Employment Act 2000

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/2000/Acts/Employment%20Act%202000.pdf

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Employment Act 2000
EMPLOYMENT ACT 2000

1

BERMUDA

2000 : 38

EMPLOYMENT ACT 2000

[Date of Assent: 8 December 2000]

[Operative Date: 1 March 2001]

ARRANGEMENT OF SECTIONS

PART I
INTRODUCTORY

1 Short title and
commencement

2 Application
3 Interpretation
4 Meaning of "employee"
5 Meaning of "continuous

employment"
PART II

CONDITIONS OF
EMPLOYMENT

6 Statement of employment
7 Itemised pay statement
8 Unauthorised deductions
9 Overtime
10 Rest days

PART III
TIME OFF

11 Public holidays
12 Annual vacation
13 Public duties
14 Sick leave
15 Ante-natal care
16 Maternity leave
17 Bereavement leave

PART IV
TERMINATION OF

EMPLOYMENT
General provisions

18 Termination of
employment

19 Probationary period
20 Notice periods
21 Payment in lieu of notice
22 Certificate of termination
23 Severance allowance

Misconduct etc

EMPLOYMENT ACT 2000

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24 Disciplinary action
25 Summary dismissal for

serious misconduct
26 Termination for repeated

misconduct
27 Termination for

unsatisfactory
performance

Unfair dismissal
28 Unfair dismissal
29 Constructive dismissal

Redundancy etc
30 Termination for

redundancy
31 Effect of sham sale
32 Lay off
33 Winding up

PART V
ENFORCEMENT

34 Inspectors
35 Employment Tribunal
36 Right to complain to

inspector

37 Inquiry by inspector
38 Hearing of complaints by

Tribunal
39 Remedies: general
40 Remedies: unfair

dismissal
41 Appeals
42 Binding determination or

order
43 Reports by Tribunal
44 Offences

PART VI
SUPPLEMENTARY

45 Regulations
46 Crown application
47 Amendment of Labour

Relations Act 1975
48 Transitional provisions

SCHEDULE
Employment Tribunal

WHEREAS it is expedient to promote the fair treatment of
employers and employees by providing minimum standards of
employment, by establishing procedures and notice periods for the
termination of employment, by providing employees with protection
against unfair dismissal, and by establishing the Employment Tribunal;
and to make connected provision;

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

PART I
INTRODUCTORY

Short title and commencement
1 (1) This Act may be cited as the Employment Act 2000.

(2) This Act shall come into operation on such date as the
Minister may appoint by notice published in the Gazette.

EMPLOYMENT ACT 2000

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Application
2 (1) Subject to any express provision to the contrary in this Act
or regulations, this Act applies to all employers and employees.

(2) An agreement to waive any of the requirements of this Act
and the regulations is of no effect.

(3) Where any of the rights of an employee established by any
other Act, agreement, contract of employment, custom or practice are
more favourable than this Act requires, the provisions so established
prevail over this Act.

Interpretation
3 In this Act—

"collective agreement" means a written agreement between an
employer, or an employers' organisation authorised by the
employer, and a trade union, which concerns terms and
conditions of employment and any other matter of mutual
interest;

"condition of redundancy" has the meaning given in section
30(3);

"constructive dismissal" means termination by virtue of section
29;

"continuous employment" shall be determined in accordance
with section 5;

"contract of employment" means any contract, whether express
or implied, whether oral or in writing and whether or not in
compliance with the requirements of this Act, which provides
for an employee to perform specified services for an employer;

"dress code" means a written policy issued by an employer
requiring his employees to dress in a particular manner for
reasons of safety, hygiene or corporate image;

"employee" has the meaning given in section 4;

"employer" means a person who employs any other person;

"inspector" means the Labour Relations Officer or a person
designated as an inspector under section 34;

"lock-out" has the meaning given in the Labour Relations Act
1975;

"Minister" means the Minister responsible for labour;

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"normal hourly wage", in relation to an employee who does not
receive a standard wage per hour, shall be calculated by
dividing a week's wages by the average number of hours for
which the employee is employed per week, excluding any
overtime;

"overtime rate" means the rate of one and a half times the
employee's normal hourly wage;

"prescribed" means prescribed by regulations;

"regulations" means regulations made by the Minister under this
Act;

"statutory notice period" has the meaning given in section 20;

"strike" and "irregular industrial action short of a strike" have
the meanings given in the Labour Relations Act 1975;

"Tribunal" means the Employment Tribunal established by
section 35;

"unfair dismissal" has the meaning given in sections 28 and 29;

"wages" means all sums payable to an employee under his
contract of employment (by way of weekly wage, annual
salary or otherwise) or otherwise directly in connection with
his employment, including any commission, but not
including—

(a) any tips or bonuses;

(b) any expenses; or

(c) the monetary value of any benefits in kind;

"week" means—

(a) a week ending with a Saturday; or

(b) in relation to an employee whose pay is calculated on a
weekly basis ending with a day other than Saturday, a
week ending with that day;

"a week's wages" in relation to an employee whose wages vary
from week to week, shall be calculated by taking—

(a) the average wages earned by him over the previous
twelve weeks, or

(b) in any case where he has worked for less than twelve
weeks, the average wages earned by him over the time
that he has worked.

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Meaning of "employee"
4 (1) For the purposes of this Act, "employee" means—

(a) a person who is employed for remuneration under a
contract of employment;

(b) any other person who performs services for another
person for remuneration on such terms and conditions
that his relationship with that person more closely
resembles that of an employee than an independent
contractor;

but does not include a person who falls within subsection (2).

(2) The following persons are not employees for the purposes of
this Act—

(a) a person who is under the age of sixteen years;

(b) a casual worker;

(c) a part-time employee;

(d) a temporary employee;

(e) a student;

(f) a voluntary worker;

(g) such other class of persons as may be prescribed by
regulations.

(3) For the purposes of subsection (2)—

"casual worker" means a person who works from time to time for
remuneration for one or more employers, but who does not
seek the rights and obligations of a contract of employment;

"part-time employee" means a person who is employed by an
employer for less than fifteen hours a week;

"student" means a person who is, by virtue of section 1(3) of the
Contributory Pensions Act 1970 (students employed in
vacation etc), deemed not to be an employed person for the
purposes of that Act;

"temporary employee" means a person who is employed for no
more than three months in any year by an employer;

"voluntary worker" means a person who works on a voluntary
basis for a charity or other philanthropic organisation.

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(4) Regulations made pursuant to subsection (2)(g) shall be
subject to the affirmative resolution procedure.

Meaning of "continuous employment"
5 (1) An employee's period of continuous employment shall begin
from and include the first day on which he begins to work for an
employer (including any probationary period) and shall continue up to
and including the date of termination.

(2) It shall be presumed, unless the contrary is shown, that the
employment of an employee is continuous.

(3) An employee's period of continuous employment shall be
deemed to continue during any period of absence from work—

(a) due to his taking leave, whether annual leave, maternity
leave, sick leave or any other leave in accordance with
this Act or his contract, provided that any period of sick
leave does not extend beyond four weeks;

(b) due to his suspension, with or without pay, in
accordance with this Act or his contract;

(c) due to the termination of his contract, if he is reinstated
or re-engaged under Part V;

(d) due to an inability to work on account of an
occupational disease or accident resulting from that
employment;

(e) due to a lock-out;

(f) by agreement with his employer.

(4) Periods of short term contracts granted in succession with
less than thirty day intervals shall count for the purpose of calculating
the period of continuous employment.

(5) Acceptance of severance pay by an employee shall terminate
his period of continuous employment.

(6) Where a business is sold, transferred or otherwise disposed
of, the period of employment with the former employer shall be deemed
to constitute a single period of employment with the successor employer,
if the employment was not terminated and severance pay was not paid
pursuant to this Act.

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PART II
CONDITIONS OF EMPLOYMENT

Statement of employment
6 (1) Not later than one week after an employee begins
employment with an employer, the employer shall give to the employee a
written statement of employment which shall be signed and dated by the
employer and employee.

(2) The statement shall contain particulars of the following—

(a) the full names of the employer and employee;

(b) the date when the employment began;

(c) the job title and brief description of the work for which
the employee is employed;

(d) the place or places of work;

(e) the gross wage or the method of calculating it, and the
intervals at which it is to be paid;

(f) the normal days and hours of employment or, where the
job involves shift work, the normal pattern of the shifts;

(g) the entitlement to holidays, including public holidays,
and paid annual vacation;

(h) the terms relating to incapacity for work due to sickness
or injury, including provision for sick leave;

(i) the length of notice which the employee is obliged to
give, and entitled to receive, to terminate his contract of
employment;

(j) details of any pension provided, whether under the
National Pension Scheme (Occupational Pensions) Act
1998 or otherwise;

(k) any disciplinary and grievance procedures applicable;

(l) where the employment is not expected to be permanent,
the period for which it is expected to continue or, if it is
for a fixed term, the date on which it is to end;

(m)any probationary period;

(n) any dress code;

(o) the existence of any collective agreement which directly
affects the terms and conditions of the employment;

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(p) such other matters as may be prescribed;

and may contain other details relating to the terms and conditions of
employment.

(3) Where there are no particulars to be entered under
paragraphs (k) to (o) of subsection (2), that fact shall be noted in the
statement.

(4) The statement may refer the employee for particulars of the
matters mentioned in paragraphs (g) to (k) and (n) of subsection (2) to—

(a) the provisions of any collective agreement which directly
affects the terms and conditions of his employment; or

(b) to any other relevant document,

which is copied to the employee.

(5) Where—

(a) additional matters to be included in the statement are
prescribed under paragraph (p) of subsection (2); or

(b) the employer and employee agree to change any of the
terms of employment particularised in the statement;

the employer shall, as soon as practicable and no later than one month
after the matters are prescribed or the change agreed, give to the
employee an amendment to the statement containing particulars of the
change or a revised statement which shall (in either case) be signed and
dated by the employer and employee.

Itemised pay statement
7 (1) An employer shall give to each of his employees a written
itemised pay statement, at or before the payment of any wages.

(2) The statement shall contain particulars of—

(a) the period of time or the work for which the wages are
being paid;

(b) the rate of wages to which the employee is entitled and
the number of hours worked, where the number of
hours worked varies from week to week;

(c) the gross amount of wages to which the employee is
entitled;

(d) the amount and purpose of any deduction made from
that amount;

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(e) any bonus, gratuity, living allowance or other payment
to which the employee is entitled; and

(f) the net amount of money being paid to the employee.

Unauthorised deductions
8 (1) An employer shall not make a deduction from an employee's
wages unless—

(a) the deduction is required or authorised to be made by
virtue of this or any other enactment, a collective
agreement or a provision of the employee's contract, or
by order of any court or tribunal; or

(b) the employee has previously signified in writing his
agreement or consent to the making of the deduction.

(2) Where the total amount of wages paid on any occasion by
an employer to an employee is less than the total amount payable on
that occasion, the amount of the deficiency shall be treated as a
deduction for the purposes of subsection (1).

(3) Subsection (1) does not apply—

(a) where the purpose of the deduction is the
reimbursement of the employer in respect of an
overpayment of wages or an overpayment in respect of
expenses incurred by the employee in carrying out his
employment;

(b) to a deduction made in consequence of any disciplinary
proceedings which were held by virtue of this or any
other enactment;

(c) to a deduction made in consequence of an employee's
participation in a strike or irregular industrial action
short of a strike that results in a withdrawal of labour.

Overtime
9 (1) Any hours worked by an employee in excess of forty hours a
week shall either—

(a) be paid at the overtime rate; or

(b) be paid at the employee's normal hourly wage and
compensated by giving him the same number of hours
time off in lieu.

(2) Subsection (1) shall not apply—

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(a) where the employee is a professional or managerial
employee whose statement of employment indicates that
his annual salary has been calculated to reflect the fact
that his regular duties are likely to require him to work,
on occasion, more than forty hours a week; or

(b) in any other case where the employer and employee
agree that it shall not apply.

(3) For the purposes of this section, the Minister may, after
consulting the Labour Advisory Council, modify the effect of subsection
(1) by prescribing a different number of hours for specified types of
employer or employee, and in doing so shall take into account such
matters as he considers relevant, including—

(a) the seasonal nature of the work; and

(b) the effect of the different number of hours on the health
and safety of employees and the public.

(4) Regulations made pursuant to subsection (3) shall be
subject to the affirmative resolution procedure.

Rest days
10 (1) An employer shall provide each employee with a rest period
of at least twenty-four consecutive hours in each week.

(2) Subsection (1) shall not apply to—

(a) police officers;

(b) prison officers;

(c) fire officers;

(d) medical practitioners and nurses employed at the
hospitals, as defined by the Bermuda Hospitals Board
Act 1970; and

(e) such other classes of employee as may be prescribed for
the purposes of this section.

PART III
TIME OFF

Public holidays
11 (1) In this section, "public holiday" has the meaning given in
the Public Holidays Act 1947, but does not include any Sunday which
would not otherwise be a public holiday by virtue of that Act.

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(2) Subject to this section, an employer shall grant every
employee a holiday with pay on each public holiday falling within any
period of employment.

(3) Where a public holiday falls on an employee's rest day, the
employer shall grant him a holiday with pay on—

(a) the working day immediately following the public
holiday; or

(b) such other day as may be agreed by the employer and
employee.

(4) Where an employee is required to work on a public holiday,
the employer shall—

(a) pay that employee at a rate at least equal to the overtime
rate; or

(b) pay that employee at his regular rate of wages and grant
him a holiday with pay on such other day as may be
agreed by the employer and employee.

(5) An employer shall not be obliged to pay an employee in
respect of a public holiday if the employee does not work on his working
day immediately preceding and his working day immediately following
the public holiday, unless he was on annual leave or sick leave on such a
day.

(6) This section shall not apply where the employer and
employee agree otherwise.

Annual vacation
12 (1) An employee shall be entitled to a period of two weeks
annual vacation after he has completed—

(a) the first year of continuous employment; and

(b) each subsequent year of continuous employment,

but such periods of vacation are not cumulative.

(2) An employer shall, where practicable, grant an employee's
request to take his annual vacation at a particular time, subject to the
requirements of the business and to requests for vacation by other
employees.

(3) An employee shall be entitled to a week's wages for each
week of his annual vacation which shall, where so requested by the
employee and where practicable, be paid in advance of the vacation.

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Public duties
13 (1) Subject to the requirements of the business, an employer
shall, where practicable, permit an employee to take such time off during
his working hours as is reasonable in the circumstances to attend a
meeting of any of the following bodies of which he is a member, or to do
anything approved by the body for the purpose of discharging its
functions—

(a) any Government Board;

(b) the Bermuda Regiment;

(c) the Reserve Police;

(d) the Senate or House of Assembly;

(e) such other body as may be prescribed.

(2) An employer shall permit an employee who has been
summoned for jury service or summoned to attend court as a witness to
take such time off during his working hours as is necessary to discharge
his duty.

(3) An employer shall permit an employee to take such time off
during his working hours as is necessary in order for him to vote in a
parliamentary election, within the meaning of the Parliamentary Election
Act 1978.

(4) An employee who has completed at least one year of
continuous employment is entitled to be paid at his normal hourly wage
for time taken off under this section; but where the employee receives
any payment in connection with his duties, the employer shall be entitled
to deduct the equivalent amount from any wages payable by virtue of
this subsection.

Sick leave
14 (1) An employee who has completed at least one year of
continuous employment shall be entitled to be paid at his normal hourly
wage in respect of eight days per year when he is unable to work due to
sickness or injury.

(2) An employee shall not be entitled to be paid in respect of a
period of two or more consecutive days unless, where his employer so
requests, the employee provides the employer with a certificate from a
registered medical practitioner certifying that the practitioner has
examined the employee and determined that he is unable to work due to
sickness or injury.

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Ante-natal care
15 (1) An employee who is pregnant and who has, on the advice of
a registered medical practitioner, made an appointment to receive ante-
natal care, is entitled to take time off during her working hours to attend
the appointment.

(2) An employee is not entitled to take time off under this
section unless, where her employer so requests, she produces a
certificate from a registered medical practitioner confirming that she is
pregnant, and an appointment card or some other document showing
that the appointment has been made.

(3) An employee who has completed at least one year of
continuous employment is entitled to be paid at her normal hourly wage
for time taken off under this section.

Maternity leave
16 (1) An employee shall be entitled to maternity leave if she—

(a) provides her employer with a certificate of a registered
medical practitioner certifying that she is pregnant and
specifying the estimated date of the birth; and

(b) submits to the employer an application for maternity
leave at least four weeks before the day she specifies as
the day on which she intends to commence her leave.

(2) The period of maternity leave shall be—

(a) in relation to an employee who has completed at least
one year of continuous employment or will have done so
by the expected date of delivery, a period of twelve
weeks, consisting of eight weeks paid leave and four
weeks unpaid leave;

(b) in any other case, a period of eight weeks unpaid leave.

(3) An employee who has taken a period of maternity leave
shall notify her employer at least two weeks in advance of the date on
which she intends to resume work, and she shall be entitled to resume
work—

(a) in the position she occupied at the time the leave
commenced; or

(b) where that position no longer exists, in a comparable
position with not less than the same wages and benefits
she was receiving before the maternity leave,

and with no loss of seniority.

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(4) An employee who fails to notify her employer in accordance
with subsection (3) shall be taken to have terminated her employment.

Bereavement leave
17 (1) In this section, any reference to a person's immediate family
shall be taken to be a reference to—

(a) his spouse, child, parent or sibling; or

(b) any other person with whom he was sharing a
household (other than by reason only of a landlord-
tenant or employer-employee relationship).

(2) An employer shall grant to an employee a leave of absence
of up to—

(a) three consecutive days on the death of a member of the
employee's immediate family; or

(b) five consecutive days in order to attend the funeral of a
member of the employee's immediate family overseas.

(3) An employee shall advise the employer as soon as possible
after the death in question of his intention to take bereavement leave
under this section and of the anticipated commencement date and
duration of the leave.

(4) An employer shall not be obliged to pay an employee in
respect of a period of bereavement leave.

PART IV
TERMINATION OF EMPLOYMENT

General provisions

Termination of employment
18 (1) Except as otherwise provided by sections 25 to 27, an
employee's contract of employment shall not be terminated by an
employer unless there is a valid reason for termination connected with—

(a) the ability, performance or conduct of the employee; or

(b) the operational requirements of the employer's business,

and unless the notice requirements of section 20 have been complied
with.

(2) Subsection (1) does not apply where an employee is
employed—

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(a) for a fixed period of time which has expired;

(b) for the duration of a project which is complete.

(3) An employee's contract of employment may be terminated
by the employee for any reason in accordance with the notice
requirements of section 20.

Probationary period
19 (1) A new employee may be required to serve a probationary
period.

(2) During the probationary period, the employer or employee
may terminate the contract of employment for any reason and without
notice.

Notice periods
20 (1) A contract of employment may be terminated in accordance
with this Part by the employer on giving the following minimum periods
of notice in writing ("the statutory notice periods")—

(a) one week, where the employee is paid each week;

(b) two weeks, where the employee is paid every two weeks;

(c) one month, in any other case.

(2) The statutory notice periods shall not apply—

(a) where the employer is entitled to summarily dismiss an
employee under this Act;

(b) where the employee has reached the age at which he is
required to retire, pursuant to his contract or otherwise;

(c) where periods of notice are regulated by contract, by
collective agreement or otherwise by agreement between
the employer and employee;

(d) where the giving of longer periods of notice is customary
given the nature and functions of the work performed by
the employee.

(3) A notice of termination shall not be given by an employer
during an employee's absence—

(a) on annual vacation, maternity leave or bereavement
leave;

(b) on sick leave, unless the period of sick leave extends
beyond four weeks.

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(4) An employee shall give his employer the statutory notice
period to terminate his contract of employment unless—

(a) the employer waives his right to notice;

(b) a longer notice period applies by contract, by collective
agreement or otherwise by agreement between the
employer and employee; or

(c) the giving of longer periods of notice is customary given
the nature and functions of the work performed by the
employee.

Payment in lieu of notice
21 (1) In lieu of providing notice of termination of employment in
accordance with section 20, an employer may, at his discretion, pay an
employee a sum equal to the wages and other remuneration and confer
on him all other benefits that would have been due up to the expiry of
any required period of notice.

(2) Where an employee terminates his contract of employment
without notice in circumstances in which notice was required, and his
employer has not waived the right to notice, the employee shall be
entitled only to such wages and other remuneration which accrued at the
date of termination.

Certificate of termination
22 On the termination of a contract of employment, an employer, if
so requested by his employee, shall provide the employee with a
certificate of termination indicating—

(a) the name and address of the employer;

(b) the nature of the employer's business;

(c) the length of the employee's period of continuous
employment;

(d) the capacity in which the employee was employed;

(e) the wages and other remuneration payable at the date of
termination of the contract;

(f) where the employee so requests, the reason for the
termination.

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Severance allowance
23 (1) On termination of his employment, an employee who has
completed at least one year of continuous employment shall be entitled
to be paid severance allowance by his employer.

(2) For the purposes of subsection (1), the amount of severance
allowance payable to an employee shall be no less than the equivalent
of—

(a) two weeks wages, for each completed year of continuous
employment up to the first ten years;

(b) three weeks wages for each completed year of
continuous employment thereafter;

up to a maximum of 26 weeks wages.

(3) For the purposes of subsection (1), termination of
employment means termination by reason of—

(a) redundancy;

(b) the winding up or insolvency of an employer;

(c) the death of an employer;

(d) the death of an employee from an occupational disease
or accident resulting from that employment.

(4) Severance allowance is not payable where an employee—

(a) unreasonably refuses to accept an offer of re-
employment by the employer at the same place of work
under no less favourable terms than he was employed
immediately prior to the termination;

(b) is employed by a partnership and his employment
ceases on the dissolution of the partnership and—

(i) he enters into employment with one or more of
the partners immediately after the dissolution,
or

(ii) he unreasonably refuses to accept an offer of re-
employment by any of the partners under no
less favourable terms than he was employed
immediately prior to the termination;

(c) is employed by an employer who dies and—

(i) he enters into employment with the personal
representative, widow, widower or any heir of the

EMPLOYMENT ACT 2000

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deceased employer immediately after the death,
or

(ii) he unreasonably refuses to accept an offer of re-
employment by such a person under no less
favourable terms than he was employed
immediately prior to the death.

(5) Where the contract of employment is terminated by reason
of the death of the employee—

(a) the severance allowance shall be paid to such person as
the employee may have nominated in writing or, in the
absence of such a person, to his estate representative;
and

(b) the employer shall be entitled to set off any life
insurance which has been provided to the employee
under his contract of employment.

(6) The payment of severance allowance under this section
shall not affect an employee's entitlement—

(a) to payment in lieu of notice under section 21; or

(b) to compensation under Part V.

Misconduct etc

Disciplinary action
24 (1) An employer shall be entitled to take disciplinary action,
including giving an employee a written warning or suspending an
employee, when it is reasonable to do so in all the circumstances.

(2) No employer may impose a fine or other monetary penalty
on an employee except in cases where a requirement of restitution would
be appropriate and where agreed on between the parties.

(3) In deciding what is reasonable for the purposes of
subsection (1), regard shall be had to—

(a) the nature of the conduct in question;

(b) the employee's duties;

(c) the terms of the contract of employment;

(d) any damage caused by the employee's conduct;

(e) the employee's length of service and his previous
conduct;

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(f) the employee's circumstances;

(g) the penalty imposed by the employer;

(h) the procedure followed by the employer; and

(i) the practice of the employer in similar situations.

(4) A complaint that disciplinary action is unreasonable may be
made to an inspector under section 36.

Summary dismissal for serious misconduct
25 An employer is entitled to dismiss without notice or payment of
any severance allowance an employee who is guilty of serious
misconduct—

(a) which is directly related to the employment relationship;
or

(b) which has a detrimental effect on the employer's
business,

such that it would be unreasonable to expect the employer to continue
the employment relationship.

Termination for repeated misconduct
26 (1) Where an employee is guilty of misconduct which is directly
related to the employment relationship but which does not fall within
section 25, the employer may give him a written warning.

(2) If, within six months of the date of the warning, the
employee is again guilty of misconduct falling within subsection (1), the
employer may terminate the employee's contract of employment without
notice or the payment of any severance allowance.

(3) An employer shall be deemed to have waived his right to
terminate under subsection (2) if he does not do so within a reasonable
period of time after having knowledge of the repeated misconduct.

Termination for unsatisfactory performance
27 (1) Where an employee is not performing his duties in a
satisfactory manner, the employer may give him a written warning and
appropriate instructions as to how to improve his performance.

(2) If the employee does not, during the period of six months
beginning with the date of the written warning, demonstrate that he is
able to perform his duties in a satisfactory manner and is in fact doing
so, the employer may terminate his contract of employment without
notice or the payment of any severance allowance.

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20

Unfair dismissal

Unfair dismissal
28 (1) The following do not constitute valid reasons for dismissal
or the imposition of disciplinary action—

(a) an employee's race, sex, religion, colour, ethnic origin,
national extraction, social origin, political opinion,
disability or marital status;

(b) an employee's age, subject to any other enactment or
any relevant collective agreement regarding retirement;

(c) any reason connected with an employee's pregnancy,
unless it involves absence from work which exceeds
allocated leave entitlement;

(d) an employee's trade union activity;

(e) an employee's temporary absence from work because of
sickness or injury, unless it occurs frequently and
exceeds allocated leave entitlement;

(f) an employee's absence from work for any of the reasons
mentioned in section 13 (public duties), or due to service
as a volunteer fire officer;

(g) an employee who removes himself from a work situation
which he reasonably believes presents an imminent and
serious danger to life or health;

(h) an employee's participation in any industrial action
which takes place in conformity with the Labour
Relations Act 1975;

(i) the filing of a complaint or the participation in
proceedings against an employer involving alleged
violations of this Act.

(2) The dismissal of an employee is unfair if it is based on any
of the grounds listed in subsection (1).

Constructive dismissal
29 (1) An employee is entitled to terminate his contract of
employment without notice where the employer's conduct has made it
unreasonable to expect the employee to continue the employment
relationship, having regard to the employee's duties, length of service
and circumstances.

EMPLOYMENT ACT 2000

21

(2) An employee who terminates his contract pursuant to
subsection (1) shall be deemed to have been unfairly dismissed for the
purposes of this Act.

Redundancy etc

Termination for redundancy
30 (1) An employer may terminate the employment of an employee
who is redundant.

(2) An employee is redundant for the purposes of this Act,
where the termination of his employment is, or is part of, a reduction in
the employer's work force which is a direct result of any of the conditions
of redundancy.

(3) The following are the conditions of redundancy—

(a) the modernisation, mechanisation or automation of all
or part of the employer's business;

(b) the discontinuance of all or part of the business;

(c) the sale or other disposal of the business;

(d) the reorganisation of the business;

(e) the reduction in business which has been necessitated
by economic conditions, contraction in the volume of
work or sales, reduced demand or surplus inventory;

(f) the impossibility or impracticality of carrying on the
business at the usual rate or at all due to—

(i) shortage of materials;

(ii) mechanical breakdown;

(iii) act of God; or

(iv) other circumstances beyond the control of the
employer.

(4) Before terminating the employment of an employee for
redundancy, the employer shall, as soon as practicable—

(a) inform the employee's trade union or other
representative (if any) of the following information—

(i) the existence of the relevant condition of
redundancy;

(ii) the reasons for the termination contemplated;

EMPLOYMENT ACT 2000

22

(iii) the number and categories of employees likely to
be affected; and

(iv) the period over which such termination is likely
to be carried out; and

(b) consult the employee's trade union or other
representative (if any) on—

(i) the possible measures that could be taken to
avert or minimise the adverse effects of such
redundancy on employment; and

(ii) the possible measures that could be taken to
mitigate the adverse effects of any termination
on the employees concerned.

Effect of sham sale
31 (1) Where one of the purposes of a sale or other disposition of a
business is—

(a) to enable an employer to avoid any of his obligations
under this Act; or

(b) to deprive any employee of his rights under this Act,

all of the employer's obligations under this Act are binding on the person
acquiring the business.

(2) Nothing in this section shall be taken to restrict an
employer from making a bona fide sale of his business.

Lay off
32 (1) An employer shall not lay off an employee except in
accordance with this Act.

(2) Where any of the conditions of redundancy exist, an
employer may lay off an employee for a continuous period not exceeding
four months.

(3) Where the lay off continues for a period which exceeds four
months, it shall be deemed to be a termination for redundancy pursuant
to section 30.

Winding up
33 (1) The winding up or insolvency of an employer's business
shall cause the contract of employment of an employee to terminate one
month from the date of winding up or the appointment of a receiver,
unless the contract is otherwise terminated under this Part.

EMPLOYMENT ACT 2000

23

(2) This section shall not apply where, notwithstanding the
winding up or insolvency, the business continues to operate.

(3) Subject to section 232 of the Companies Act 1981 (expenses
of liquidation), but notwithstanding section 236 of that Act (priority of
creditors) or any other enactment, on the winding up of an employer's
business or the appointment of a receiver, the claim of an employee to
wages and other payments due under his contract or under this Act
shall have priority over all other creditors, including the Crown.

PART V
ENFORCEMENT

Inspectors
34 The Minister shall designate persons to be inspectors for the
purpose of the enforcement of this Act and shall give every such person a
certificate of his designation signed by the Minister and the person so
designated.

Employment Tribunal
35 (1) The Employment Tribunal is hereby established.

(2) The Tribunal shall have jurisdiction to hear and determine
complaints and other matters referred to it under this Act.

(3) The Schedule shall have effect with respect to the
constitution of, and proceedings before, the Tribunal.

Right to complain to inspector
36 (1) An employee shall have the right to make a complaint in
writing to an inspector that his employer has, within the preceding three
months, failed to comply with any provision of this Act.

(2) A complaint may be made under this section by a trade
union or other representative group on behalf of an employee.

(3) Where a group of employees having the same or
substantially the same interests has a complaint pursuant to this Act,
one complaint may be made in a representative capacity.

Inquiry by inspector
37 (1) Where an inspector—

(a) receives a complaint under section 36; or

(b) has reasonable grounds to believe that an employer has
failed to comply with any provision of this Act,

EMPLOYMENT ACT 2000

24

the inspector shall, as soon as practicable, inquire into the matter.

(2) If, for the purposes of an inquiry under this Act, an
inspector requires information which the employer, employee or any
other person is likely to be able to supply, the inspector may, by notice in
writing, require that person—

(a) to supply that information; and

(b) to produce such documents as may be specified and
permit the inspector to take copies,

on such date or within such period of time as may be specified in the
notice.

(3) After making such inquiries as he considers necessary in
the circumstances, the inspector shall endeavour to conciliate the parties
and to effect a settlement by all means at his disposal.

(4) Where the inspector—

(a) has reasonable grounds to believe that an employer has
failed to comply with any provision of this Act; but

(b) is unable to effect a settlement under subsection (3),

he shall refer the complaint to the Tribunal.

(5) Where, in relation to an employer, any relevant grievance
procedure is established (whether under a contract of employment,
collective agreement or otherwise) to deal with employees' complaints, the
inspector shall not, except with the consent of all parties, attempt to
settle the complaint under this section or refer the complaint to the
Tribunal unless and until there has been a failure to obtain a settlement
by means of that procedure.

Hearing of complaints by Tribunal
38 (1) As soon as practicable after the inspector has referred a
complaint to the Tribunal, it shall hold a hearing and give the employer
and employee, or their representatives, full opportunity to present
evidence on oath and make submissions.

(2) In any claim arising out of the dismissal of an employee it
shall be for the employer to prove the reason for the dismissal, and if he
fails to do so there shall be a conclusive presumption that the dismissal
was unfair.

(3) Where the employee claims constructive dismissal it shall
be for him to prove the reason which made continuation of the
employment relationship unreasonable.

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25

Remedies: general
39 (1) Where the Tribunal determines that an employer has
contravened a provision of this Act, it shall notify the employer and
employee in writing of the reasons for its determination and shall order
the employer—

(a) to do any specified act which, in the opinion of the
Tribunal, constitutes full compliance with this Act;

(b) pay to the employee not later than such date as may be
specified in the notice, the amount which the Tribunal
has determined represents any unpaid wages or other
benefits owing to the employee.

(2) Where the Tribunal determines that an employer has not
contravened a provision of this Act, it shall notify the employer and
employee in writing of the reasons for its determination.

Remedies: unfair dismissal
40 (1) If the Tribunal upholds an employee's complaint of unfair
dismissal, it shall award one or more of the following remedies—

(a) an order for reinstatement, whereby the employee is to
be treated in all respects as if he had never been
dismissed;

(b) an order for re-engagement, whereby the employee is to
be engaged in work comparable to that in which he was
engaged prior to dismissal, or other reasonably suitable
work, from such date and on such terms as may be
specified in the order or agreed by the parties;

(c) a compensation order in accordance with subsection (4).

(2) In deciding which remedy to award, the Tribunal shall first
consider the possibility of making an order of reinstatement or re-
engagement, taking into account the wishes of the parties and the
circumstances in which the dismissal took place, including the extent (if
any) to which the employee caused or contributed to his dismissal.

(3) Where the Tribunal finds that the employee engaged in
misconduct notwithstanding the unlawful nature of the dismissal, it may
include a disciplinary penalty as a term of the order for reinstatement or
re-engagement.

(4) A compensation order shall, subject to subsection (5), be of
such amount as the Tribunal considers just and equitable in all the
circumstances, having regard—

EMPLOYMENT ACT 2000

26

(a) to the loss sustained by the employee in consequence of
the dismissal in so far as that loss is attributable to
action taken by the employer; and

(b) the extent to which the employee caused or contributed
to the dismissal.

(5) The amount of compensation ordered to be paid shall be not
less than—

(a) two weeks wages for each completed year of continuous
employment, for employees with no more than two
complete years of continuous employment;

(b) four weeks wages for each completed year of continuous
employment, in other cases,

up to a maximum of 26 weeks wages.

Appeals
41 (1) A party aggrieved by a determination or order of the
Tribunal may appeal to the Supreme Court on a point of law.

(2) An appeal under subsection (1) shall be lodged in the
Registry within twenty-one days after receipt of notification of the
determination or order, or such longer period as the Supreme Court may
allow.

(3) On any such appeal, the Supreme Court may make such
order, including an order as to costs, as it thinks fit.

(4) Section 62 of the Supreme Court Act 1905 shall be deemed
to extend to the making of rules under that section to regulate the
practice and procedure on an appeal under this section.

(5) The lodging of an appeal under this section shall act as a
stay of any order of the Tribunal.

Binding determination or order
42 Any determination or order made by the Tribunal shall be
binding on the employer or any person succeeding (whether by virtue of
a sale or other disposition or by operation of law) to the ownership or
control of the business and the employee to whom the determination or
order relates.

Report by Tribunal
43 The Chairman of the Tribunal shall, from time to time and at
least once in each calendar year, submit to the Minister a report setting

EMPLOYMENT ACT 2000

27

out determinations and orders made by Tribunal under this Part; but
any such report shall not reveal the names of any of the parties affected.

Offences
44 (1) A person who—

(a) fails, without reasonable cause, to comply with a
requirement under section 37(2);

(b) in purported compliance with a requirement under
section 37(2), supplies information which he knows is
false in a material particular; or

(c) fails to comply with an order of the Tribunal made under
this Part,

shall be guilty of an offence and liable on summary conviction to a fine of
$10,000.

(2) Where an offence under this Act which has been committed
by a body corporate is proved to have been committed with the consent,
knowledge or connivance of a director, manager, secretary or other simi-
lar officer of the body corporate, or any person who is purporting to act
in any such capacity, he, as well as the body corporate commits that of-
fence and shall be liable to be proceeded against and punished
accordingly.

PART VI
SUPPLEMENTARY

Regulations
45 (1) The Minister may make such regulations as he considers
necessary or expedient to give effect to this Act, and regulations may
make different provision for different cases.

(2) Regulations under this section shall be made subject to the
negative resolution procedure.

Crown application
46 This Act binds the Crown.

Amendment of Labour Relations Act 1975
47 In section 1 of the Labour Relations Act 1975 (interpretation), at
the end of the definition of "labour dispute" there shall be added—

"but shall not include any matter which was the subject of a
complaint which has been settled by an inspector or determined
by the Employment Tribunal under the Employment Act 2000;".

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28

Transitional provisions
48 (1) For the purposes of this section—

"commencement date" means the date appointed under
section 1;

"existing employee" means a person who was employed
immediately before the commencement date;

"transitional period" means the period of one year beginning
with the commencement date.

(2) For the purposes of section 5, an existing employee's period
of continuous employment shall be deemed to begin from and include
the first day on which he began to work for his employer,
notwithstanding that that day was before the commencement date.

(3) In relation to existing employees, subsection (1) of section 6
shall have effect as if the following were substituted—

"(1) An employer shall, before the end of the transitional
period, give to each of his existing employees a written statement
of employment which shall be signed and dated by the employer
and employee.

(1A) Subject to any additional requirements of this Act, the
terms and conditions of employment evidenced in the written
statement shall be at least as beneficial to the employee as the
terms and conditions on which he was employed immediately
before the commencement date."

(4) No complaint made under section 36 shall be entertained
by an inspector in so far as it relates to any alleged contravention of this
Act by an employer in relation to an existing employee during the
transitional period.

SCHEDULE (section 35)

THE EMPLOYMENT TRIBUNAL

Constitution of Tribunal

1 (1) The Tribunal shall consist of a Chairman, a Deputy
Chairman and a panel of not more than twelve members, appointed by
the Minister by notice published in the Gazette.

(2) Before exercising his powers under subparagraph (1), the
Minister shall consult such trade unions and other organisations as

EMPLOYMENT ACT 2000

29

appear to him to be representative of the views of employers and
employees.

(3) For the purpose of determining any complaint or other
matter referred to the Tribunal under this Act, the Tribunal shall be
composed of—

(a) the Chairman or Deputy Chairman;

(b) one or two members selected by the Chairman to
represent the interests of employers; and

(c) the same number of members selected by the Chairman
to represent the interests of employees.

Appointments

2 (1) The Chairman and Deputy Chairman of the Tribunal shall
hold office for a period of three years, and may be reappointed from time
to time for a like period.

(2) No person shall be qualified to be the Chairman or Deputy
Chairman unless—

(a) he is a barrister and attorney of at least five years
standing; or

(b) he has considerable experience in labour relations.

(3) The members of the panel shall hold office for a period of
two years, and may be reappointed from time to time for a like period.

(4) The Minister may at any time, by notice published in the
Gazette, appoint a person to act in the place of any member of the panel
who is absent from Bermuda or who is for any reason incapacitated, but
shall not appoint a person to act as Chairman or Deputy Chairman
unless that person is himself qualified under subparagraph (2).

(5) The Chairman, Deputy Chairman or any member of the
panel may at any time, except during the course of proceedings before
them under this Act, resign his appointment by notice in writing ad-
dressed to the Minister.

(6) The Chairman, Deputy Chairman and members of the panel
shall be entitled to receive out of the funds appropriated by the
Legislature for the purpose such fees and allowances as the Minister may
determine.

EMPLOYMENT ACT 2000

30

Vacancies

3 Where, during any proceedings, a vacancy occurs in the
membership of the Tribunal it may, with the consent of all parties,
continue to act notwithstanding the vacancy; and no act, proceeding or
determination of a Tribunal shall be called in question or invalidated by
reason of the vacancy.

Assessors

4 In any proceedings the Chairman or Deputy Chairman of the
Tribunal may, if he thinks fit, summon to the assistance of the Tribunal
any person of skill and experience in the matter to which the proceedings
relate who is willing to assist the Tribunal as an assessor.

Tribunal autonomous

5 In the exercise of the powers conferred on it by this Act, the
Tribunal shall not be subject to the direction or control of any other
person or authority.

Proceedings

6 Parties to any proceedings before the Tribunal may appear
personally or be represented, by counsel or otherwise.

7 The Tribunal may impose reporting restrictions where it
considers it necessary or desirable to protect the privacy of parties to a
hearing.

8 The Arbitration Act 1986 shall not apply to any proceedings of
the Tribunal or to any award made by it.

9 Save as otherwise provided by any provision of this Act or in
regulations made by the Minister regulating the procedure to be followed
by the Tribunal, the Tribunal shall regulate its own proceedings as it
thinks fit.