Implementing the Employment Act 2000

Juliana M. Snelling · April 1^st, 2002

The Remedy of Reinstatement

By far the most controversial aspect of the Employment Act is the remedy of reinstatement which the Employment Tribunal may award for unfair dismissal. The Tribunal may order that an employee be treated as though he had never been dismissed in the event that his complaint of unfair dismissal is upheld. This remedy may have negative implications on Bermuda’s international business.

Juliana Snelling, a Partner at MJM and Bermuda Representative to the Employment Law Alliance, an international body of lawyers practising employment and labour law, states:

bq. “Many in Bermuda consider the remedy of reinstatement to be overly invasive and too onerous for smaller businesses that depend on each and every member of their staff in order to survive in a competitive market place.

In countries where jobs are scarce and the workforce is largely unskilled, legislated reinstatement is justified. This is not the case in Bermuda.

Even in industrialised nations where similar provisions apply, this power is seldom used because it is recognised that it can impose on both parties a highly undesirable result.

The practical implication will be that employers will pay more to encourage a settlement rather than face the possibility of reinstatement”.

Five Major Ways the Act will Affect your Business:

Minimum standards of employment will have to be met for all employees working over 15 hours per week.
Statement of Employment and Itemised Pay Statement must be provided to every employee.
The Inspector: Inspectors may now investigate suspected contraventions of the Act.
The Employment Tribunal: cases which are not settled by internal grievance procedures or the Inspector will be referred to the new Employment Tribunal which has wide powers of enforcement.
Termination of Employment will have to be for valid reasons and done in accordance with the provisions of the Act.

Improving Conditions of Employment

The provisions of the Employment Act 2000 (the “Act”) are intended to ensure the promotion of fair treatment, equal opportunity and the benefit of competition in the employment sector. The Act provides minimum standards of employment and the means to enforce these new standards with the creation of Inspectors and the Employment Tribunal.

The Act sets out a number of basic conditions of employment beginning with the Statement of Employment which ensures that both employer and employee are fully aware of and have agreed on the basic terms and conditions of the employment contract. The Statement must be signed by both parties and must contain all of the particulars required by section 6 of the Act. The Statement of Employment must be provided to the employee no later than one week after commencing employment. Copies of all documents to which the Statement refers must be given to the employee.

The Act also provides for the following:

Mandatory written itemised pay statements;
Prohibition of unauthorised deductions;
A minimum overtime pay rate of 1½ the normal hourly wage for hours worked in excess of 40 hours (subject to exceptions);
Mandatory provision of a consecutive 24 hour rest period each week;
Provision and pay structure for public holidays, annual vacations and leave for public duties, illness, bereavement and pregnancy;
Conditions for termination and the notice periods required;
Conditions under which severance allowance is payable;
The nature of disciplinary action which an employer can take;
Summary dismissal for serious misconduct;
Termination for repeated misconduct, unsatisfactory performance, redundancy and lay off;
Conditions for unfair and constructive dismissal;
The employee’s status on the winding up or sale of the business; and
The provision of a Termination Certificate upon request.

The Act’s requirements are meant to supplement existing contracts of employment including collective bargaining agreements. Where there are existing agreements in place which are more favourable that the minimum standards mandated by the Act, then the existing terms will remain obligatory upon the employer. Under no circumstances should an employer seek to reduce their employees benefits in order to meet the minimum standards provided under the Act. All employers should review their current practices and policies to ensure that they are meeting the minimum conditions of employment required under the Act.

Internal Grievance Procedure

Ensuring that your business does not become the subject of an investigation by an Inspector or a hearing before the Employment Tribunal may be as simple as providing adequate grievance procedures within your organisation. Employees and their representatives or unions are entitled to have their grievances alleging non-compliance heard and investigated by an Inspector. The complaint must be made within 3 months of the alleged breach. All internal grievance procedures must first be exhausted before an Inspector will intervene. Inspectors have wide powers to request and copy documents for the purpose of their investigation. Should the Inspector fail to resolve a complaint which he considers valid, he may refer the matter on to the new Employment Tribunal (the “Tribunal”).

The Tribunal will conduct hearings into alleged contraventions of the Act and produce written determinations to the parties. The Orders of the Tribunal are binding on the parties, subject to appeals to the Supreme Court which must be lodged within 21 days after receipt of the notice of the determination. Appeals are allowed on points of law only, not on the merits of the decision.

The Tribunal can order that the employer take such action so as to bring the Company within compliance of the Act. It may also require that wages or other benefits are extended to an aggrieved employee.

The Tribunal also may award an employee found to be unfairly dismissed the remedy of an order for reinstatement, an order for reengagement (in comparable work) or it may make a compensation order.

Although the Tribunal must consider the wishes of the parties before considering reinstatement or re-engagement and the conduct of the employee in particular, the Tribunal is not obliged to rule in accordance with the wishes of the parties.

Failure to produce documents to an Inspector or the supply of false documents or failure to comply with an Order of the Tribunal is an offence punishable by a $10,000 fine on summary conviction.

It is vital that you establish and maintain good communications with your employees and provide them with fair and adequate opportunities to air grievances in a constructive and non-threatening environment.