Business Law

Introduction

An employee as an individual who has entered into or works under a contract of employment and can make a claim for unfair dismissal by someone else who is working in an organization.

The Employment Rights Bill of Barbados seeks to confer on persons, primarily employed person their employment rights. Among the rights provided - is a right to a statutory minimum amount of notice of termination for both employers and employees.

The Bill establishes a Tribunal called the Employment Rights Tribunal for the determination of issues relating to the employment rights, but provides that complaints must first be referred to the Chief Labour Officer for an opportunity for a settlement to be reached by conciliation and If a settlement is not reached, then there is processing and referral to the Tribunal.

The Tribunal is given wide powers, subject to an appeal to the courts on questions of law, to determine complaints. These powers include, in appropriate cases, power to award compensation and power to order reinstatement or re-engagement of an unfairly dismissed employee. Section 23 states that an employee has the right not to be unfairly dismissed by his employer.

Wrongful and unfair dismissal

At common law the employer/employee relationship is contractual, wrongful dismissal is based on contract law. Any claim for Wrongful Dismissal will therefore mean looking at the employee's employment contract to see if the employer has broken the contract. The employer may terminate the contract of employment by serving appropriate notice as expressed in the contract or implied reasonable contract or implied reasonable notice wrongful dismissal occurs when the employee is dismissed without notice or with inadequate notice. (Refer Richardson v Koeford [ ] and Eastwood and another v Magnox Electric plc [2004]

The concept of unfair dismissal was introduced in England in 1971 and the claim is based on the grounds that the employee has been dismissed for reasons and in a manner suggesting the circumstances did not justify his dismissal. Simply stated, unfair dismissal is when your employment contract is terminated and your employer did not have fair reason to do so. It can also be claimed if your employer did have fair reason but handled your dismissal using the wrong procedure. You are protected by law against both these eventualities.

Difference between wrongful and unfair dismissal

In order to determine which course of action to be applied, we first examine the differences between wrongful and unfair dismissal.

The most significant difference between wrongful and unfair dismissal is that the parties when entering into the contract of employment may have agreed on the requirements of notice of termination. Therefore once notice is properly communicated