ATTORNEYS’ CALL: Employers told to re-examine disciplinary practices after CCJ ruling

At least two attorneys-at-law are urging Barbadian employers to take a closer look at how they manage employee misconduct and discipline, following guidance emerging from a recent Caribbean Court of Justice (CCJ) decision that reinforces the importance of fairness, consistency and contractual compliance in workplace disciplinary processes.

 

The call comes from attorneys-at-law Katriel Pile and Maya L. Kellman, who while sharing a joint analysis of the CCJ’s ruling in Massy Stores (Barbados) Limited v Forde [2025], also highlighted what they described as critical principles employers must get right when disciplining or dismissing employees.

 

The CCJ ruling arose from a dispute between Massy Stores (Barbados) Limited and a former employee who challenged his suspension and subsequent summary dismissal. The case centred on whether the employer was entitled to bypass its own disciplinary procedures and terminate the employee without notice.

 

In its decision, the court reaffirmed that summary dismissal, that is, dismissal without notice, is justified where an employee’s actions amount to a repudiatory breach of an essential term of the employment contract.
The court opined that because a form of misconduct maywarrant dismissal, it does not automatically justify summary dismissal if other relevant considerations are present.

 

While the lawyers stopped short of saying employers must overhaul their systems completely, Pile said the decision should prompt a careful reassessment of existing policies and practices.

 

“I wouldn’t necessarily say change [everything], because of course it depends on the employer himself and the practices or policies they may have in place,” Pile told Barbados TODAY in an interview.

 

“But what I will urge them to do is to relook their current policies and practices, make sure they’re consistent in everything that they do, and make sure that everything they have in place is fair and legal, in keeping with the guidance and stuff that would have come out of the case itself.”

 

In the joint article examining the implications of the ruling, Pile and Kellman stressed that disciplinary obligations such as progressive discipline, that is, written warnings and suspensions, are often included in employee handbooks, collective agreements or company policies which become contractually binding once incorporated into an employment contract.

 

They noted that even where progressive discipline is not expressly written into a contract, it may still be implied based on an employer’s consistent practices, case law, legislation or recognised standards, making adherence essential to avoid breach of contract.

 

One of the key clarifications that Pile and Kellman sought to make is that procedural fairness requirements can apply regardless of an employee’s length of service, once disciplinary procedures form part of the contract.

 

“Most employers obviously have the perception that because employees are under a year that you don’t have to progressively discipline them or invite them to a disciplinary hearing because there’s not the risk of an unfair dismissal claim,” they said.

 

“However, coming out of the case, it is clear that where progressive discipline is incorporated into your contract, the right to a disciplinary hearing would be implied into the contract as well. This would be irrespective of tenure, outside of the probationary period.”

 

The attorneys also underscored the CCJ’s emphasis on proportionality, cautioning employers against imposing sanctions that exceed what is reasonably necessary in the circumstances. Even where misconduct is established, they said employers must consider mitigating factors, past practice and the overall context before deciding on penalties, including dismissal.

 

Another key area highlighted was suspension without pay. Pile and Kellman explained that an employer’s authority to suspend an employee without pay depends entirely on whether that power exists in the employment contract or an incorporated policy. Without such authority, a suspension without pay may be unlawful, exposing the employer to claims for lost wages.

 

They also pointed to what they described as a “humanising patina” approach in Barbadian employment law, recognising that employees are human and that not every breach of workplace rules will justify dismissal.

 

Asked about the risks employers now face if they fail to apply these principles, Pile said the consequences could be significant.

 

Pile and Kellman said the broader takeaway from the Massy Stores ruling is that discipline is not simply about enforcing rules, but about doing so lawfully, proportionately and with an appreciation of the human realities of the workplace.

 

shannamoore@barbadostoday.bb