EDITORIAL - Fairness at work

The report that some local employers are not enamoured of some aspects of the three-year-old Employment Rights Act (ERA2012) is scarcely surprising. For those employers inured to the common law regime where, in the absence of union representation of the worker, the managerial prerogative went largely unchallenged in the workplace, a statute that now purports to subject some employer decisions to the scrutiny of an independent tribunal would not be welcomed with open arms.

One way in which the ERA2012 does this is by conferring on the worker the right not to be dismissed unfairly. Hitherto, the worker was entitled to claim that the termination of his or her employment was unlawful only in circumstances where that termination was in breach of the contract of employment. This would obtain where the worker was not given adequate notice of termination; where he or she was paid an insufficient amount in lieu of notice, where the employer had failed to comply with some contractually required procedure in effecting the termination, or where there had been an unjustified summary dismissal.

Such a state of affairs served to treat the worker and his or her labour as a commodity, to be disposed of at the will of the employer once it complied with the terms of the employment relation. If the employer were not so minded, then it simply paid the worker the amount of the severance payment due to him or her, and that was pretty much that.
No reason for the termination need be given, the worker had no right to be heard in his or her defence and the sole remedy for the unlawfully dismissed employee was an award of damages, benevolently increased from its paltry common law measure by a 1872 amendment to the Severance Payments Act, Cap 355A.

Now, as a consequence of the ERA 2012, the introduction of the concept of unfair dismissal has brought a measure of dignity to the worker’s existence. He or she is no longer dismissible at will, but must be provided with a reason for his or her termination; a reason that may be tested for validity by the tribunal established to hear these claims. Some reasons are prohibited and would result in a dismissal being found automatically unfair. More over, the worker is entitled to a fair procedure of investigation and hearing before termination and the employer has to establish that the option to terminate was a reasonable or not unreasonable one in the circumstances. If the dismissal is adjudged to have been unfair, then it is treated as a nullity and in the appropriate circumstances the worker may be entitled to reinstatement in his or her job.

To be fair, the concerns reported did not directly implicate the fairness of a termination, but related rather to the provision for the expunction of a worker’s infractions after one year without further misconduct of a similar nature and the fact that the Act permits workers to hide behind the phrase, “that is not my job”.

Respectfully, while the first is indeed found in the Act and is in keeping with the theme of fairness by the praxis of progressive discipline, the second is not strictly related to the Act at all, but rather to the terms of the employment contract, a document whose formulation is within the prerogative of the employer.

In any event, the employer is further assisted in this regard by the existence of an implied duty of co-operation on the part of the worker and the employer’s entitlement to vary the terms of the agreement. As Simmons CJ once stated, “But just as not every type of conduct on the part of the employee gives a right to dismiss, so too every change in the employment contract by the employer does not lead inexorably to constructive dismissal…”