Undue process in unjustifiable dismissal

Business

Undue process in unjustifiable dismissal

Legal Notes

With Matthew Royal

Wednesday, October 21, 2020

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Last week, Amy Cooper appeared in the Manhattan Criminal Court following an incident in May where she was videotaped making a false report to the police that an African American man was threatening her life in Central Park.

In fact, all the man did was ask her to put her dog on a leash in an area where that was required. Within days of the video going viral, Cooper was fired by her Wall Street investment firm, where she had been a senior manager. Despite the irrefutable evidence of racism, a quick and clean dismissal like that could have serious legal repercussions in Jamaica.

In Jamaica, our Labour Relations Code sets out what is commonly called “due process” requirements. The code requires employers to inform the accused employee in writing of the specific accusations, give the employee the opportunity to state his or her case, and allow the employee to be accompanied by a representative to a disciplinary hearing.

Local cases go even further to say that the employee should be given adequate time to retain an attorney, if they wish. They should be given all the evidence against them and a reasonable amount of time to prepare their defence — often while the employee is on paid leave of absence pending the hearing.

In some cases, the employer has been required to give the employee an opportunity to confront his or her accuser, which could mean subjecting an already aggrieved customer or client to reliving the embarrassing ordeal. The employee must also be given the right to appeal any adverse decisions made at the hearing. Basically, the workplace becomes a mock court room or more precisely, a bad episode of Law & Order.

In its 44 years of existence, the Industrial Disputes Tribunal (IDT) has almost never ruled in favour of an employer who has fired an employee for cause without strict adherence to the code and the unwritten and ever-evolving rules of natural justice. The most the IDT has done is to reduce the amount of money it will award to the guilty employee.

There is no doubt that the procedures outlined in the code aid in creating a fairer and equitable work environment for employees by protecting them from the uncertainties that would arise from at-will dismissals. These procedures exist to ensure that employees are only dismissed when there is a good reason for firing them. It stands to reason, then, that, where that reason is blatantly obvious, strict adherence to process ought not to be necessary.

The consequences of this strict approach on employers can be stark. Small and medium-sized businesses arguably bear the heaviest burden. Quite often, the business owner may themselves be the only management level officer in the company. This makes it very difficult to comply with the requirement to have hearings chaired by an impartial third party. The employer may need to retain, at a cost, outside personnel to chair the hearing and the appeal which may arise from it. The small business rarely ever has a human resources or industrial relations specialist to guide it through the forensic process required by the IDT. Due to their lack of expertise in the area, they are likely to make errors in their processes, which would cause the IDT to deem the dismissal unjustifiable.

All this may be worth it in those cases where it may not be clear whether the employee has committed the breach of which they are accused. However, to strictly maintain these requirements, regardless of the merits of the case, may indeed be an undue burden to employers.

With all the difficulties posed by the IDT's approach, you may be surprised to learn that there is nothing in the code itself that requires the IDT to be so dogmatic. In fact, the code says that “an infringement of the code does not of itself render anyone liable to legal proceedings, however, its provisions may be relevant in deciding any question before a tribunal or board”.

A failure to comply strictly with the terms of the code does not compel a decision that a termination, which flows from a faulty process, is inherently bad. The IDT could, if it wished, find that the egregious and obvious nature of the offence outweighed any procedural flaws committed by the employer.

As long as the IDT's approach remains as it is, employers should make every effort to dot all the i's and cross all the t's in their disciplinary processes. They may benefit from the guidance of experienced labour lawyers in drafting disciplinary policies and procedures and initiating disciplinary action.

Matthew Royal is an associate at Myers, Fletcher & Gordon, and is a member of the firm's Litigation Department. Matthew may be contacted via matthew.royal@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.


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