Procedural Unfair Dismissal Part 1

 

Q: My former employer fired me from my job a few weeks ago but I believe it is unfair dismissal. Could you explain the process because I am considering going to the Tribunal.

A dismissal is unfair if the employer follows a wrong procedure and does not have a fair reason for the termination. I propose to break procedure up into two (2) parts dealing first with the Standard Disciplinary Procedure and the Modified Disciplinary Procedure in a subsequent posting. This week the focus is on the Standard Disciplinary Procedure.

Every employee pursuant to section 27 Employment Rights Act has the right not to be unfairly dismissed however, the employer relying on section 29 (2) Employment Rights Act could dismiss for capability, conduct, redundancy or illegality. The aforementioned is subject to the Standard Disciplinary Procedures and the Modified Disciplinary Procedures set out in Parts B and C, respectively of the Fourth Schedule. The common misconception is that the employer must follow both procedures no doubt because of the ‘and’ but the Caribbean Court of Justice position in Chefette v Orlando Harris 2020 CCJ 6 AJ @ 46 citing the Chefette v Orlando Harris BB 2017 CA 13 appeal explained

“To satisfy this requirement, the employer must show that he followed, as appropriate, either the Standard Disciplinary Procedures or the Modified Disciplinary Procedures set out in Part B and C respectively of the Fourth Schedule of the ERA.”

The employer must also show as a preliminary step quoting from the same decision that

“To be sure, section 29 (5) imposes a burden upon an employer dismissing an employee for his capability or conduct to show that the employee was informed of the accusation against him and was given an opportunity to state his case in the manner stipulated in Part B of the Fourth Schedule. If the employer fails to discharge this burden, the employer is disentitled from invoking the right of dismissal conferred on him/her by section 29 (2) Employment Rights Act and that is the end of the matter.”

My reading is that failure on the part of the employer to apply strictly the process results in an automatic unfair dismissal for the employee.  

To be clear the section 1 Part B Fourth Schedule Employment Rights Act mandates that the employer set out the allegation in writing, send it to the employee and invite him to attend a meeting along with a representative. That meeting to which the Act refers is a disciplinary meeting and not an investigatory meeting because according to Woolmington v DPP [1935] AC 462 he who alleges must prove. This means the employee is under no statutory obligation see First Citizen Bank Ltd v Debra Brathwaite Civil Appeal No. 16 of 2019 @ 30 to help the employer prove his case by going to and participating in an investigatory meeting. 

This meeting section 2 Part B Fourth Schedule Employment Rights Act must take place before any disciplinary action and where practicable within seven (7) working days of the delivery of the allegation. Consider section 39 Interpretation Act Cap 1, which excludes bank holidays and weekends, but an employer could deliver the allegation a Monday and call the meeting a Thursday, which on the face of it does not offend the provision. At this stage, section 2 (b) Part B Fourth Schedule Employment Rights Act is instructive providing that “the meeting must not take place unless the employee has had a reasonable opportunity to consider his response to the information referred to in paragraph (a)(ii).” This is especially important where the employer uses suspension with pay as a means to investigate and gather evidence over a period on the one hand but insists see Carolyn Haynes v Barbados Beach Club ERT/2016/185 @ 6.10 that the employee gets less than the period taken by the employer to prepare on the other hand.

Further to this section 4 Part B Fourth Schedule Employment Rights Act directs that.

“After the meeting, the employer must inform the employee in writing of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.”

The appeal offers an opportunity to see whether, according to Khan v Stripestar Ltd UKEATS/0022/15/SM, a second or subsequent process internal to the employer can remedy a defective first stage. At this point, the employee ought to concern himself with the position of Cumberbatch JA in First Citizen Bank Ltd v Debra Brathwaite Civil Appeal No. 16 of 2019 @ 25 where he explained.

“While we are of the view that even though it is desirable to keep the two functions of investigation and discipline, and the relevant personnel engaged in each, separate, we do not consider their mere conflation without more to be an automatically unfair process.”

In the instant case the Respondent did not put to use the appeal option at the dismissal stage but given the manner in which the investigation and disciplinary hearing unfolded the likelihood is that the same persons would carry out the appeal. This I would suggest is the more alluded to by the Court of Appeal. It is in the employee's best interest to appeal.

Next week I will examine the Modified Disciplinary Procedure and the reason for its use by the employer during the disciplinary process.

I hope this helps.