Dismissal

Ending the employment relationship

If there is an employment relationship there will be a contract of employment. 

If a worker wants to end the employment relationship:

If an employer wants to end the employment relationship:

Whenever a worker's employment is terminated, ask yourself these questions:

"Proper procedures" will raise the linked issues of:

Good Industrial Relations Practice

Employers have to follow “good industrial relations practice” which is:

Examples of how the Industrial Court develops case law on good industrial relations practice can be seen from the following extracts from Industrial Court judgements:


"Save in the exceptional cases of dishonesty, violence and extreme negligence with a present danger to life and limb, the principle of progressive disciplinary action should be observed." 

Oilfields Workers' Trade Union AND Phoenix Park Gas Processors Limited (T.D. 144 of 1996)


"More typically, however, good industrial relations practice requires that the response to unsatisfactory performance should be by way of progressive disciplinary action." 

Oilfields Workers' Trade Union AND Trinidad and Tobago Electricity Commission (ESD TD 20 of 1996)


"that natural justice requires not merely that a man should have a chance to state his case, but that he must know sufficiently what is being said against him so that he could put forward his own case properly and that he should be given an opportunity to cross-examine his witnesses who gave evidence against him." 

All Trinidad Sugar and General Workers' Trade Union AND Caroni (1975) Limited (I.C.R. 47 referred to in TD 162/1996)

Natural Justice

The cornerstone of "good industrial relations practice" is the general concept of "natural justice" which is a "duty to act fairly". The key elements of natural justice are:

You must be must be told of the allegations against you

You must be told in detail in advance of any hearing what the allegation is you have to answer. 

This information should be given to you far enough in advance of any hearing to give you an opportunity to prepare a defence, seeks advice and get representation. If the employer gives you a letter on Friday for a hearing the following Monday that is not good enough ... ask for an adjournment to another day.

The more serious the allegation, the more time you need to prepare. 

You employer should also provided you with copies of all the evidence and witness statements that are to be used in the hearing in advance of any hearing.

You have the right of representation

You have the right to be represented by a trade union.

There should be an impartial and unbiased hearing

A hearing cannot be impartial and unbiased if the person who did the investigation is also part of the decision making body. They've already 95% made up their minds otherwise they would not have recommended that a disciplinary hearing is necessary!

You have the right to be heard

A decision to dismiss you should not be taken without hearing your side of the story. 

That doesn't mean you can stop the process by simply not turning up. If an employer has followed all the proper procedures, they can take a decision in your absence if you just opt out of the proceedings. 

If you genuinely have a problem with a hearing date, ask for an adjournment in plenty of time. 

You have the right to face your accuser

You should be able to ask questions of anyone who is giving evidence in your disciplinary hearing. If a witness has written a statement for the employer, you have the right to ask that person questions about what they have said.

International Labour Organization

The International Labour Organization is the UN specialised agency which seeks the promotion of social justice and internationally recognised human and labour rights. The ILO operates through Conventions and Recommendations are drawn up by representatives of governments, employers and workers at the ILO's Annual Conference. 

ILO Conventions are recognised as being internationally accepted examples of good industrial relations practice.

When it comes to dismissals, Article 4 of the ILO Termination of Employment Convention (C158) is particularly useful in clarifying the three areas that can be the basis for terminating an employment. In full, the article says:

"The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service."

Article 7 of the same Convention sets out the importance of natural justice:

"The employment of a worker shall not be terminated for reasons related to the worker's conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity."

The ILO has an online database of all Conventions and Recommendations. 

Wrongful dismissal versus unfair dismissal

Wrongful dismissal and unfair dismissal are often used interchangeably but are two entirely different concepts. 

Wrongful Dismissal

A wrongful dismissal is a dismissal in breach of contract and the only relevant considerations for a court or tribunal hearing such a claim will be the contractual obligations of the employer. 

Unfair Dismissal

The right not to be dismissed unfairly, on the other hand, is a statutory rather than a contractual right. The determination of whether a dismissal is fair or unfair is dependent on whether the employer followed good industrial relations practice.