The Employment (Termination and Redundancy Payments) Act ensures that an employee receives the necessary warnings and/or notices before being dismissed and  ensures that they are protected under the provisions of this Act.
NB: It is important that ALL employers are aware and knowledgeable of the requirements under the Act and seek legal advice when considering a dismissal for any reason as error here can be costly in the long run and lead to unnecessary legal ramifications and costs for the company.

The Act prescribes a period of time within which an employer MUST inform his employee of a decision to terminate their employment called the notice period. The relevant section is found in PART II Section 3 of the Act This notice period is only applicable to workers who have been continuously employed for four weeks or more. The duration of notice that the employee is entitled to varies in accordance with the duration of service that they have provided to the employer. The latter part of the document will set out the statutes and relevant information as it concerns employee dismissal.

CHECKLIST

The Act prescribes the following minimum notice periods for the corresponding length of service:

• Two weeks’ notice for an employee with less than five years of service.

• Four weeks’ notice for an employee with five or more years of service, but less than ten years

.• Six weeks’ notice for an employee with ten or more years of service, but less than fifteen years.

• Eight weeks’ notice for an employee with fifteen or more years of service, but less than twenty years.

• Twelve weeks’ notice for an employee with more than twenty years of service.

NB: The Act is accompanied by regulations which set out a formula applied in determining, what amounts to continuous employment and in determining when an employee has reached the prescribed number of years of service.

There are also minimum periods of notice under the Act . The employer and employee are at liberty to agree to longer periods, but they may not, even by agreement, adopt shorter periods of notice than what is specified in the Act.

The Act entitles an employee to demand a longer period of notice than that which is specified if by custom the notice period is required to be of longer duration. This provision may be seen as somewhat unprincipled as the act does not go on to elaborate on what is meant by custom or required. These provisions are then left up to determination by a Court which would no doubt be determined in reference to the specific facts of each case. This does not promote the overall thrust of the act, which is to provide certainty for employer and employees as to the procedures for termination.The Act also allows the employer to make a payment in lieu of notice, rather than allowing the employee to continue in work throughout the duration of the notice period. Though this comes at a cost, many employers prefer to make this payment as the reactions of a worker who is aggrieved by the news that they will soon be out of a job may be unpredictable. Having them go home immediately may be a tidier and more humane approach.An employer is not required to give notice or make a notice payment to an employee within their probationary period. However, that the probationary period must be specified in the employment contract. Notwithstanding this, where the prescribed probation period exceeds ninety days, the employer will be required to give notice above that ninety-day period.

FIXED TERM CONTRACTS

If there is a fixed term contract, there is no need for an employer to give notice where that contract comes to an end on the expiration date. But, if an employee under a fixed term contract continues to work up to four weeks after the expiration date, then all requisite notice periods will apply as though the employment was for an indefinite period.

DUTIES OF EMPLOYEES 

Employees also have a duty to give at least two weeks’ notice to their employers before leaving their jobs; in practice, this requirement is often ignored by the employee.

EMPLOYEE DISMISSAL WITHOUT A FAIR HEARING

The governing statute as it relates to employee dismissals is  The Labour Industrial Relations & Industrial Disputes Act (LRIDA) (LRIDA) in 1975. The LRIDA provides the legislative basis for the Labour Relations Code (the Code) enacted in 1976.

The seminal case of Village Resorts Ltd v IDT and Anor (unreported June 30, 1998), President Rattray stated that the Code is specifically mandated to protect workers and employers against unfair practices. Unjustifiable dismissal as an act not in accordance with justice or fairness and that this code has altered the common law principles  governing employment contracts.

NB: In 2010, the LRIDA was amended to allow all employees to access to the Industrial Trade Tribunal and make a claim for  unjustifiable dismissal removing the limitation to unionized employees . Further that employees can no longer be dismissed “on the spot”. The employer must therefore now go further and establish that the  employer’s action and manner in dismissing the employee was justified.

The requirement is for fairness in relation to the termination of all employees, in that the employers must state reasons for dismissal, since the fairness of that dismissal is, upon referral of the matter to the IDT, open to scrutiny.

The importance of fairness was emphasized in the case of National Commercial Bank v Industrial Disputes Tribunal and Peter Jennings [2016] JMCA Civ 24 which also articulates the principles of natural justice in that :a. An accused has the right to be heard;b. A man should not be a judge in his own cause;c. The person charged should know the case he has to meet.

It is critical that all employers especially in large companies  such as CHEC (from large familiarize themselves with the LRIDA and the Code.

The role  of the  legal counsel  in such organizations is for their advice to be sought  to prepare and establish internal procedures complying with the Code for use when disciplining and considering the dismissal of an employee. If this is not done, employers bear the risk of paying substantial sums in compensation to employees. 

The Jamaican case law is clear on this and in the case of of Rattray P in Village Resorts stated:“The relationship between employer and employee confers a status on both the person employed and the person employing. Even by virtue of the modern change of the nomenclature from master and servant to employer and employee there is a clear indication that the rigidities of former relationships have been ameliorated by the infusion of a more satisfactory balance between contributors in the productive process and the creation of wealth in the society.”

Lastly, the jurisdiction of the IDT is final and subject to review by the court in very limited circumstances as can be seen in the case of IDT v UTECH [2012] JMCA Civ 46.

#labourlaw #employmentlaw #lawyerinJamaica