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Dishonest workers

The Employment Rights Act which creates the cause of action known as unfair dismissal still preserves the right of an employer to summarily terminate an employment contract for just cause. Section 22 of the Act pays homage to the common law right of summary dismissal and it is always open to an employer to immediately bring to an end the employment of any individual on good and established grounds.

One such ground is that of gross misconduct which has been interpreted in a variety of ways, the most obvious being the dishonesty of an employee. In Colony Club (Barbados) Limited v Myrna Sealy-Hinkson Magisterial Appeal No. 3 of 2009, the Court of Appeal outlined the test for whether the conduct of an employee had reached the threshold to allow an employer to resort to summary dismissal. The court found that “…the test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship.

This test can be expressed in different ways.  One could say, for example, that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligation to his or her employer.”

There are no hard and fast rules, however, as to what level of dishonesty amounts to a breakdown in the relationship and the court went on to state that each case must be decided on its own merits. The court will give consideration to the nature and seriousness of the dishonesty to mitigate “the possibility that an employee will be unduly punished by the strict application of an unequivocal rule that equates all forms of dishonest behaviour with just cause for dismissal.” In other words being caught in a white lie that does not go to the root of the contract of employment will not entitle the employer to bring the relationship to an end. The punishment must be proportionate to the crime and summary dismissal is reserved for the gravest of offences which go to the root of the employment relationship.

In the Colony Club case the employee, a supervisor, was accused of having taking more than her allotted half hour’s break while problems occurred at the front desk in her absence. When called to account by senior management she lied about the amount of time she had been away from work and the circumstances in which she came to be absent. The court found that the fact that the employee remained on the premises albeit away from the front desk and that two other employees should have been present “was not “sufficiently egregious to violate or undermine the obligations and faith inherent to the employment relationship” of over a decade of service”. Consequently the summary dismissal of the employee was wrongful and would entitle her to receive damages (compensation).

The Court of Appeal also took the opportunity to point out the need for a properly conducted investigation of allegations of gross misconduct and referred to its decision in CO Williams Construction Limited v Frederick Kenmore Dash, Magisterial Appeal No. 7 of 2008. The court pointed out that at common law there is no duty on the part of an employer to actually conduct an investigation before terminating the contract of employment but that the employer runs the risk of failing to prove to a court that there was just cause for dismissal where no or no proper investigation has been carried out. A properly executed contemporaneous investigation of the allegations of employee misconduct provides the evidence which the court will assess in determining whether the dismissal was proportionate and justifiable in all the circumstances.

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