DIANA MAHABIR-WYATT
An interesting case arose recently in which a management employee claimed constructive dismissal before any dismissal took place.
It rested in what contract law refers to as an anticipatory breach, in which the employee assumes he is going to be wrongfully dismissed, so he resigns and then claims that he was forced to resign, because the employer was going to dismiss him without cause.
In the instant case, the employee, having completed satisfactorily the six-month probationary period as a new manager in an HR department of a finance organisation, began to complain about the way he was being treated by his CEO, who did not agree with his opinions or how and when to negotiate contracts.
The employee was a recent mature law graduate from the UK, near the top of his class. He intended to apply for a scholarship to the London School of Economics to do an advanced degree in international relations law and eventually join a UN agency, of which he made no secret.
Not understanding the difference between practical industrial relations (IR) and contract law - assuming, as so many law graduates do, that there is no difference - once his probationary period ended, he began to operate on that assumption.
As an observant Republic Bank manager explained to a gathering of graduating students recently, 'Passing exams does not alone qualify you for entry into a management position. You have to ascend through the fire of effective experience first.' Or wise words to that effect.
Recent huge civil-court awards for unfair dismissal or wrongful dismissal (yes, Virginia, there is a difference) in the TTPS and the Central Bank may have encouraged his expectations and hence his actions.
The distinction between applying for a scholarship and getting the scholarship had eluded him.
As often happens in the private sector, his co-operative relationship with his managers and the CEO began to change post-probation. It changed from oral disagreements over the extent of his authority to making decisions based on his assumption of a level of authority he did not have, then to active implementation of those wrongfully assumed authorities, in less than six months.
Among those decisions were entering into contracts for purchasing goods and contracting services, recruiting professional staff without prior agreement and, in two instances, without subsequent knowledge from the managing director or the board. He was also charged with breaching his fiduciary duties knowingly and willingly, which - as was stated in the statement of case eventually made against him - included but were not limited to duties of care and skill, good faith, loyalty, conflicts of interest and the safeguard of property.
That language alone will indicate to HR professionals that the case, in his instance, after repeated warnings that he was indulging in flagrant misconduct, resulted in his suspension from employment.
Meanwhile, an in-company tribunal made up of three experienced board directors was established, met and by what
