Non-ratified treaty;¹ Instrument not subject to ratification;² Foreign case law³

Dismissal of an employee without valid reason/ Procedure for termination of employment/ Reference to international law as a guide for interpreting domestic law

Ahmed Mohamed, an employee of Maldives Transport and Contracting Company Plc. (MTCC), had been dismissed by the company for alleged professional inadequacy. Upon dismissal, Ahmed Mohamed brought a case against his former employer to the Employment Tribunal claiming unfair dismissal as a result of the absence of a valid reason for dismissal. The tribunal found in favor of the claimant and ordered reinstatement in addition to the payment of salary and other remuneration for the period commencing from the date of dismissal until the delivery of decision of the Tribunal.

Upon appeal of the decision of the Tribunal by MTCC the High Court taking into consideration Article 7 of the ILO Termination of Employment Convention, 1982 (No. 158), and Articles 7, 8, and 9 of the ILO Termination of Employment Recommendation 1982 (No. 166) and the established legal principles of ‘open democratic societies’ such as the United Kingdom, Australia, New Zealand and Canada, ruled that, for a decision to terminate an employee to be deemed fair and just, the employer must prove that the termination was substantially and procedurally fair. The court held that for a dismissal to be substantially fair, the employer has to establish that there was a valid reason for the decision to dismiss and that for the dismissal to be procedurally fair, the employer has to establish that he adopted a fair procedure in dismissing the employee.

The court, heavily borrowing from the principles established by the ILO and the established legal principles of the above mentioned countries for the first time, fashioned the procedure an employer had to follow while dismissing an employee for “reasonable cause” under Clause 21⁴ of the Employment Act⁵. The procedure is as follow:

(a)   Raise the performance issue(s)  with the employee (providing as much details as possible at the time) and allow the employee a chance to respond to the matters raised regarding their performance;

(b)  Advise the employee on what needs to improve and what steps to take in order to improve;

(c)   Set a time frame for improvement, and warn the employee that failure to improve performance within the time frame may result in the dismissal of the employee;

(d)  If the employee fails to improve the performance within the time frame allocated, again allow the employee a chance to respond to the matters regarding performance and the potential dismissal;

(e)  Come to a final decision on the steps to be taken, giving due consideration to the employee’s response to the circumstances of the situation;

(f)    If employer decides to dismiss the employee, advise the employee of the decision, giving reasons for the decision.

In addition to the above steps, the court also held that the employees, if they request, should be given the opportunity to solicit assistance from a person of their choosing.

In light of the above, the High Court upheld the decision of the Employment Tribunal, that the appellant was not able to establish procedural fairness in their decision to dismiss the employee, which procedure was determined taking into account the requirements established by the ILO Convention (No. 158) and the ILO Recommendation (No. 166).

¹ ILO Termination of Employment Convention, 1982 (No. 158).

² ILO Termination of Employment Recommendation 1982 (No. 166).

³ Australia; Canada; New Zealand; United Kingdom.

⁴ Clause relating to dismissals in general (underperforming and noncompliance to acceptable work ethics).

⁵ Act No. 2/2008.