Redundancy Dismissals: Fairness And Genuineness Should Be Established

November 2019 – The Maldives High Court heard the appeals in three important employment related cases; Ahmed Hashim v Attorney General’s Office 2017/HC-A/186, Ismail Farish v Attorney General’s Office 2017/HC-A/187 and Ibrahim Khalid v State (Department of Judicial Administration) 2017/HC-A/184. The appeals heard separately but disposed of by the same judgments are guaranteed to take its place in the line of authority in redundancy related disputes. In particular, the Court’s judgment will authoritatively determine the fair procedure that an employer must follow when dismissing an employee for redundancy reasons and what counts as a genuine redundancy.

The appeals concerned legal actions brought by three employees against the Department of Judicial Administration (DJA), challenging their redundancies. According to the facts of the cases, all the three employees were made redundant in the year 2016 when the Judicial Academy, formed by a circular of the Supreme Court, replaced the Judicial Training Centre where the employees were employed at the time. At first instance, the three cases were consolidated and heard together at the Employment Tribunal (ET). The ET, however, in all three cases ruled against the employees.

Upon appeal, Hashim’s, Farish’s and Ibrahim’s appeals to the High Court rested on a single proposition, i.e. that the decision of ET was wrong as their dismissals lacked substantive fairness and procedural fairness.

The Attorney General’s Office (AGO) on behalf of the Department of Judicial Academy (DJA), for its part, contended not only that the employees in question were afforded procedural fairness when made redundant, but also attempted to claim that the redundancies of the employees were genuine. According to the AGO, the employees were made redundant pursuant to and in accordance with the section 96(b) of the Regulation of the Employees of the Judiciary 2011, having failed to find alternative employment for the employees, after having made several attempts to find such employments. The AGO further posited that the payment in lieu of notices made to the employees is sufficient to establish that the dismissal of the employees was procedurally fair.

In its judgment, the High Court questioned the fairness and genuineness of the redundancies. For one thing, according to the Judges of the High Court, the attempts made by the DJA to find alternative employment for the employees did not meet the requirement under section 96(b) of the 2011 Regulation for the DJA to make ‘sufficient attempts to find alternative employment at a court or a judicial authority ’ before dismissing an employee. This was more so the case, according to the judges of the High Court, the state could not produce any evidence showing attempts made to find alternative employment in any other senior courts, magistrate courts nor in other judicial authorities.

Although it is likely to be regarded as obiter dictum, the Judges of the High Court also elucidated on the interpretation of Articles 141 and 156 of the Constitution of the Maldives. Article 155 of the Constitution of the Maldives provides for the Parliament of the Maldives with the power to pass laws concerning the administration of the courts. Hence, Articles 141 and 156 of the Constitution of the Maldives must not be interpreted in such a way to afford one public authority with a mandate to bring into existence another authority, unless otherwise such a mandate or legal authority is provided for under an enactment. A further point of interest to highlight is that the judges also delved into the meaning of the word “government” to include both the ‘judiciary’ and the ‘legislature’ along with the ‘executive’. This was perhaps in the spirit of avoiding future confusions arising as a consequence of inconsistent use of terminology.

The appeals were concluded with the High Court ordering the DJA to reinstate the employees to their original positions and if it is not reasonably practicable to do so, to reappoint the employees in similar employment provided that the employees want to be appointed in such employment. Further, the DJA was also ordered to pay the employees their salaries, overtime pay and allowances from the date of dismissal to the date of reinstatement or reappointment.