List of Trials – October 2019 for Justice Nicola P. Byer
The purpose of today’s media launch is to sensitize the media, generate public interest and heighten the public’s understanding of the Court’s connected mediation programme and its associated benefits in the Commonwealth of Dominica.
Court of Sitting
28th October to 1st November 2019
In this corner we highlight the cases of interest for your reading pleasure
Court of Appeal rules that employers must act reasonably in dismissing employees for redundancy.
In Cable & Wireless (Antigua & Barbuda) Ltd v Antigua & Barbuda Workers’ Union, this Court considered whether an employer is required to prove that it acted reasonably within meaning of section C58(2) of the Labour Code of Antigua & Barbuda (“the Labour Code”) in dismissing an employee for redundancy.
The Court held that in determining this issue, it was pertinent to examine whether sections C58(1) and (2) should be read conjointly. Section C58(1) provides that a dismissal shall not be unfair if the reason assigned by the employer falls within subsection (1)(a) – (e) and there was a factual basis for the reason assigned; one such reason being dismissal for redundancy. Section C58(2) states that the test for determining the fairness of a dismissal is whether or not the employer acted reasonably in the circumstances. However, even if the employer did act reasonably but was mistaken as to the factual circumstances for dismissal, the test now becomes whether if the employer knew of the actual circumstances, it would have reasonably led to the employee’s dismissal.
The Court also examined section 57 of the UK Employment Protection (Consolidation) Act 1978 which expressly states in subsection (3) that in determining whether a dismissal was fair or not, the employer must fulfill the requirements of subsection (1). This suggests that the provisions must be read conjunctively.
In making its determination, the Court looked at other provisions in the Labour Code, particularly sections C56 and C57. Section C56 grants every employee who completed the probationary period the right not to be unfairly dismissed. Section C57 expressly states when the dismissal will be automatically unfair. The Court noted that if the legislature wanted to make dismissal for redundancy or any other reason listed in subsection (1)(a) – (e) automatically fair, then it would have included them in section C57. The Court held that this difference in treatment clearly showed that subsections C58(1) and (2) must be read together.
In concluding, the Court found that in considering whether an employee has been unfairly dismissed, the Industrial Court is required to address: (i) the reason assigned by the employer for the dismissal; (ii) whether the reason assigned by the employer falls within subsection (1) (a) – (e); (iii) whether there is a factual basis to substantiate the reason for dismissal; and (iv) whether the employer acted reasonably in dismissing the employee having regard to the actual circumstances.