PART VIII – FAIR AND UNFAIR TERMINATION OF EMPLOYMENT
Fair termination
- A termination of a worker’s employment is fair if the contract of employment is terminated by the employer on any of the following grounds:
- that the worker is incompetent or lacks the qualification in relation to the work for which the worker is employed;
- the proven misconduct of the worker;
- due to legal restriction imposed on the worker prohibiting the worker from performing the work for which he or she is employed.
The employment of a worker shall not be unfairly terminated by the worker’s employer.
A worker’s employment is terminated unfairly if the only reason for the termination is
- that the worker has joined, intends to join or has ceased to be a member of a trade union or intends to take part in the activities of a trade union;
- that the worker seeks office as, or is acting or has acted in the capacity of, a workers’ representative;
- that the worker has filed a complaint or participated in proceedings against the employer involving alleged violation of this Act or any other enactment;
- the worker’s gender, race, colour, ethnicity, origin, religion, creed, social, political or economic status;
- in the case of a woman worker, due to the pregnancy of the worker or the absence of the worker from work during maternity leave;
- in the case of a worker with a disability, due to the worker’s disability;
- that the worker is temporarily ill or injured and this is certified by a recognized medial practitioner;
- that the worker does not possess the current level of qualification required in relation to the work for which the worker was employed which is different from the level of qualification required at the commencement of his or her employment; or
- that the worker refused or indicated an intention to refuse to do any work normally done by a worker who at the time was taking part in a lawful strike unless the work is necessary to prevent actual danger to life, personal safety or health or the maintenance of plant and equipment.
Without limiting the provisions of subsection (2), a worker’s employment is deemed to be unfairly terminated if
- with or without notice to the employer, the worker terminates the contract of employment
- because of ill-treatment of the worker by the employer, having regard to the circumstances of the case; or
- because the employer has failed to take action on repeated complaints of sexual harassment of the worker at the work place.
A termination may be unfair if the employer fails to prove that,
- the reason for the termination is fair; or
- the termination was made in accordance with a fair procedure or this Act.
Remedies for unfair termination
A worker who claims that the employment of the worker has been unfairly terminated by the worker’s employer may present a complaint to the Commission. If upon investigation of the complaint the Commission finds that the termination of the employment is unfair, it may
- order the employer to re-instate the worker from the date of the termination of employment;
- order the employer to re-employ the worker, either in the work for which the worker was employed before the termination or in other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; or
- order the employer to pay compensation to the worker.
Redundancy
When an employer contemplates the introduction of major changes in production, programme, organization, structure or technology of an undertaking that are likely to entail terminations of employment of workers in the undertaking, the employer shall
- provide in writing to the Chief Labour Officer and the trade union concerned, not later than three months before the contemplated changes, all relevant information including the reasons for any termination, the number and categories of workers likely to be affected and the period within which any termination is to be carried out; and
- consult the trade union concerned on measures to be taken to avert or minimize the termination as well as measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment.
Without prejudice to subsection (1), where an undertaking is closed down or undergoes an arrangement or amalgamation and the close down, arrangement or amalgamation causes
severance of the legal relationship of worker and employer as it existed immediately before the close down, arrangement or amalgamation; and as a result of and in addition to the severance that worker becomes unemployed or suffers any diminution in the terms and conditions of employment,
the worker is entitled to be paid by the undertaking at which that worker was immediately employed prior to the close down, arrangement or amalgamation, compensation, in this section referred to as “redundancy pay”.
In determining whether a worker has suffered any diminution in his or her terms and conditions of employment, account shall be taken of the past services and accumulated benefits, if any, of the worker in respect of the employment with the undertaking before the changes were carried out.
the amount of redundancy pay and the terms and conditions of payment are matters which are subject to negotiation between the employer or a representative of the employer on the one hand and the worker or the trade union concerned on the other,
Any dispute that concerns the redundancy pay and the terms and conditions of payment may be referred to the Commission by the aggrieved party for settlement, and the decision of the Commission shall subject to any other law be final.
Exceptions
The provisions of this Part do not apply to the following categories of workers:
- workers engaged under a contract of employment for specified period of time or specified work;
- worker serving a period of probation or qualifying period of employment of reasonable duration determined in advance; and
- workers engaged on a casual basis.
