A healthy relationship between employees and employers – with all parties understanding and living up to their obligations – is fundamental to our economy. Looking at the details of some employment disputes in Bermuda helps us to understand where this relationship can go wrong and what can be done to avoid it.

In 2021, the Bermuda Employment Act 2000 law was amended under Decisions and Awards 44F (2) Notification and Publication of Award(s) making it a statutory requirement for the Bermuda Employment and Labour Tribunal to notify the Minister of the award(s) and the Minister shall, not later than 90 days after the conclusion of the hearing before it and subject to this section, cause the award(s) to be made public.

The Bermuda Employment and Labour Relations Tribunal was also established pursuant to the same 2021 amendment in a consolidation of various tribunals, arbitration panels and boards into one tribunal with jurisdiction to hear and determine complaints, labour disputes, differences, conflicts and other matters referred to it under the Employment and Labour Code, thus streamlining and expediting the resolution of labour disputes. https://www.gov.bm/articles/employment-and-labour-relations-tribunal

The Tribunal is currently comprised of 28 members; ten persons with experience to represent the interests of employers, ten with experience to represent the interests of employees and eight barristers or attorneys with not less than eight years’ standing who possess Bermudian status. From this core panel of experienced labour, legal and related professionals, the chairman will select the three-member tribunal (for each matter) with at least one member representing the interest of employees and one representing the interest of employers.

This process allows for multiple matters to be adjudicated at the same time.

The Tribunal powers include:

• To hear and determine any matter referred to it in the absence of any party

• Require any person to appear before the Tribunal and give evidence or produce documents

• Exclude the public with the consent of the parties

• Award compensation to an employee who cannot be reinstated or re-employed

• Impose a civil penalty of up to $10,000 for breaches of the Employment and Labour Code

• The Tribunal shall not be subject to the direction or control of any other person or authority

• The Tribunal shall regulate its own proceedings as it thinks fit.

The first results of those cases adjudicated since the amendment, were published recently on the Bermuda Government website. https://www.gov.bm/employment-and-labour-relations-tribunal

Your ever faithful columnist, I spent considerable time reviewing every case published with particular interest in the cases where an employee was seeking redress for unpaid wages and benefits.

The tribunals conducted serious examinations. Every case was detailed extensively, with heavy redaction to provide some confidentiality to the claimants as well as the employer, and were referred when appropriate to a adherence to, and or applicable sections of the law with the results in many cases extending to more than 20 pages.

The 22 cases are all listed on the Bermuda Government Employment and Labour Relations Tribunal website; each contain section references to the EA (Employment Act 2000) and TULR (Trade Union and Labour Relations Cons Act 2021).

The Claimant(s) and the Respondent(s) sought a fair review and remedy in disputes in a range of circumstances:

– Constructive or unfair dismissal and remedy of a binding award

– Complaint of hostile environment

– Unauthorised payroll deductions

– Unpaid vacation leave

– Unpaid commissions

– Reduction of work hours

– Summary dismissal for serious misconduct

– Unfair termination

– Unfair employment contract termination

– Dispute on retirement policy

– Resolution of vacation and severance compensation

– Breach of contract

– Professional misconduct

– Contravention of the act.

The proceedings, hearings and determinations highlighted various problems of documentation nature. In some circumstances, they varied with multiple occurrences and with both parties to the case

– Insufficient applicable verification,

– Incorrect or hard-to-interpret financial implications

– Undocumented verbal warnings

– Timeline insufficiency,

– Claimants/witnesses had left the island necessitating WebEx contact

– Unclear or only oral statement of employment or contract

– Dependent on oral evidence,

– Inadequate, missing, or omissions of documentation, on both parties’ sides,

– Failure to provide written employment contracts with specific terms of employment, resignation, dismissal, etc

– Covid circumstances blurring changes in contracts and proceedings

– Time lags, in some cases going back years

– Non-compliance with awards

– Remedies in civil court.

The decisions for redress of lost earnings were unclear or dissimilar where the award was to be completed in 30 days, or some cases, a redirect to file for repayment in civil court

I have written extensively in the past regarding Employer and Employee relationships and found in reviewing these Tribunal cases that neither an employer, nor an employee are always at fault.

In some situations, employers operated within the letter of the law. In other cases, employees were entitled to monetary compensation.

What was very clear in some cases was the ambiguity and/or missing documentation of the contract assumed between the two parties as well as lack of understanding as to how the employment law is interpreted.

Employees must make monitoring their wages, benefits, vacation, overtime, holiday, pension, and health contributions on a consistent basis a top priority. A review of your paycheque, the net amount deposited in your bank account, and whether the deductions and benefits that you are entitled to are mathematically correct and have been deposited by your employer on your behalf!

Further, save every pay stub, pension and social insurance statement, annual review commentary, plaudits and employee awards, and a narrative of difficult issues (dated and witnessed if possible) if they arrive within your workplace environment.

Employers should always be aware of the need to operate within the letter of employment law, particularly updates to existing legislation, clarifying, when necessary, any points that can be subject to various interpretations. It is worth considering working with an employment attorney to fine-tune your employment contract, statement of employment, handbook and any other material provided to new and existing employees.

Finally, take a look at The Dawn of New Beginnings: Bermuda’s First Financial Literacy Primer, Section 9 – Tracking Your Employee Benefits in Bermuda – available for reading and downloadable for free.

https://www.royalgazette.com/bermuda-islander/article/20201221/bermuda-islander-step-9/

Next week: Anatomy of a mortgage contract – part 2

• Martha Harris Myron is a native Bermuda islander with US connections. Author of Bermuda’s First Financial Literacy Primer – the Dawn of New Beginnings, and the Bermuda – Bermy Island Finance Blog. Contact: martha.myron@gmail.com

References

The Dawn of New Beginnings: Step 9, Employee Benefits, https://www.royalgazette.com/bermuda-islander/article/20201221/bermuda-islander-step-9/

Employment tribunal decisions published – but names of employers remain anonymous, Sam Strangeways, The Royal Gazette, September 30 2022

https://www.royalgazette.com/politics/news/article/20220930/employment-tribunal-decisions-published-but-names-of-employers-remain-anonymous/