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.

Share
X.com LinkedIn Email Save as PDF
More Publications
050-Insolvency-Restructuring-Grid-Image
15 Oct 2024

Insolvency: Bermuda

In-Depth: Insolvency (formerly The Insolvency Review) offers an incisive review of the most conseque...

Appleby-Website-Insurance-and-Reinsurance
10 Oct 2024

Recovery planning for commercial insurers

New rules released by the Bermuda Monetary Authority aim to equip certain insurers with a structured...

The Global Website header
7 Oct 2024

The Global – your offshore corporate law questions answered: October 2024

The Global is a quarterly collection of corporate expert insights and analysis across Appleby's glob...

Brad Adderley, Bermuda Managing Partner at Appleby, will speak at the 2022 Society of Actuaries (SOA) Life Meeting on 23-26 August in Chicago.
2 Oct 2024

Bermuda: It’s Impressive How Mainstream Cat Bonds Have Become

Although Brad Adderley, Bermuda Managing partner at Appleby, doesn’t expect 2024 to be another rec...

Appleby-Website-Private-Client-and-Trusts-Practice
26 Sep 2024

Private Wealth and Private Client: Bermuda

In-Depth: Private Wealth and Private Client (formerly The Private Wealth & Private Client Review) pr...

Technology and Innovation
26 Sep 2024

Augmented Advocacy Series (Bermuda): The Practice of Law in the Age of AI

As the world enters the age of artificial intelligence, the legal profession is once again faced wit...

Private Client Trusts
12 Sep 2024

Mental health and estate planning

The demographic shift towards an ageing population in Bermuda raises important matters that should b...

Appleby-Website-Insurance-and-Reinsurance
10 Sep 2024

Navigating the hard market for a new era

Discipline must remain amid worries over casualty if investors are to believe in the industry long t...

Corporate
29 Aug 2024

ISACs in Bermuda: An innovative option for business owners

Bermuda’s well-earned reputation as a pre-eminent offshore financial centre is due in part to its ...