THERE may be some relief for workers on fixed-term contracts who have been found to be unjustifiably dismissed, but whose contract expired before the Industrial Disputes Tribunal (IDT), to which the cases are usually referred, hands down a ruling.

In a recent case involving UC Rusal and the Union of Clerical Administrative and Supervisory Employees (UCASE) over the termination of a worker, Paul Brown, the IDT said that “while the Jamaican legislation does not yet provide a legal framework to curtail the abuse of recurring fixed-term employment contracts”, common law rulings would, however, entitle it to arrive at a conclusion about the renewal of Brown’s contract on the factual evidence that he has had, “successive fixed-term contracts over an extended period spawning more than 10 years, and no evidence of poor performance or previous disciplinary action against him was offered to counter the assertion that he was a good and faithful employee”.

The panel, chaired by Donald “Danny” Roberts, and consisting of Errol Beckford and Dr Denese Morrison, argued that the International Labour Organisation, through its Recommendation 1982, No 166, has encouraged member states to provide a legal framework at preventing the abusive recourse to fixed-term contracts by, “limiting recourse to contract for a specified period of time to cases in which, owing either to the nature of the work, or to the circumstances under which it is to be effected or to the interests of the worker, the employment relationship cannot be of an indeterminate duration”.

The IDT noted that in “the United Kingdom an employee automatically becomes a permanent employee after four years of continuous fixed-term employment unless the employer can justify not doing so”, and that under Russian Employment Law, “the extension or renewal of fixed-term contracts justifies the possibility of having it categorised as open-ended”.

Also in a Jamaican case involving Clayton Powell v IDT and Montego Bay Marine Park Trust, the panel noted the ruling that the Labour Relations and Industrial Disputes Act “empowers the tribunal to reinstate an employee where his dismissal was unjustifiable, and that, “it is purely within the discretion of the IDT” to determinate if the circumstance of the case warranted reinstatement.

In its conclusion, the IDT said that in examining the circumstances, context and background to the case, it felt obliged, “to exercise our discretion in favour of reinstatement. There is, from the evidence, a legitimate expectation that Mr Brown’s contract would have been renewed, and no evidence was led otherwise”.

Brown had his services terminated by UC Rusal on November 22, 2022 for allegedly attempting to remove scrap metal from the compound of the port without authorisation.

The decision to dismiss him, however, was not in keeping with the recommendation of the company’s disciplinary committee which concluded that he should be given a written warning.

However, the company’s director of human resources told the tribunal that “the disciplinary panel can only recommend, and it is the management’s responsibility to decide whether those recommendations should be accepted”.

The panel, while acknowledging the right of management to decide whether to accept its disciplinary panel’s recommendation, noted that “even where this is so, the hubris of management must be deferential to notions of equity, fairness and the substantial merits of the case”.

The panel said: “It would have been fair, in our view, if the management had instituted an internal review process to examine the recommendation of the disciplinary panel. Where it believed it had the right to act unilaterally, then the right to do so must be evident in the provisions of the disciplinary code and procedure or the collective agreement”.

The IDT added: “Where there is no provision for the substitution of the disciplinary sanction, the company’s decision to dismiss raises questions regarding the applicability of the double jeopardy’ principle”.

The tribunal concluded that at the very least Brown should have been given the opportunity to hear the company’s argument as to why it could not accept the recommendation of the disciplinary panel.

The IDT ruled that Brown’s dismissal was unjustified and that he be reinstated and paid all outstanding wages (excluding travel allowance) from the date of his termination to the date of his reinstatement, and in the event that he is not reinstated, he should be paid an additional of $3.5 million as relief.

Brown has since been reinstated.

Vincent Morrison, president of UCASE, who along with two union delegates and a union organiser represented Brown before the IDT said the company had failed to provide evidence to prove that he attempted to remove scrap metal from premises at Port Esquivel.

Morrison provided evidence that vehicles were regularly used by other employees and that the key to vehicle Brown was driving at the time was not kept 0r controlled by him during the day.

UC Rusal, however, contended in its submission, that Brown’s dismissal was a fair one, in keeping with judgments of previous court cases involving other companies.