The Issue of Termination and Dismissal from Employment

Aug 04, 2016 Letters

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Dear Editor,
I should be grateful for the publication of this letter on the issue of termination and dismissal from employment, both in the private and public sectors. It is hoped that this would stimulate a debate on this matter.
The right to work and to continue working is guided by national and international laws, the application of which, demands principled and fair treatment without discrimination and with due process and natural justice.
The system of industrial relations is informed, influenced and functions within the norms of national legislation, international labour standards, and regional labour policy of CARICOM.
The Constitution of Guyana, the Labour Laws, and International Labour Conventions of the International Labour Organisation (ILO), ratified by Guyana as treaty obligations and as international law, provide the legal basis, foundation and framework for the conduct of labour relations by the Government, its Agencies, and the social partners, represented by trade unions and employers and their organizations. Together, these instruments constitute the Labour Code of Guyana.
The general declaratory principles of Chapter two of the Constitution of Guyana include the right to work, the right to equality of opportunity and treatment in all aspects of employment, and impose a duty on the state to protect the just rights and interests of citizens.
Chapter III of the Constitution affirms the fundamental rights and freedoms of the individual and entitle every citizen, basic rights without distinction and discrimination including the right, regardless of his/her race, origin, political opinions, colour, creed or sex, subject to the rights and freedoms of others and the public interest, to freedom of conscience, of expression, assembly, and association.
The Prevention of Discrimination Act No. 26 of 1997 protects against unlawful discrimination. Under Part II, Section 4 of the Act prohibits discrimination on the grounds of: race, sex, religion, colour, ethnic origin, indigenous population, national extraction, social origin, economic status, political opinion, disability, family responsibilities, pregnancy, marital status, or age except for the purpose of retirement and restriction on work and employment of minors.
The Act also prohibits discrimination against a person by distinction, exclusion or preference, the intent of which is to deny equality of opportunity or treatment in any employment or occupation.
Part III, Section 5 of this Act protects against discrimination in employment, for it is unlawful for any employer or his/her agent to discriminate in relation to recruitment, selection, or employment on any grounds, except where genuine occupational qualifications exist, in keeping with this Act.
These are clear lawful obligations, but there are some serious concerns about the actions of employers or their agents on the application of fairness in bringing an employment relationship to an end by termination, dismissal or constructive dismissal.
The application of fairness relates to i) procedural fairness requiring that an end of employment should be in accordance with a fair procedure; and ii) substantive fairness which requires that there should be a fair reason for ending an employment contract..
The usual valid grounds for termination by employers or their agents, must: i) relate to work performance issues, i.e. incapacity; ii) a series of work related infractions not so serious as to warrant summary dismissal; iii) by mutual consent; iv) by required notice; v) for reasons of redundancy relating to the operational requirements of the enterprise; and vi) end of contract without the option for renewal. Where there is an option for the renewal of an employment contract at the end of the current contract, there must be valid reasons based on six grounds listed above for the non-renewal. End of an optional renewal of a contract must not be used as pretext, excuse, or reason for preferential replacements.
The valid grounds for summary dismissal under the Termination of Employment and Severance Pay Act No 19 of 1997 must relate to the capacity and conduct of the employee at work for good and sufficient cause relating to serious misconduct on the job.
Section 4 of this Act states clearly the several reasons which are not valid or constitute good or sufficient cause for dismissal or for disciplinary action against an employee including race, sex, religion, colour, ethnic origin, national extraction, social origin, political opinion, family responsibility or marital status.
A dismissal on any of the several grounds listed under section 4 of this Act would constitute unfair dismissal. On terminations and dismissals on the initiative of the employer, the burden of valid proof rests with the employer.
The issue of constructive dismissal flows from actions or the conduct of the employer, his agent, or manager making it difficult or untenable for the employee to continue working and may be forced to resign or leave the job on own initiative.
An employee in such a situation can be deemed to have been unfairly dismissed, and can challenge the employer in a court of law. The burden of proof to establish “constructive dismissal” rests with the concerned employee.
Samuel J. Goolsarran

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