Bermuda’s Labour Relations officers deal with hundreds of complaints each year about employers - mostly over termination and pay issues.Last year they dealt with 365 complaints, compared to 304 in 2009 - and of course not all were found to be valid.But with the dramatic rise in lay-offs and companies struggling in the current economy, Government and employment experts said it’s critical both employers and employees understand their rights, which are clearly set out in the landmark Bermuda Employment Act that’s been in effect more than a decade now.For example, did you know that any termination of employment has to be for cause, however, your employer can fire you for no reason at all if you are on a probationary period?Furthermore, any lay-off or redundancy in Bermuda must be fair and lawful - and genuine.Also there is such a thing as constructive dismissal, where you can terminate your own contract of employment without notice if the employer’s conduct makes it unreasonable to expect you to continue in the job. And if there is a finding of constructive dismissal then it is deemed unfair dismissal under the Act.Both the Employment Act and our Human Rights Commission and laws protect employees from issues such as sexual harassment and discrimination, and employees can go to either one with a grievance in that area (we will have more on human rights law tomorrow).In this tough job market, Mello Jones & Martin partner Juliana Snelling, who has practised employment law for 15 years, said while most employers want to abide by the law and some go beyond the minimum in giving severance pay- there are still those who are not complying with the Act when it comes to lay-offs, either knowingly or unknowingly.She urged employers to seek legal advice on whether a contemplated redundancy is lawful and whether the package being offered is a fair and adequate one.And she urged employees not to sign any severance agreement or cash any severance cheque without first getting independent legal advice.She added: “Employees should be on guard for ensuring that the redundancy is a genuine one and that they are not replaced soon after with someone else doing the same job.”The Act also provides that an employer that is making an employee redundant must give advance notice and actual redundancy pay, not just the last month’s salary.Ms Snelling said she has noticed a “disturbing” trend by a few employers recently.“The employer wants to hire an expat under a work permit or renew their work permit even though a qualified Bermudian has applied for the job,” she said.“They hire the Bermudian as a token gesture, to ensure the granting of the work permit for the expatriate employee, and put the Bermudian under a probationary period.“Once the expat is secured in the job, they then let go the Bermudian during the probation period, even though the Bermudian was performing well. Since the Act says that an employee can be terminated during probation without any reason, the employer argues there is no breach of the Act.”But Ms Snelling said that is an abuse and one that can be reported to Immigration if the employee catches it.In addition, she said, it’s an abuse to keep extending probationary periods.“Even in order to extend it once, the employee should have agreed to that possibility in the contract or Employee Handbook in order for it to be considered an agreed term,” she said.Know your rights!“There are employers who do not know what the provisions are in the Act,” said Economy Minister Kim Wilson. “It is incumbent on both employees and employers to know their rights under the Act.”She added the Act is specific about redundancies and she cautioned companies to be aware that the law must be followed if they are planning any lay-offs.Ms Snelling said there are a number of issues employers need to consider before making lay-offs.She said the key elements of a fair dismissal by reason of redundancy are:l The redundancy situation must be a genuine one.l Fair selection.l The employer should provide a reasonable warning to, and consult with the employee prior to making them redundant.l Consideration of suitable alternative employmentThe Employment Act basically:l Sets minimum standards of employment for all employees working over 15 hours per week.l Requires a statement of employment and itemised pay statement be provided to every employee.l Provides for inspectors to investigate suspected contraventions of the Act.l Sets up an Employment Tribunal - with wide powers of enforcement - for cases which are not settled by internal grievance procedures or the inspector.l Requires that termination of employment will have to be for valid reasons and done in accordance with the provisions of the Act.The statement of employment is a critical part of the Act, Ms Snelling said.It is meant to ensure that both employer and employee are fully aware of and have agreed on the basic terms and conditions of the employment contract.Furthermore, this statement of employment must be signed by both parties and must contain all of the particulars required by Section 6 of the Act.And it must be provided to the employee no later than one week after commencing employment.In general, the statement of employment is a summary of the contractual terms including job title, place of work, gross wage or methodology of calculating the gross wage and the intervals at which it is paid, days and hours of working, holiday entitlement, sick leave, notice provisions, pension provisions, disciplinary and grievance procedure, probationary periods and other matters that are relevant to the employment.Minister Wilson said the Labour Relations Department’s role is to resolve labour disputes and not just disputes involving the unions.If in fact, the employer or employee is unionised, they would be advised to first go to their union, she said, before the Labour Relations Department gets involved.She said the “vast majority” of the complaints made to the Labour Relations officers are resolved and do not go to the Employment Tribunal.In addition, employees who feel wronged can make a complaint to the Immigration hotline (see contact information below)She said officers are assigned to look into all the complaints made via that hotline.Acting executive director of the Bermuda Employers Council, Keith Jensen, said: ”The Act is straightforward and the BEC membership is aware of it. But there will always be some who try to not follow what they should do, just as there are employees who sometimes do things they should not do.”He said the BEC had not had any redundancy issues go to the Tribunal - all complaints had been sorted out at the Labour Relations Department.He added: “In a small community businesses don’t relish or look forward at all to the idea of redundancies and lay-offs. Employers are interested in expanding their businesses.”He said one thing that could go a long way in helping employers and even lead to increased hiring and stabilising of the economy, was adjusting the current work permit policy which does not allow for ten-year work permits.“Business investment and new business goes on matters of confidence and we need changes in work permit policy to help generate that confidence. And it affects not just international business but also hotel investment and reinvestment. It would certainly be encouraging to developers ... to have confidence in the future with regards to hiring specialised personnel from outside the Island.”Resources:www.gov.bmDepartment of Labour and Training 297-7716Labour Relations 297-7650National Training Board 292-3700Immigration Hotline 296-5202 or e-mail adaniels[AT]gov.bm or cperinchief[AT]gov.bmFree 15-minutes of legal advice: The Center on Angle Street, every Thursday from 5.30pm to 7.30 on a first come basis.Legal Aid, 129 Front Street, by appointmentHuman Rights Commission 295-5859.