Plastic surgery - wrongful dismissal in Barbados after grosvenor v. The advocate Co. Ltd.

• Author: Jeff Cumberbatch
• Position: Senior Lecturer in Law and Head, Teaching Department, Faculty of Law, University of the West Indies, Cave Hill Campus, Barbados
• Pages: 314-335

PLASTIC SURGERY -

WRONGFUL DISMISSAL IN BARBADOS

AFTER GROSVENOR v. THE ADVOCATE CO. LTD.

A COMMENT'

JEFF

CUMBERBATCH**

In

Grofoenor

v.

The Advocate

Co.

Ltd. et al,1 it is stated:

"As was pointed out in Correia's Jewellery Store Ltd. v.

Forde, ...

Barbados Plastics

Ltd. v.

Taylor

was on the facts

correctly decided, but statements made in the course of the

judgment are misleading and should be corrected. It was said

that whether a dismissal is wrong cannot depend on whether

or not notice was given and that where there is no good cause

for the dismissal of

an

employee, he can invoke section 45(1)

[of the Severance Payments Act, 1971] and obtain the benefits

which the Act provides for him.

These statements are misleading because there are

circumstances, in which a servant's employment comes to an

end, which do not give rise to an action for wrongful

dismissal. For instance, a contract may have run its course or

may be determined in accordance with provisions agreed upon

between the parties or otherwise in accordance with law. In

such circumstances the employee cannot claim to have been

wrongfully dismissed, and consequently there would be no

basis for the application of the special assessment provisions

of the subsection".

It may be argued that with these words Williams C.J. and the Court

of Appeal have completed what this writer termed in an earlier

An excerpt from this article was published earlier in (1994) 9

U.W.I,,

Faculty of Law Student Law Review 180.

Senior Lecturer in Law and Head, Teaching Department, Faculty of Law,

University of the West Indies, Cave Hill Campus, Barbados.

1 Civil Appeal No.29 of 1991, Court of Appeal, Barbados (January 24,

1994,

unreported)

comment,1a the "retreat" from the Barbados Plastics definition of

wrongful dismissal in section 45(1) of

the

Severance Payments Act. In

Plastics,2 the Court of Appeal had held that wrongful dismissal as

used in that subsection signified dismissal without good cause rather

than its usual common law meaning of dismissal in breach of

contract.3 However, later in Forde4 the Court of Appeal resolved a

case with similar facts to

Plastics,

not on the ground that the dismissal

was wrongful because it was without just cause, but on the basis that

the payment given mere in lieu of notice was inadequate. This latter

ratio decidendi mirrored that of Douglas C.J. at first instance in

Plastics,5 an opinion which was scarcely commented on at the Court

of Appeal level. Now, in

Grosvenor,

the Court of Appeal appears to

suggest that the wrongfulness of a dismissal is to be determined by

common law principles, a development which effectively controverts

the court's reasoning in Plastics.

At the same time, however, one must be extremely careful not to be

too emphatic in this assertion, given the cryptic nature of

the

comments

cited above. In the first place, Williams C.J prefers to describe his

earlier dicta in Plastics as "misleading" rather than "wrong". This

perhaps semantic distinction apart, Williams C.J. offered

two

examples

of non-wrongful dismissal; one, expiry of a fixed term contract and

two,

where the contract of employment is "determined in accordance

with provisions agreed upon between the parties or otherwise in

accordance with law." Little difficulty is posed by the first instance;

indeed, it might be argued that in such a case there is no dismissal at

all.6

With regard to the second instance, the Chief Justice appeared

1a See n.13, infra.

2 (1981) 16 Bart). L.R. 79.

3

Ibid.,

81 per Williams C.J. (Ag.) - "... Whether a dismissal is wrong

cannot depend on whether or not notice has been given ...." and further

"... where there is no good cause for the dismissal of the employee he can

invoke section 45(1)..."

4 Court of Appeal, Barbados (December 9, 1992, unreported).

5 See (1981) 16 Barb. L.R. 79, 80 (per Douglas C.J.) -"... the dismissal was

wrongful, the tender was wrong in quantum and the plaintiff was entitled

to reject it."

6 See, however, section 16(l)(b) of the Severance Payments Act, Cap 355A

(Laws of Barbados, 1976) which provides that an employee shall be

deemed to be dismissed by his employer for the purposes of the Act if,

where he is employed under a fixed term contract, "that term expires