In the recent Supreme Court case Island Construction Ltd. et al v Rebecca Philips et al  SC (Bda) 45 App (Island Construction v Phillips), the Supreme Court was asked to determine:
1. Whether the Employment Tribunal was wrong to refuse to adjourn the hearing of a complaint pending the outcome of a criminal investigation into the employee's conduct; and
2. Whether the decision of the Employment Tribunal was wrong.
The Island Construction v Phillips judgment does not go into the full factual matrix of the employee's conduct. However, there is enough information in the judgment to discern that the relevant employees were summarily dismissed by Island Construction as a result of conduct Island Construction determined to be serious misconduct warranting summary dismissal.
The employees lodged a complaint of unfair dismissal with the Employment Tribunal. A criminal complaint was commenced and had not concluded by the time of the Tribunal hearing. Island construction requested that the Tribunal hearing be adjourned (postponed) pending the outcome of the criminal investigation. The Tribunal refused to adjourn/postpone the hearing, which went ahead. At the hearing, the Tribunal ruled against Island Construction, who had not appeared to defend against the unfair dismissal complaint.
Island Construction appealed arguing that the Tribunal was wrong to refuse to adjourn the hearing and that, in any event, the Tribunal's decision was wrong in law.
Decision of the Court
The Honorable Mrs. Justice Subair-Williams struck-out Island Construction's appeal of the decision not to adjourn the hearing and also dismissed Island Construction's appeal of the Tribunal's decision. The judgment highlighted the following, which are, in our view, the key take homes for any employer considering a potential dismissal:
1. It is important that employers take the opportunity to attend and respond to the complaint at the Tribunal Hearing:
"25. Having relinquished the opportunity to appear and having willfully absented from the full hearing which followed, it is hardly open to the Appellants to now complain that they were deprived of a fair hearing based on an adjournment refusal. To do so, in my judgment, would amount to an abuse of process."
2. Where an employee complains of unfair dismissal, the Employer has the burden of proving that the dismissal was justified.
3. Proper internal investigations were highlighted as the Court ruled against part of Island Construction's appeal on the basis that it had failed to give the employees the opportunity to respond to the allegations prior to termination.
4. It was open to the Tribunal to reasonably find that the case for summary dismissal had not been made out and that the Respondents had been unfairly dismissed.
Employers should seek legal advice when considering the summary dismissal of an employee. Missteps at any stage could prove costly at any Tribunal hearing.
First published in The Bermuda Chamber Of Commerce Newsletter (Chamber Insider), September 2019
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