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Building Understanding
Crill Canavan looks at the lessons construction companies can learn from decisions by the Jersey Employment Tribunal
Decisions by the Jersey Employment Tribunal have demonstrated the need for construction firms in Jersey to take into account their treatment of employees whenconsidering dismissal.Of the four cases that have been before the Tribunal involving building companies, the majority of businesses have chosen to provide representation from within their own firm to defend their former employees’ claims.
A reading of the decisions by the Tribunal shows that had the companies taken initial employment advice from a lawyer prior to dismissing their employee(s), recourse to the Tribunal may have been avoided.
Lesson 1: Be clear about your contractual terms
Haertwig v Deerglen (Jersey) Limited highlighted the need for companies to put all terms of the contract between the company and the employee (in this case a self-employed architect engaged on a contract with Deerglen), into a written agreement.It was only upon hearing oral evidence that the Tribunal decided that the handwritten addendum to Mr Haertwig’s contract: “bonus £4.00 for every hour worked” was actually conditional on Mr Haertwig completing the project upon which he was engaged.
Whilst stating its reluctance to incorporate into written terms of employment an unwritten term, the Tribunal ruled that where both parties agreed upon an unwritten term, as here, it was right to treat that term as a part of the contract.
Lesson 2: Clarify the terms of dismissal
In two cases the Tribunal has been occupied with terms of dismissal. In the example of Hammond v J & T Carré Brothers Limited the complainant argued that he had been unfairly dismissed, however the Tribunal found in favour of the respondent employers, who submittedthat Mr Hammond had been made redundant.
It is important to clearly inform an employee of the reasons for their dismissal and as Lesson 3 shows, if a redundancy is being undertaken then a fair, documented process must be followed.
Lesson 3: Write everything down….
The second actionconcerned with the terms of dismissal was Pereira v Camerons Limited. This case was complicated by the fact that Mr Carré gave the complainant a conditional dismissal, stating that unless Mr Hammond managed to find another gang of scaffolders to work for the firm, his job would come to an end.The tribunal found it unacceptable that the terms of the dismissal were oral and not written.
In this case, the Tribunal held that the complainant had been made redundant by Camerons without a fair selection process being followed and in the absence of “any consultation whatsoever”.Here, the tribunal had to rely on oral recollections of non-minuted management meetings by Camerons employees.It further noted that there “had been no contact between the Company and Mr Pereira regarding his redundancy”.
Had Camerons followed a redundancy process and documented this along with all consultation that had taken place with the employee, then a different tribunal outcome would have been likely.
Lesson 4…..and consult with your employees
An employer has a duty to consult with employees about the risk of redundancy in order that the employee may consider alternatives.
In Goguelin v Stuart Banks (Carpenters & Builders) Limited, Mr Goguelin, a skilled carpenter, claimed unfair dismissal under article 64 of the Employment (Jersey) Law 2003.The tribunal found in favour of the respondent company, deciding that the reason for the complainant’s dismissal was due to redundancy rather than on any “unfair” grounds.
Whilst Mr Banks had warned Mr Goguelin about the type of work he did being in short supply, such mentions were always vague and the complainant was not warned expressly about his dismissal. This placed the company at risk of being penalised by the Tribunal.
Conclusion
The clear message arising from the decisions of the Tribunal so far is for employers to take legal advice about best practice. From the drafting and content of employment contracts, to the appropriate use of consultancy procedures when selecting employees for redundancy. Good advice will help employers avoid what could be a costly and time-intensive attendance at the Jersey Employment Tribunal.
For more information and advice relating to employment matters, please contact a member of our Employment Team.