The Employment Act 2000 - which comes in to full force from tomorrow - may make it more difficult to sack staff but at least one local lawyer sees some flaws in the legislation which could affect how it holds up before the Employment Tribunal or before a court of law.

The purpose of the Act is to promote fair treatment of employers and employees, provide minimum standards, establish procedures and notice periods for termination, protect against unfair dismissal and establish an employment tribunal to hear complaints under the Act.

Under the Act, termination - except when of employment for a fixed term - may only relate to an employee's ability, performance, conduct or for a redundancy.

An employer must take certain steps before firing an employee, including a notice period or severance pay. These are not required for firing an employee for serious misconduct.

Lawyer Ronald Myers said he has found a number of areas in part four of the Act, which deals with termination of employment, which may require further amendments.

These are laid out in his paper titled ‘Terminating Employees in Accordance with the Law'.

The partner at Marshall, Diel & Myers said that in at least two areas, the Act is broad enough to be open to interpretation.

Firstly, the Act states that serious misconduct has to be “directly related to the employment relationship or which has a detrimental effect on the employer's business”.

Mr. Myers said the Act is without a ‘direct' definition of serious misconduct which could lead to problems with its interpretation.

Secondly, the Act does not require a probation period of any specific length of time, he continued.

The Act states either the employer or employee may terminate the contract of employment without reason or notice during the probation period.

Mr. Myers said in his paper: “An employer wishing to avoid the necessity of giving notice or to have valid reasons could simply place all new employees on lengthy probationary periods, during which he could dismiss without cause. The downside of this is that the employee would also be able to leave without notice (or) cause during that period.”

Cases that may come before the Employment Tribunal or before the Supreme Court in an appeal could be Supreme Court in an appeal could be hindered in that ‘availability of precedence is severely restricted'.

Part four of the Act has been “drawn virtually verbatim from the provisions of the CARICOM Model Harmonisation Act regarding termination of employment”, said Mr. Myers.

He added that the objective of the CARICOM act was the implementation of International Labour Organisation Convention No. 158 of 1981.

Mr. Myers added: “This part of the Act is therefore not modelled on any actual legislation that exists in some other country.

“Accordingly, there is absolutely no available learning as to its meaning - there are no decided cases and there are no text books.

“Further, there are no Bermuda cases yet decided which would be of any assistance, given that the Act is still so new.

“It is therefore quite difficult to say with any certainty what, as a matter of law, any particular provision means or does not mean.

“One has to read the language in accordance with the general principles of statutory interpretation and in essence make educated guesses as to what the Employment Tribunal and eventually the Courts of Bermuda are likely to hold on any particular question.” Even in cases where the Tribunal or Court has determined an employee was unlawfully fired, the gains for the employee may be limited to reinstatement of lost earnings and employment.

Mr. Myers stated: “The Tribunal is required to consider first, the possibility of reinstatement, taking into account the wishes of the parties, but is not required to follow those wishes.

“So the Tribunal could order an employee who does not wish to work for an employer to work for that employer where that employer does not wish that employee to work for him.

“This is not only impracticable, I think it is a breach of freedom of association and unconstitutional.”