Redundancy in the context of unfair dismissal- a comparative analysis of the antigua model

• Author: Rose-Marie Belle Antoine
• Position: Lecturer at the Faculty of Law, University of the West Indies, Barbados, and an Attomey-at-Law
• Pages: 412-428

NOTES AND COMMENTS

REDUNDANCY IN THE CONTEXT OF UNFAIR

DISMISSAL - A COMPARATIVE ANALYSIS OF

THE ANTIGUA MODEL

ROSE-MARIE BELLE ANTOINE*

Under the common law, the concepts of wrongful dismissal,

summary dismissal1 and other contractual concepts of termination of

employment, offered little real protection to the employee, for no

attempt was made to protect the employment relationship by ensuring

that reasons promulgated for dismissal be just or valid. It was the

harshness of the common law in this regard which provided the

impetus for the advent of unfair dismissal legislation seeking to protect

the right of the employee to remain employed unless the employer

could demonstrate that there was a good reason for dismissing him.

The common law presumption of "dismissal at pleasure," albeit with

the required notice, was therefore reversed with the arrival of the

unfair dismissal concept. Further, contractual concepts, such as

repudiation of the contract of employment, assumed less significance.

With unfair dismissal, there is a general presumption of a right to

work which coexists with the presumption that all dismissals are unfair,

unless proven otherwise. This legislative presumption displaces the

converse common law presumption, embodied and exemplified in the

concept of wrongful dismissal, that dismissals are fair provided

adequate notice be given. Unlike the common law position, therefore,

the issue of notice, although important, is not at all conclusive in

assessing the correctness of a dismissal, or that the dismissed employee

has been treated fairly.

Unfair Dismissal Regulation

in the

Caribbean

The legislative phenomenon of unfair dismissal is neither well-known

nor as yet accepted in most Commonwealth Caribbean

jurisdictions.

At

present, only the jurisdictions of Antigua and Barbuda, and St. Vincent

and the Grenadines have enacted unfair dismissal legislation in the form

Lecturer at the Faculty of Law, University of the West Indies, Barbados,

and an Attomey-at-Law. The author would like to thank Simeon Mcintosh

who read a draft of this article and made several helpful comments.

1 Dismissal without notice, justified on the grounds of gross misconduct.

of a broad statement of

policy.

The relevant legislative provisions are

found under the Antigua Labour Code2 (hereinafter called the 'Labour

Code') and the 'Protection of Employment Act3 of St. Vincent." It

should be noted that the Antigua Labour Code is a legislative code and

not a code of Industrial relations principles.

The notion of unfair dismissal is embodied in a more restrictive

sense in Dominica, under the Protection of Employment Act;4 in

Montserrat, under the Employment Ordinance;5 and in St. Christopher

and Nevis. These latter jurisdictions merely list categories of unfair

dismissals, for example, discrimination on the grounds of

race

or trade

union membership. There is therefore no general presumption that all

dismissals are unfair, and it is clear that the legislative intention is that

only such grounds as are listed will be specifically protected.

Under C58 of the Antiguan Labour Code, it is stated mat every

employee whose probationary period with an employer has ended:

"shall have the right not to be unfairly dismissed." Further:

"A dismissal shall not be unfair if the reason assigned

by the employer therefor - ... (c) is that the employee was

redundant"6 (my emphasis)

There are provisions in the other jurisdictions of the Commonwealth

Caribbean which can be judicially expanded or interpreted to

incorporate the concept of unfair dismissal either indirectly or directly,

but this- is not explicitly stated in the legislation, and does not offer

such broad protection as that of Antigua, St. Vincent, or even

Dominica, Montserrat or St. Kitts. Such provisions cannot define the

term 'unfair dismissal' within its technical and all-encompassing

meaning. For example, the notion of dismissal for 'just cause' is

enshrined under the Industrial Relations Act of Trinidad and Tobago.

The concept of an unfair dismissal was also given life by way of an

expansion of the severance pay provision as illustrated in the case of

Barbados Plastics v. Taylor1 of Barbados, where the concept of

wrongful dismissal was interpreted more liberally than under the

common law's traditional meaning, to give effect to the idea of an

2 Division

C.

Part 5.

3

See

3.(1) Part II Act

no.16

of

1980.

4 Actno.l of

1977.

5 No.l9 of l976.

6

See

Part

5

of

the

Antigua Labour

Code,

s.c.60, para.(c).

7 Civil Appeal

No.7

of

1978,

decided March

1981

(S.C.)

Barbados,

79.