FREQUENTLY ASKED QUESTIONS
Questions on Employment Law
Q: Can an employee be terminated without any cause or explanation?
Yes, any employee can be terminated without an explanation. Part VII of the Employment Act makes minimum provisions for Notice Pay where an employee purports to provide no explanation for terminating an employee.
Q: “All along, I had received five weeks vacation, but ever since this law came into force, my vacation has been reduced to two and a half weeks. Is this right?”
Part 1, Section 4 provides that any greater rights or benefits that an employee may have enjoyed prior to the passing of this Act, should continue. In no way, shape or form is this Act intended to restrict or limit the negotiation or conferment of greater rights or better benefits.
Q: Is Discrimination covered under the Employment Act?
Yes, it is. Section 6 of the Employment Act provides:
No employer or person acting on behalf of the employer shall discriminate against an employee or applicant for employment on the basis of race, creed, sex, marital status, political opinion, age or HIV/AIDS.
Q: Is there a difference in Notice Pay for Managers and non-managers?
Yes there is. Section 29 of the Employment Act 2001 makes provision, where the employee has been engaged for six months or more, but less than twelve months for:
i) one week’s notice or one weeks basic pay in lieu of notice; and
ii) one week’s basic pay (or a part thereof on a pro rata basis) for the said period between six months and 12 months.
Where an employee has been employed for twelve months or more –
i) two weeks notice or two weeks basic pay in lieu of notice; and
ii) two weeks’ basic pay (or a part thereof on a prop rata basis) for each year up to twenty-four weeks’
Where the employee holds a supervisory or managerial position –
i) One month’s notice or one month’s basic pay in lieu of notice’ and
ii) One month’s basic pay (or a part thereof on a pro rata basis) for each year up to forty-eight weeks.
Q: Is an employee required to give notice to his employer?
Yes, he is. Section 29 (2), provides thus:
An employee shall not terminate his employment until after the expiry of
(a) two weeks notice to the employer if the period of employment is one year or more, but less than two years; or (b) four weeks notice to the employer if the period of employment is two years or more.
Q: Is there any exception to this rule?
The only exception to an employee not giving notice of his intent to terminate his services is where the employer has been guilty of a breach of the terms and conditions of employment.
Q: How is the giving of Notice by an Employer to an Employee effected?
Under the Section 30 (1) of the Employment Act, notice may be given orally or in writing by being delivered to the employee or left for him at his usual or last known place of residence, or sent by prepaid registered post addressed to him at that place.
Q: How is Notice effected by the Employee to the Employer?
Notice from the Employee to the Employer may be given by the employee himself or by a person authorized by him to act on his behalf and may be given orally or in writing by being delivered to the employer, or sent by prepaid registered post addressed to him at the place where the employee is or was employed by him; or if arrangements in that behalf have been made otherwise by the employer, then notice by the employee may be given to such person or left for such a person at a designated place or sent by prepaid registered post to such person or place as may be designated.
Q: What is Summary Dismissal?
According to Section 31 of the Employment Act, Summary Dismissal occurs when an employee is dismissed or terminated by his employer without pay or notice due to some act or fundamental breach of his contract of employment, or where he is deemed to have acted in a manner ‘repugnant’ to the fundamental interests of his employer.
Q: What sort of misconduct is treated as a fundamental breach of one’s contract?
Section 32 of the Employment Act sets out a number of such breaches, and also makes provision that such acts are not limited to those set out. These include: Theft, fraudulent offences, dishonesty, gross insubordination or insolence; gross indecency, breach of confidentiality, gross negligence, incompetence, gross misconduct.
Q: What is the standard of proof of misconduct?
Section 32 of the Employment Act 2001 provides:
An employer shall prove for the purposes of any proceedings before the Tribunal that he honestly and reasonably believed on a balance of probability that the employee had committed the misconduct in question at the time of the dismissal and that he had conducted a reasonable investigation of such misconduct except where such an investigation was otherwise unwarranted.
Q: What is Redundancy?
Redundancy, under Section 27 of the Employment Act, 2001 applies when:
(a) …an employer has ceased or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased, or intends to cease, to carry on that business in the place where the employee was so employed; or
(b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular in the place where he was so employed, have ceased or diminished or are expected to cease or diminish.
Q: Can an employee be terminated just for being pregnant?
No. In fact, the Act safeguards against this and provides that terminating an employee on the mere ground of pregnancy may subject the employer to unfair dismissal.
Q: What constitutes ‘Unfair Dismissal’?
Pursuant to Part IX, Section 36 of the Employment Act, there are four grounds of unfair dismissal. They arise where the employee is terminated due to or in connection with:
I. Trade union membership or participation;
II. Redundancy
III. Pregnancy
IV. A lockout, strike or other industrial action.
Q: What are the remedies for Unfair Dismissal?
Under Sections 42 – 44 of the Employment Act, 2001, where a complaint of Unfair Dismissal is proven, the Bahamas Industrial Tribunal may order:
i) reinstatement
ii) re-engagement, or under particular circumstances
iii) an award of compensation to be paid by the employer to the employee.
In the event of reinstatement, the employee is returned to work with all benefits intact as if he had not been dismissed at all. In the event of re-engagement, the employee is returned to such comparable employment to that from which he was dismissed and the Tribunal will direct which specific terms are to apply.
Q: What if the Employer does not comply with the Tribunal’s Order?
Where the Employer does not comply with the Tribunal’s order, Section 44 (2) provides:
(a) The Tribunal shall make an award of compensation for unfair dismissal calculated in accordance with sections 45 – 47 to be paid by the employer to the employee; and
(b) Unless the employer satisfied the Tribunal that it was not practicable to comply with the order, the Tribunal shall make an additional award of compensation to be paid by the employer to the employee of an amount of not more than twenty-six weeks’ pay.
Q: What is the first thing I should do, when terminated?
Most businesses allow for an appeal of all disciplinary related matters by way of an internal grievance review panel or board. Check with your employer to determine whether there is such a board with your company. If not, then you may request a hearing before the Conciliation Board at the Department of Labour. If the matter is not satisfactorily resolved, then you may request the Minister of Labour refer the matter to further adjudication before the Bahamas Industrial Tribunal. At all times, however, it is open to the employer to see remedy before the local courts, but, due to the costs involved, most employees tend to prefer the easier route of the Labour Board and Industrial Tribunal.
Seeking competent legal representation from a firm like Halsbury Chambers is also recommended