lifelinelabour.com; Tel: 1(246)247-5213