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Employment rights

Even with the passing of the Employment Rights Act which came into force this year, the law relating to the employer/employee relationship is still not contained in one place.

Section 22 of the act preserves both the common law right of an employer to summarily dismiss an employee for good and cogent reasons as well as the right of an employee to consider himself as constructively dismissed.

In Western Excavating (ECC) Ltd. v. Sharp [1978] 1 All ER 713 at 717 the court stated: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.”

In determining whether or not an employee has been constructively dismissed the court must examine the conduct of the employer to determine as stated in Courts (Barbados) Limited v Mary Inniss, unreported “whether the employer is responsible for some conduct which objectively constitutes a fundamental change in the employment or a unilateral change of a significant nature, evincing an intention on the part of the employer not to continue the employment contract upon its previous terms”.

The court went on to identify certain classes of conduct which had been found to amount to constructive dismissal including “demotions, reductions in remuneration and benefits and changes in status, power and authority of the employee”.

The list is not exhaustive and in any case it is a matter of fact and degree whether the particular circumstances of each case meets the threshold of offending conduct such as to amount to termination of the employment contract.

The test is an objective one and not on how the individual employee has been affected, but whether any employee in similar circumstances could have considered that the employer meant to bring the contract to an end.

The court will have regard to the type of employment, the number of wrongful acts perpetrated by the employer, the intention of the employer as can be inferred from the words or actions and so on.

In the Courts’ case (above) the Court of Appeal found that the respondent had in fact been constructively dismissed on the basis that “the position and responsibilities of the respondent as relief and training manager were significantly different from her former post as branch manager”. This finding was made even though her salary and other benefits remained the same.

The decision of the appellant amounted to a unilateral change in the terms and conditions of the employment contract with the respondent and coupled with a lack of reassurance from her employer, the demotion in status and the uncertainty of her continued employment, she was therefore entitled to damages for wrongful dismissal.

Conversely in Tyrone Waithe v Caribbean Confection Co (1959) Ltd., unreported, after the sale of a company, the new owners required the appellant to punch a time clock, to possibly work on Christmas Eve and be paid wages on an hourly basis. He alleged that these requirements were fundamental changes to his employment contract but the Court of Appeal disagreed.

The Court stated: “Management is entitled to make changes in plant-level operations in order to maximise productivity and promote efficiencies. Management must be allowed the prerogative to reorganise processes of production in the interest of efficiency provided, of course, that such reorganisation does not strike fundamentally at the heart of the employment relationship.”

The new owners could not be “fettered in their decision to improve inefficiencies and reduce the opportunity for cheating the system”.

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