What constitutes wrongful dismissal in Bermuda? What are your remedies if you have been wrongfully dismissed? The first and obvious point to make is that your employer is entitled to terminate your employment in accordance with the express terms of your written contract of employment, assuming that you have one.

That contract might be spelled out in one or more documents such as your letter of engagement, the company's employee handbook (if you have been made aware of its terms and agreed to them), letters passing between you and your employer which might have varied the original terms of your contract, a Collective Bargaining Agreement if this has been incorporated into your contract.

Thus your written contract might state that your employer is entitled to terminate your employment at any time for any reason without notice or payment in lieu of notice.

Provided that the termination does not contravene the Human Rights Act, or other similar legislation, an immediate termination without cause will be lawful because those are the rules by which you agreed to be bound.

You should therefore be comfortable with what you are signing before signing and always get independent legal advice if you are unsure of certain terms.

Three main types of dismissal should be kept in mind: summary dismissal for cause, dismissal upon the giving of notice and constructive dismissal.

Summary Dismissal for Cause : Your employer is permitted to terminate your contract immediately and without any notice to you, if he or she is able to prove that you were guilty of "gross misconduct''.

Your behaviour must be serious enough that it could be said to have "fundamentally breached'' your contract. If your employer failed to prove quite serious misconduct on your part, then you would have a good case for wrongful dismissal.

What constitutes gross misconduct may be expressly defined in your written contract of employment. Otherwise, the Court will look at the behaviour in question and consider whether it constitutes "gross misconduct'' by applying a common sense definition of that term.

Commonly accepted types of gross misconduct include dishonesty, insubordination, a refusal to perform assigned duties including overtime as required, incompetence, excessive tardiness or absenteeism (whether excused or unexcused), abuse or destruction of property, fighting on the job, breach of confidentiality, possession of illegal drugs - in short, anything which no reasonable employer should be expected to tolerate.

Dismissal upon the giving of Notice : The other and more common way for your employer to terminate your contract is to give you "notice or payment in lieu of notice'' (sometimes called severance pay).

Every private employer in Bermuda is allowed to terminate an employee upon the giving of adequate notice. No reason for termination need be given.

The length of notice that your employer must give is determined first by what is contained in your written contract. If your employer breaches an agreed term as to notice, you have been wrongfully dismissed.

Alternatively, your contract might be for a fixed term, say three years. If your employer dismisses you before that three year period is over, and you have not been guilty of gross misconduct, then you have been wrongfully dismissed and are entitled to damages.

If there is no express term as to how much notice your employer must give, then the Court will decide what is a reasonable period of notice, based on all of the circumstances of your case, including your experience, how long you have worked for the company, the nature of your work, how often you get paid, how easy it will be for you to get a comparable job elsewhere, etc.

Thus a construction worker who is paid weekly and who might be more likely to find another job quickly will be entitled to less notice than a professional person.

There are several Supreme Court decisions in Bermuda on how much notice is required in the absence of an agreed term (three months for hotel hair salon manager on a work permit, three months for an attorney of five years experience who had worked for his law firm for three years, and seven months for an operations manager and board member employed in an oil company for ten years).

As to payment in lieu of notice (severance pay), instead of giving you notice and asking you to work out the notice period, your employer is entitled to pay you the equivalent of your salary and benefits for the notice period and ask you to leave immediately.

Constructive dismissal : Constructive dismissal results from the employer's wrongful conduct, which amounts to a fundamental breach of contract not necessarily related to notice.

Examples of types of breach of contract on the part of your employer which may support a finding of constructive dismissal are: a failure to pay you wages, a demotion or unacceptable change in status, undermining your position, failing to follow a contractually binding disciplinary procedure, and failing to treat you with trust and respect.

You must leave in response to the breach of contract and make it clear you are treating the contract as over. Delay in doing so may result in a loss of remedies. Always seek legal advice before taking such a drastic step.

What are your remedies for wrongful dismissal? In all cases you are entitled to be paid all of your salary up to the date of termination in addition to all accrued vacation pay.

In addition, you are entitled to full salary and benefits during the whole of the notice period, subject to your duty to mitigate your loss (see below).

Thus, for example, if your stock options were to vest during the notice period, the vesting would be effective.

Even if you have been wrongfully dismissed, you have a duty to "mitigate your loss'' by immediately taking reasonable steps to look for a comparable new job.

If you find one during the notice period, or if the Court thinks you would have done so had you looked, then your employer is not responsible for paying you after that point in time.

For example, if the notice period is six months but the Court thinks you would have found a similar job within one month, you will only be entitled to one month's damages as your remedy.

The Law is set to change. It is important to note that Parliament is expected to enact the Employment Act 2000 in the near future, which is likely to introduce significant changes to employment law in Bermuda.

Government is currently consulting with various sectors of the community on what form these changes will take. Once the draft Act becomes law, we will submit another article for publication so that you may better understand what effect this Act will have on your employment situation.

You should not use this article as a substitute for professional legal advice.

It is worth paying for a lawyer's advice before taking any steps as a result of what you think might be a wrongful dismissal.

If you have limited funds, the Community Advice Centre, located at 3 Angle Street, offers free legal advice from local attorneys on Thursdays from 5.30 p.m. on a first come, first-served basis. Call 292-1343 for information.

Juliana Jack civil litagation attorney, at Mello Jones & Martin N.B.

This is the exact same Law Matters supplement that ran in The Royal Gazette on 20th September, 2000. However do the printing problems that affected the quality of the print, it was pulled from the circulation and did not appear again until the 9th October, 2000.