Dismissal by an employer may be a lawful act, however, in some instances, the dismissal may not have complied with legal requirements and may have resulted in unfair or wrongful dismissal. Although the two terms seem similar, they are two distinct legal principles and their operation to a person’s dismissal is dependent on the facts of a person’s case. This article briefly explores some differences between unfair and wrongful dismissals below:
The meaning of unfair and wrongful dismissal
In some jurisdictions, statute provides that employees have a right to not be unfairly dismissed. In Trinidad and Tobago, whilst the words “unfair dismissal” are not found in our statue, section 10(5) of the Industrial Relations Act Chapter 88:01 (“IRA”) provides that the Industrial Court (“IC”) has certain powers when employees are dismissed by “harsh and oppressive” means, or, “not in accordance with the principles of good industrial relations practice”. This subsection has been held to be the same as unfair dismissal (as per Justice Mohammed in the local case CV2018-02079 Kafi Yearwood Williams v Hummingbird Helicopter Services Limited (HHSL) Safety Systems).
In considering whether someone was unfairly dismissed, the IC considers the circumstances surrounding the dismissal of a worker and decides on, among other things, whether the dismissal was fair and/or unreasonable and/or whether the principles of natural justice were followed before the dismissal of the employee. The principles of natural justice include, among others, the right to be heard by an unbiased tribunal, the duty to act fairly, and the right to reasons for a decision.
In contrast, wrongful dismissal is derived from the common law and can arise where the employer dismisses an employee in breach of an expressed or implied term of an employment contract.
Unlike unfair dismissal, wrongful dismissal does not consider any of the factors that unfair dismissal considers such as the fairness and/or reasonableness of the dismissal, but rather, whether there was a breach of the employment contract.
Where can claims for Unfair and Wrongful Dismissal be heard?
Unfair dismissals must be strictly heard by the IC whereas claims for wrongful dismissals are only heard by the High Court of Trinidad and Tobago. Notably, the IC is a specialized court which was specifically created and given certain powers to determine certain trade disputes which includes, unfair dismissal but not wrongful dismissal.
Limitation Periods
Unfair dismissals (i.e. trade disputes) must be reported to the Minister of Labour within 6 months of the date of being dismissed - Section 51(3) of IRA. This section also provides for an extension of this period if it is just to do so.
For claims for wrongful dismissal however, the claim must be made prior to the expiration of four years from the date of dismissal.
Who can claim for unfair dismissal and wrongful dismissal?
Claims for unfair dismissal can only be made by employees who are “workers” as defined by section 2 of the IRA. This definition includes (but is not limited to) persons who have entered into a contract (expressed or implied) to do skilled, unskilled, manual or clerical work and dismissed persons. This section also excludes persons from the definition of a worker, such as a police officer, a member of the teaching service or a person responsible for the formulation of policy in an organization. This is not an exhaustive list of persons who are workers.
The Registration Recognition and Certification Board (created by the IRA) is charged with the responsibility to determine whether a person is a worker in accordance with the IRA.
Notably, there is a statutory process for a worker to make a claim for unfair dismissal. However, the law regarding this process is not discussed in this article.
In contrast, a claim for wrongful dismissal can be made by any employee (preferably through their Attorney-at-Law) by filing a claim at the High Court of Justice.
Redress for Unfair and Wrongful Dismissal
If the IC determines that a worker has been unfairly dismissed, then it has certain powers to treat with the employer’s unfair dismissal. In accordance with Section 10 of the IRA, the IC may order that an employee be re-employed or reinstated or that the employer pays compensation or damages (inclusive of exemplary damages) to the employee. In making an award for compensation or damages, the IC makes an assessment that is, in its opinion, fair and appropriate.
In claims for wrongful dismissal however, the High Court does not have similar powers like the IC. If wrongful dismissal is found, then the High Court may make an award of damages (inclusive of aggravated and/or exemplary damages) for the employer to pay the employee.
The measure of damages for wrongful dismissal is usually, the amount that the dismissed employee would have earned if the contract of employment continued without wrongful dismissal, less the amount that the dismissed employee obtained or should have obtained by alternative employment. In addition to the foregoing damages, the High Court may award other types of damages such as exemplary damages. This type of damages is awarded where, among other things, the employer’s conduct was arrogant, cynical, vindictive or malicious.
In short, the amount and type of award (compensation) differs based on the type of claim for dismissal made and at which court the claim is made.
If a dismissed person is of the opinion that their dismissal was wrongful or unfair, they should seek legal advice.
Submitted by:
Christoff Bissoon
Legal Officer
Civil Legal Department
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port of Spain.
Contact: 638-5222
Email:
Website: www.laaa.org.tt
This article is not legal advice. Consult an Attorney for legal issues.
