20.11.19

“Surprise!!!... you’re fired!”

“Surprise!!!... you’re fired!”

Some surprises are more welcomed than others and some surprises we can do without altogether. The provisions of the Employment (Termination and Redundancy Payments) Act makes sure that an employee can receive some forewarning before the realities of a dismissal from employment kicks in, or at the very least, helps them financially to ease the burden. It is imperative that all employers a conscious their requirements under the act and seek legal advice when considering a dismissal for any reason as error here can be costly in the long run.

Though no amount of warning can truly cushion the blow of being let go, the Employment (Termination and Redundancy Payments) Act prescribes a period of time within which an employer must inform his employee of a decision to terminate their employment; we call this notice period. This notice period is useful, as it helps the employee to make whatever adjustments they can in the management of their affairs before coming to the point where they will no longer be in receipt of a salary.

This notice period is only applicable to workers who have been continuously employed for four weeks or more. The duration of notice that the employee is entitled to varies in accordance with the duration of service that they have provided to the employer. The act prescribes the following minimum notice periods for the corresponding length of service:

  • Two weeks’ notice for an employee with less than five years of service.
  • Four weeks’ notice for an employee with five or more years of service, but less than ten years.
  • Six weeks’ notice for an employee with ten or more years of service, but less than fifteen years.
  • Eight weeks’ notice for an employee with fifteen or more years of service, but less than twenty years.
  • Twelve weeks’ notice for an employee with more than twenty years of service.

The Act is accompanied by regulations which set out a formula applied in determining, what amounts to continuous employment and in determining when an employee has reached the prescribed number of years of service.

The Act prescribes minimum periods of notice. The employer and employee are at liberty to agree to longer periods, but they may not, even by agreement, adopt shorter periods of notice than what is specified in the Act.

The Act entitles an employee to demand a longer period of notice than that which is specified if by custom the notice period is required to be of longer duration. This provision may be seen as somewhat unprincipled as the act does not go on to elaborate on what is meant by custom or required. These provisions are then left up to determination by a Court which would no doubt be determined in reference to the specific facts of each case. This does not promote the overall thrust of the act, which is to provide certainty for employer and employees as to the procedures for termination.

The Act also allows the employer to make a payment in lieu of notice, rather than allowing the employee to continue in work throughout the duration of the notice period. Though this comes at a cost, many employers prefer to make this payment as the reactions of a worker who is aggrieved by the news that they will soon be out of a job may be unpredictable. Having them go home immediately may be a tidier and more humane approach.

An employer is not required to give notice or make a notice payment to an employee within their probationary period. However, that the probationary period must be specified in the employment contract. Notwithstanding this, where the prescribed probation period exceeds ninety days, the employer will be required to give notice above that ninety-day period.

Where there is a fixed term contract, there is no need for an employer to give notice where that contract comes to an end on the expiration date. But, if an employee under a fixed term contract continues to work up to four weeks after the expiration date, then all requisite notice periods will apply as though the employment was for an indefinite period.

Though we have said a lot about the notice periods required by the employer to the employee. Employees also have a duty to give at least two weeks’ notice to their employers before leaving their jobs; in practice, this requirement is often ignored by the employee.

Matthew Royal is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Litigation Department. Matthew may be contacted via matthew.royal@mfg.com.jm or www.myersfletcher.com This article is for general information purposes only and does not constitute legal advice.