1. Whether the Employment Tribunal was wrong to refuse to adjourn the hearing of a complaint pending the outcome of a criminal investigation into the employee’s conduct; and

2. Whether the decision of the Employment Tribunal was wrong.

Background

The Island Construction v Phillips judgment does not go into the full factual matrix of the employee’s conduct. However, there is enough information in the judgment to discern that the relevant employees were summarily dismissed by Island Construction as a result of conduct Island Construction determined to be serious misconduct warranting summary dismissal.

The employees lodged a complaint of unfair dismissal with the Employment Tribunal. A criminal complaint was commenced and had not concluded by the time of the Tribunal hearing. Island construction requested that the Tribunal hearing be adjourned (postponed) pending the outcome of the criminal investigation. The Tribunal refused to adjourn/postpone the hearing, which went ahead. At the hearing, the Tribunal ruled against Island Construction, who had not appeared to defend against the unfair dismissal complaint.

Island Construction appealed arguing that the Tribunal was wrong to refuse to adjourn the hearing and that, in any event, the Tribunal’s decision was wrong in law.

Decision of the Court

The Honorable Mrs. Justice Subair-Williams struck-out Island Construction’s appeal of the decision not to adjourn the hearing and also dismissed Island Construction’s appeal of the Tribunal’s decision. The judgment highlighted the following, which are, in our view, the key take homes for any employer considering a potential dismissal:

1. It is important that employers take the opportunity to attend and respond to the complaint at the Tribunal Hearing:

“25. Having relinquished the opportunity to appear and having willfully absented from the full hearing which followed, it is hardly open to the Appellants to now complain that they were deprived of a fair hearing based on an adjournment refusal. To do so, in my judgment, would amount to an abuse of process.”

2. Where an employee complains of unfair dismissal, the Employer has the burden of proving that the dismissal was justified.

3. Proper internal investigations were highlighted as the Court ruled against part of Island Construction’s appeal on the basis that it had failed to give the employees the opportunity to respond to the allegations prior to termination.

4. It was open to the Tribunal to reasonably find that the case for summary dismissal had not been made out and that the Respondents had been unfairly dismissed.

Employers should seek legal advice when considering the summary dismissal of an employee. Missteps at any stage could prove costly at any Tribunal hearing.

Type

Insight

Locations

Bermuda

Share
Twitter LinkedIn Email Save as PDF
More Publications
10 Dec 2019 |

The Insolvency Review – Seventh Edition

The seventh edition of The Insolvency Review  offers an in-depth review of market conditions and in...

5 Dec 2019 |

BMA forms view on cannabis related risk

The Bermuda Monetary Authority has confirmed that it will not object to BMA-supervised entities cond...

2 Dec 2019 |

Implications of the Privy Council’s decision in the ‘belonger’ case

Bermuda’s final appeals court has handed down its decision in a long-running case which had the po...

21 Nov 2019 |

BMA releases guidance on outsourcing

For many companies, outsourcing is essential in allowing them to cost effectively and efficiently pr...

15 Nov 2019 |

New Family leave rights on horizon

Working families will benefit from more generous leave entitlements in the New Year. When it comes i...

31 Oct 2019 |

What to expect from the new Wage Commission

A Wage Commission is to be established under recent legislation, in a step which may lead to a minim...

25 Oct 2019 |

Reinsurers optimistic about market outlook

Optimism is high in the reinsurance industry this year, according to Brad Adderley, partner at offsh...

24 Oct 2019 |

Bermuda responding to needs of fintech industry

Bermuda’s emergence as the offshore jurisdiction of choice for fintech companies seeking to operat...

11 Oct 2019 |

Purpose-built ISAC a boon for Bermuda

The long-awaited Incorporated Segregated Accounts Companies Act 2019 was tabled in the House of Asse...

3 Oct 2019 |

Maternity/Paternity Leave – Anticipated Amendments to the Employment Act

The Employment (Maternity Leave Extension and Paternity Leave) Amendment Act 2019 (Bill) (2019 Amend...