The two pillars of Bermuda’s Employment and Labour Code are the Employment Act 2000 (“EA 2000”) and the Trade Union and Labour Relations (Consolidation) Act 2021 (“TULRCA 2021”). Complaints under the Code are tried before the Employment and Labour Relations Tribunal (“Tribunal”), which is a newly fused jurisdiction that amalgamates several previous bodies. One of the most common complaints is the claim for unfair dismissal. Where such a claim is upheld, section 40 of EA 2000 provides that the Tribunal “shall award one or more” of the following: reinstatement, re-engagement or compensation. Compensation is assessed on a “just and equitable” basis, but cannot exceed a maximum of 26 weeks’ wages by reason of the provisions of section 40 (5) of EA 2000, as interpreted by the Supreme Court in Coralisle Group Ltd v Caesar [2021] SC (Bda) 23 App (23 March 2021). This relatively low cap provides incentive for employees (and perhaps for a tribunal) to innovate, in order to maximise claims. Efforts to test the limits of the Tribunal’s remedial jurisdiction have posed challenging questions concerning the appropriate construction of Bermuda’s Employment and Labour Code.
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