BAHAMAS Law and Practice Contributed by: Judith Whitehead KC, Graham Thompson
hold a managerial or supervisorial position, or one month’s notice or pay in lieu thereof if such employee does hold such a position. In addition to this notice period (or payment in lieu thereof), the Employment Act places an obli - gation on the part of the employer to pay to the employee a sum representing the product of the dismissed employee’s bi-weekly or monthly sal - ary (depending on their role) and the number of years of such employee’s service. This additional sum is usually referred to as “severance pay”. Severance pay acknowledges the dismissed employee’s years of service and is capped at six years for a non-managerial/non-supervisorial employee and 12 years for a managerial/super - visorial employee. It is significant to note that the Employment Act does not confer an obligation on the part of the employer to give notice to an employee of less than six months′ tenure. Notice of termination can be given verbally. How - ever, the employer must ensure that the notice of termination was properly and unequivocally communicated to the employee and that they exercised their complete obligations upon termi - nation. Thus, the parties’ conduct immediately after termination has been made orally may be evidence of the nature of the notice given. Where notice is not properly given or is insuffi - cient, an employee is entitled to claim damages for wrongful dismissal. Where the employment contract confers a greater benefit on the employee regarding the duration of the notice period or the value of the pay in lieu of notice, then such provisions and/ or benefits will apply. Where no notice period is provided for under the contract of employment,
the calculation set out in the Employment Act will apply. The Employment Act also mandates that employ - ees have a right not to be unfairly dismissed. Whilst the question of whether the dismissal of an employee was fair or unfair is to be deter - mined in accordance with the substantial mer - its of each case the Employment Act provides instances in which a dismissal will be deemed to be unfair which include dismissal: • due to trade union membership, involve - ment in trade union activities or the refusal to become involved in a trade union/engage in trade union activities; • due to pregnancy; and • due to redundancy, but other employees were not similarly dismissed. These categories are not closed and it is impor - tant to note that the rules of natural justice should be applied when seeking to terminate an employee. 4.3 Working Time Under the Employment Act, the maximum num - ber of daily work hours is eight, and weekly work hours is 40, except for employees who hold managerial or supervisorial positions or work in any industrial, construction, manufacturing or transhipment enterprise, or essential service. Employees are also entitled to 48 hours of rest, with at least 24 of such hours being consecutive. Where the relevant employee is required or is permitted to work in excess of their daily work hours, they are entitled to overtime pay, which is calculated at 1.5 times their regular rate of wages and two times the regular rate of wages if the overtime is performed on a holiday.
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