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An employer's failure to give the minimum statutory notice period under Section 35 of the Employment Act renders the termination procedurally unfair, regardless of whether substantive grounds for dismissal otherwise existed. The Court held that procedural and substantive fairness are distinct requirements, each independently capable of founding liability.
Background
[1]This appeal concerns the termination of the respondent's employment by the appellant without the notice period required under Section 35 of the Employment Act. The appellant contended that the respondent's conduct gave rise to grounds for summary dismissal. The Employment and Labour Relations Court found in favour of the respondent at first instance, and the appellant appeals against that finding.
[2]The central questions before this Court are: first, whether the failure to give notice under Section 35 is a standalone procedural defect capable of founding a finding of unfair termination; and second, whether the existence of substantive grounds for dismissal can cure a procedural defect of this nature.
Analysis
[3]The Court considers the relationship between Section 35 (notice requirements) and Section 45 (unfair termination) of the Employment Act. The provisions operate together to establish a framework in which both the procedure and the substance of a termination must satisfy the statutory standard. Neither requirement is subordinate to the other.
[4]The appellant's submission that substantive grounds can excuse non-compliance with Section 35 is not supported by the plain text of the Act. Section 44, which permits summary dismissal without notice, provides a specific and exhaustive list of circumstances in which the notice requirement is displaced. Where those circumstances are not established, the requirement under Section 35 applies without qualification.
[5]On the facts found by the court below, which this Court accepts, the appellant did not establish the grounds required for summary dismissal under Section 44. It follows that the notice requirement under Section 35 applied and was not complied with. The termination was accordingly procedurally unfair.
Disposition
[6]The appeal is dismissed. The finding of the Employment and Labour Relations Court that the termination was procedurally unfair is upheld. The question of remedies, including compensation under Section 49 of the Employment Act, is remitted to the court below for determination.
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