Examining the Protection of Employment Act (cont’d)

No man is above the law, and no man is below it; nor do we ask any man’s permission when we require him to obey it. – President Theodore Roosevelt.

Welcome back to our series as we discuss the St Vincent and the Grenadines Protection of Employment Act, 2003. Today we conclude our discussion on “Termination for good cause.” Some companies are quick to part ways with an employee who has been arrested on an alleged offence that has nothing to do with their employment. For example, a case where an employee was terminated after he was arrested for allegedly beating his partner. Although the employee was an entry level staff, his employer claimed that his behaviour in his personal life was in conflict with the company’s brand. Under “Termination for good cause” the Act states that an employee may be terminated for good cause if he “has been found guilty of a criminal offence relating to his employment, without the connivance, express or implied, of his employer.” It is important to note the words “offence relating to his employment.”

On the other hand, if an employee is arrested for an alleged crime relating to his employment and is terminated by his employer before the case is tried, the employee can make a claim to be reinstated in his position if he wins the case. However, if the employee, assumes that because he was arrested that he was fired and abandoned his job, he cannot make a claim to be reinstated after a successful trial.

It must be noted however, where a condition of employment states that an employee will be terminated if he is found guilty of crime, whether that crime is related to his employment or not, such a condition is valid once it was mutually agreed.

The Act also states that an employee may be terminated for good cause if he “does not have the capability or qualification to perform the work of the kind he was employed to do: Provided that the employer has given the employee at least two written warnings to that effect and that within three months thereafter the employee does not rectify the defect or make up the deficiency pointed out to him.” Let’s break this down. Imagine Tom was hired as a Store Manager but has proven to be incapable of doing the job at the required standards. Tom’s manager is expected to give him at least two written warnings that explicitly express Tom’s inability and what he needs to do to correct his underperformance. His manager should then give Tom at least three months to show a consistent improvement. Although the law does not stipulate, it is expected that Tom’s manager would offer him coaching and training before Tom is consider incompetent and is terminated with good cause.

Additionally, an employee may be terminated for good cause if it has been proven that he does not possess the qualifications that he claimed he possesses pertaining to the job he was hired to do. I know of a case where Sue, after about one year in an entry level position, applied for a vacant higher position within her company that required a higher level education than of her current position. Sue presented the prerequisite qualifications with her internal application and landed the promotion.

When the news of Sue’s promotion began circulating in the company someone contested Sue’s promotion on the grounds that Sue had no academic qualification.

The matter was officially investigated and it was found that the document that was presented to gain the promotion was forged. Sue admitted to the offence and pleaded to be reinstated to her former position but instead, Sue was terminated for good cause. This was an extreme case. Usually, employees are given a specific time to produce their qualifications before they are terminated for good cause.

Finally, the Act states that an employee can be terminated for good cause if he “cannot be retained in the position he held without contravention by him or his employer of some existing law.” Imagine John is employed as a driver and therefore is required to have a valid driver’s license. However, John is found guilty of a traffic offence that resulted in a suspension of his driver’s license for a year. John can be terminated for good cause. Similarly, imagine that Mary is an expatriate whose employment in St. Vincent and the Grenadines is contingent on work and residency permits. If for one reason or the other Mary’s permits are revoked or a renewal denied, Mary may be terminated with cause.

Join us again next week as we discuss termination due to illness and redundancy.

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