Loreal Campbell

University of Technology
Faculty of Law
Employment Law is the body of laws that governs the relationship between employee
and the employer, including individual employment contracts, the application of industrial torts
and contract doctrines, and regulates legally on issues related to collective bargaining
agreements, protection from discrimination, wages and hours, and health and safety.
A person is employed until he is given reasonable notice to cease. An employment
contract maybe discharged for a fundamental breach such as gross misconduct or on the process
of redundancy. Under the common law, an employer had no obligation to state reasons for
terminating an employment contract. Today, given the requirement for fairness in relation to the
termination of all employees, the Jamaican Legislations have imposed new standard on the
employers powers of dismissal as employers must now state reasons for dismissal. 1
Where an employee is unfairly dismissed, it is the employers duty to determine why the
person is unfairly dismissed or if there were more than one reason for dismissal it has to be
specified. If the employer fails to prove the reason, the dismissal is deemed to be unfair. The
word unfair equates with the word unjustifiable and not with the words unlawful or
wrongful.2 It was recognized that common law could not give adequate protection to
employees through the contract of employment, in that the wrongful dismissal clams depends
upon a breach of contract by an employer usually in the form of inadequate notice being given to
an employee. Many dismissals can be considered unfair that do not amount to breaches of
contract because under common law wrongful dismissal claims looks not to intention, motive or
1

Jamaica Flour Mills Ltd v Industrial Disputes Tribunal and the National Workers Union SCCA No. 7 of 2002

2 Village Resorts Ltd v. The Industrial Disputes Tribunal and Another S.C.C.A No. 66/97 (Unreported)

Loreal Campbell
University of Technology
Faculty of Law
the effect on an employee of a termination of the relationship nor to procedural protections, but
merely to the form in which that relationship has been brought to an end. 3 It was with these short
comings in mind that saw the advent of statutes to protect the rights of employees and
employers. The Labour Relations and Industrial Disputes Act 4 (LRIDA) and its Code5 are the
relevant Jamaican Statutes which provide and employee with an alternative to the common law.
The Labour relation code was designed to encourage and assist in co-operation between
all concerned, that is, management and individual employees, trade unions and employer's
associations. Under the LRIDA an Industrial Dispute Tribunal was established and whose
mandate is to preside over matters or disputes concerning employees and employers. There were
amendments made to the act in 2010. Before 2010, the Act (LRIDA) made provision for only
unionised employees through their trade unions to submit disputes to the Industrial Disputes
Tribunal (IDT). For that reason, when a non-unionised worker was aggrieved about the manner
or circumstances of their termination, his only recourse was to bring a claim before the courts to
seek damages for wrongful dismissal. His remedies were limited, in that he could only expect to
recover as compensation the amount to which he would have been entitled if his employment
was terminated according to the terms of his employment contract. In other words, he was
entitled to recover his notice pay and pay for any accrued vacation. The court's general position
was that it would not force parties to remain together under an employment contract by ordering
3 Simon Honeyball Employment Law 13th edition 2014. Pg 145
4 April 8, 1975
5 Labour Relations Code 1976

Loreal Campbell
University of Technology
Faculty of Law
the employee's reinstatement and the manner and circumstances of the employee's dismissal was
of little consequence. Since March 2010, the ordinary, non-unionised employee is now on equal
footing to his unionised counterpart in relation to employment termination. The employer who
could dismiss an employee 'on the spot' no longer had that right, except in perhaps very limited
circumstances, if they exist at all. All employers should now give the reason for dismissing the
employee whether their contracts allow for dismissal without cause or not. Therefore, if an
employee was caught stealing or engaging in a fight at the workplace before amendment to the
act, he could expect to be immediately dismissed, without notice or payment in lieu of notice.
Today, that employee has the right to a fair hearing before he may be dismissed, and he may still
be entitled to notice of termination or notice pay.
If an employer did not give reason for the dismissal he may be called upon to prove to the
IDT that the dismissal was justifiable. Should it fail to do so, the IDT can do what the Courts
cannot, which is force the employer to reinstate the dismissed employee. Section 12 (5)(c) of the
Labour Relations and Industrial Disputes Act speaks to this. The relevant sections are cited
below:
If the dispute relates to the dismissal of a worker the Tribunal, in making its decision:
(i) May, if it finds that the dismissal was unjustifiable and that the worker wishes to be reinstated,
then subject to subparagraph (iv), Order the employer to reinstate him, with payment of so much
wages, if any, as the Tribunal may determine

Loreal Campbell
University of Technology
Faculty of Law
(ii) shall, if it finds that the dismissal was unjustifiable and that the worker does not wish to be
reinstated, order the employer to pay the worker such compensation or to grant him such other
relief as the Tribunal may determine;
(iii) may in any other case, if it considers the circumstances appropriate, order that unless the
worker is reinstated by the employer within such period as the Tribunal may specify the
employer shall, at the end of that period, pay the worker such compensation or grant him such
other relief as the Tribunal may determine;
(iv) shall, if in the case of a worker employed under a contract for personal service, whether oral
or in writing, it finds that a dismissal was unjustifiable, order the employer to pay the worker
such compensation or to grant him such other relief as the Tribunal may determine, other than
reinstatement, and the employer shall comply with such order.
The case of Jamaica Flour Mills Ltd v Industrial Disputes Tribunal and the National
Workers Union6 where the appellant had dismissed three employees without any communication
to the National Workers Union, or the employees themselves, the dismissal had been
'unjustifiable' for the purposes of s12(5)(c) of the Labour Relations and Industrial Disputes Act 7.
Jamaica Flour Mills Ltd apply for judicial review to quash an award of the Industrial Disputes
Tribunal dated October 10,2000 made in relation to an industrial dispute between themselves and
the National Workers Union (the Union) concerning the dismissal of three workers on the
6 SCCA No. 7 of 2002
7 1975

Loreal Campbell
University of Technology
Faculty of Law
ground of redundancy. The three dismissed workers, Simon Suckie, Michael Campbell and
Ferron Gordon, had been members of a bargaining unit at the applicants' plant and were
represented by the Union. The IDT had ordered that the employees be reinstated given that their
dismissal was unfair. The company sought an Order of Certiorari to quash the award of the
Industrial Disputes Tribunal on the grounds that:
(i)

The Industrial Disputes Tribunal failed and or neglected to properly construe the
employment (Termination and Redundancy Payments) Act and in particular section 5 of

(ii)

the said Act.

The Industrial Dispute Tribunal failed to appreciate that the Applicant was entitled to
dismiss Messrs. Simon Suckie, Michael Campbell and Ferron Gordon (hereinafter
referred to as the "said employees") in circumstances where the requirements of the
applicant for the said employees of a particular kind or for employees to carry out work
of a particular kind in the place where he was so employed, have ceased or diminished or

(iii)

are expected to cease or diminish.

The Industrial Disputes Tribunal failed to properly construe and or apply the Labour

(iv)

Relations Code.
The Industrial Disputes Tribunal failed to evaluate or to properly evaluate or to give any
weight or any sufficient weight to clause 21 of the Collective Labour Agreement which
expressly permitted the Applicant when making paramount change resulting from the
introduction of new system techniques, machinery or equipment which allows a
reduction of the work force to dismiss the said employees by reason of redundancy.
Amongst other things

Loreal Campbell
University of Technology
Faculty of Law
Jamaica Flour Mill contended that the employees were dismissed pursuant to section 5 of
The Employment (Termination and Redundancy Payments) Act. It was submitted that once an
employer shows that he has observed the provisions of section 5 when dismissing an employee
on the ground of redundancy the question of unfair dismissal or unjustifiable dismissal cannot
properly arise. However it must be noted that the procedure and effects of a redundancy can be
challenged as unfair by a dismissed employee if the redundancy was badly handled and therefore
unfair on general principles. To say that because the employer has complied with section 5(2) of
the Employment Termination and Redundancy Payments Act, there can be no issue of unfair
dismissal or unjustifiable dismissal, is wholly misconceived. There may be grounds for
Redundancy but the manner in which the Redundancy is effected may cause it to be classified as
unfair or unjustifiable dismissal. Section 3(4) of the Labour Relations Code makes it obligatory
for the Tribunal in considering any matter before it, to take into account any provision of the
Code which may be relevant to the issues arising before the Tribunal. It states:
"A failure on the part of any person to observe any provision of a Labour Relations Code
which is for the time being in operation shall not of itself render him liable to any
proceedings; but in any proceedings before the Tribunal or a Board any provision of such
code which appears to the Tribunal or a Board to be relevant to any question arising in
the proceedings shall be taken into account by the Tribunal or Board in determining that
question,"
The Labour Relations Code endorses the principles that work is a social right and
obligation not a commodity, respect and dignity must be accorded to workers, industrial relations

Loreal Campbell
University of Technology
Faculty of Law
should be carried out with the spirit and intent of the Code and that communication and
consultation are essential features. As such these principles should be evident in a Company's
decision to dismiss or make an employee redundant.
In the above case8 although the dismissal was by Redundancy the manner in which the
decision to make the workers redundant contravenes with the Labour Relations code as there was
no consultation between the dismissed employees or their representative .Paragraph 19 of the
Labour Relations Code emphasizes the importance of consultation as a necessary ingredient in
good industrial relations policy.
Failure, to observe the stipulations made by the Labour Relations Code may result in the
Tribunal finding that the dismissal by way of Redundancy was unfair or unjustifiable. In addition
to the aforementioned the Labour relations code also sets out some Disciplinary Procedures that
must be adhered to, it states:
(i) Disciplinary procedures should be agreed between management and worker representatives
and should ensure that fair and effective arrangements exist for dealing with disciplinary matters.
The procedure should be in writing and should:
(a) Specify who has the authority to take various forms of disciplinary action, and ensure
that supervisors do not have the power to dismiss without reference to more senior
management;

Jamaica Flour Mills Ltd v Industrial Disputes Tribunal and the National Workers Union

Loreal Campbell
University of Technology
Faculty of Law
(b) Indicate that the matter giving rise to the disciplinary action be clearly specified and
communicated in writing to the relevant parties;
(c) Give the worker the opportunity to state his case and the right to be accompanied by
his representatives;
(d) Provide for a right of appeal, wherever practicable to a level of management not
previously involved;
(e) Be simple and rapid in operation
(ii) The disciplinary measures taken will depend on the nature of the misconduct. But normally
the procedure should operate as follows:
(a) The first step should be an oral warning, or in the case of more serious misconduct, a
written warning setting out the circumstances;
(b) No worker should be dismissed for a first breach of discipline except in the case of
gross misconduct;
(c) Action on any further misconduct, for example, final warning suspension without pay
or dismissal should be recorded in writing;
(d) Details of any disciplinary action should be given in writing to the worker and to his
representative;

Loreal Campbell
University of Technology
Faculty of Law
(e) No disciplinary action should normally be taken against a delegate until the
circumstances of the case have been discussed with a full-time official of the union
concerned.
The dismissal by the employer is important for unfair dismissal and redundancy payment
claims. A dismissal with proper notice may be lawful under common law concepts of contract
but unjustifiable in the view of a Tribunal as seen in the case of Village Resorts Ltd v. The
Industrial Disputes Tribunal and Another.9 This case emphasized the fact that the word unfair
equates with the word unjustifiable and not with the words unlawful or wrongful.
There are other legislations that can be said to have imposed new standards on the employers
power of dismissal as there are various reasons why an employee may be dismissed that are
automatically unfair. Under the Maternity Leave act 1979 and employee is unfairly dismissed if
the reason for the dismissal was connected with her pregnancy, the birth or the fact that she seek
to take maternity leave. Each employee has a right to a trade union under the Trade Union Act,
therefore dismissal are automatically unfair if they are for the reason that the employee was or
proposed to become a member of an independent trade union or has taken or proposed to take
part at any appropriate time in the activities of the union.
It is also imperative to bear in mind that in a contract of employmet there is an implied term that
the employer will not without reasonable and proper cause conduct himself in a manner
calculated as likely to destroy the relationship of confidence and trust between employer and
employee. Even where the employer has express power to act in a particular way under the terms
9 S.C.C.A No. 66/97 (Unreported)

Loreal Campbell
University of Technology
Faculty of Law
of the contract, he must exercise that power in light of his overall duty of trust and respect with
the result that if he does not do so, the employee may be contractually entitled to leave and claim
constructive dismissal.10
In normal cases, before a person claims unfair dismissal, the tribunal has to establish that the
relationship exists as employer and employee between them, he or she has to have had work
under a contract of service written or oral, express or implied, must comply with age requirement
by the actual date of termination. When it has been established that applicant is an employee and
is not excluded from bringing a claim, 11 the onus of proof moves to the employer to establish the
reason for the dismissal. If the employer cannot prove a reason for dismissal, the dismissal is
therefore unfair. Many employers claim that they are dismissing for reason of redundancy
although this is in reality a cloak to get rid of particular employees. It is for this reason that the
Jamaica legislations have imposed new standard on the employers powers of dismissal. The
reason for dismissal must be that uppermost in the mind of the employer at the time of
dismissal12. The dismissal may however, relate to a series of incidents and not only one
event.13Also where there is more than one ground the tribunal must establish what was the
principal factor motivating the dismissal. 14In Smith v City of Glasgow District Council 15 it was
held by the House of Lords that if an employer fails to satisfy one of the number of reasons that
10

Hogg v Dover College 1990 ICR 39

11 The Institute of Jamaica v The Industrial Disputes Tribunal and Coleen Beecher
12 Simon Honeyball Employment Law 13th edition 2014. Pg 147
13 Turner v Wadham Stringer Commericials (Portsmouth) ltd (1974)

Loreal Campbell
University of Technology
Faculty of Law
it has put forward as the reason for dismissal, the dismissal will be unfair, this makes it difficult
for the employer to use a blunderbuss approach by listing a number of reasons for dismissal in
the hope that some will be proved. 16

14 Carlin v St. Cuthnerts Co-op Association (1974)

15 1987
16 Simon Honeyball Employment Law 13th edition 2014. Pg 148

Loreal Campbell
University of Technology
Faculty of Law

References
Books:
Bowers, J., A Practical Approach to Employment Law, (7th Ed., 2005)
Holland, J. & Burnett, S., Employment Law, LPC Guide 2005
Selwyn, N., Selwyn's Law of Employment, (13th Ed., 2004)
Simon Honeyball Employment Law (13th edition 2014)
Carla-Anne Harris-Roper, Natalie Corthsy Commonwealth Caribbean Employment and Labour
Law 2014

Websites:
Law Teacher Unfair Dismissal [accessed] November 1, 2015 at:
http://www.lawteacher.net/free-law-essays/employment-law/unfair-dismissal.php
McGregor Sherry Ann Dismissing an Employee, June 9, 2014. [Accessed] October 30, 2015 at:
http://jamaica-gleaner.com/gleaner/20140609/flair/flair93.html

Loreal Campbell
University of Technology
Faculty of Law