A new era in employment practice dawned on March 1 as Bermuda embraced internationally accepted employment standards with the implementation of the Employment Act 2000.

Employers who, at present, have no employment guidelines, or whose standards fail to meet the minimum requirements detailed in the Act, will be required to make significant changes.

Failure to meet these standards will constitute an offence under the Act and the employer may be liable to a fine of $10,000.

The new legislation will apply only to employees in Bermuda. While the definition of an "employee'' is extremely broad, it does not include persons under the age of 16, casual workers, part-time employees, temporary employees, student or volunteer workers.

The most dramatic change to current employment practice will be the requirement to provide all employees with a written statement of employment within one week of commencing employment. An employer must notify employees of any change to this statement within one month.

Where an employee is the subject of a collective bargaining agreement, then that must be incorporated into the terms of employment and reflected in the statement of employment.

Through the use of this document, which will detail specific conditions such as gross wages, holiday entitlement and notice requirements, the Act seeks to formalise employment relationships.

Additionally, employers will be required to provide employees with an itemised pay statement, providing a breakdown of the employee's wage.

This pay statement must be received on, or just before, each pay day and include information such as the period of time worked, the rate of pay and any deductions made. The employer and employee must have previously agreed all deductions.

The Act also provides avenues through which an employer may dismiss an employee, as long as the reasons for doing so are considered fair. Termination on the grounds of race, sex, pregnancy, participation in trade union action, as well as several others, will be presumed unfair.

A contract of employment may also be terminated for repeated misconduct, unsatisfactory performance or serious misconduct.

In the case of serious misconduct, an employee may be dismissed without notice.

However, in order to terminate an employee for repeated misconduct or unsatisfactory performance, an employee must receive two written warnings within a six-month period relating to his conduct.

All employees terminated on the grounds of unsatisfactory performance must first be given written instructions on how to improve their performance.

Employment may also be terminated by the employee claiming constructive dismissal. Constructive dismissal may occur where the employee claims that the conduct of the employer was such as to cause the employee to leave. As an example, this may arise when the employee feels that his employer is guilty of abusive conduct.

The employee must prove this "unreasonable'' behaviour, unlike in all other cases where the employer must prove the reasons for termination.

Employees, who feel that they have been improperly dismissed, may file a complaint with the Inspector, who will be empowered under the Act to investigate the claim.

If the Inspector is unable to find a solution and feels that the complaint warrants further action, he may refer the case to the Employment Tribunal.

He will also have the authority to request, from the parties involved, any information necessary to assist with the investigation. No information may be considered confidential.

The Employment Tribunal will consist of a maximum of 12 individuals. Decisions made by the Tribunal will generally be binding on all parties. However, in some cases an appeal may be made to the Supreme Court from the decision of the Tribunal.

Although not a requirement of the Act, employers may adopt grievance procedures to which employees must first adhere before directing any complaint to the Inspector.

Where a grievance procedure exists, the Inspector will await the outcome before becoming involved.

However, if the Inspector believes there are reasonable grounds for doing so, he may initiate an investigation before a complaint is filed.

Overtime provisions are also addressed by the Act. Any hours worked in excess of 40 per week must either be paid at an overtime rate or additional time off granted.

Overtime covered by law In any other case, except in the case of professional or managerial staff who are required to work overtime "on occasion'', the conditions of overtime must be agreed.

Employees will also be entitled to one continuous 24 hour period of rest per week and must also be given time off to perform public duties (eg Bermuda Regiment).

Many of the benefits detailed in the Act require that the employee work for one year before the full benefit be extended. This applies to annual vacation, sick leave, pre-natal care and maternity leave.

Currently, many employees are required to complete a prescribed term of service after returning from maternity leave. If they fail to do so, they are required to repay the salary received while on maternity leave. This "standard practice'' will not be allowed under the new legislation.

The Employment Act 2000 may not be the antidote to all unfair employment practices in Bermuda, but certainly will provide a foundation on which to build.

Attorney Travis Gilbert is a member of the Company Department at Appleby Spurling & Kempe. Copies of Mr. Gilbert's columns can be obtained on the Appleby Spurling & Kempe website at www.ask.bm.

This column should not be used as a substitute for professional legal advice.

Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.