By Any Means Unnecessary: Court Action and the Conciliation Procedure for Unfair Dismissals in the British Virgin Islands

Part V of the Labour Code of the British Virgin Islands seeks to protect certain employees against unfair dismissals and dismissals without just cause in keeping with the principles of the ILO 1963 Recommendation 119 and the 1982 Convention 158 and Recommendation 166 concerning Termination of Employment at the Initiative of the Employer. However, the Code does not expressly provide for direct access to the Court for an employee who alleges that he has been unfairly dismissed. Rather, he is entitled to seek a resolution of the issue by filing a complaint with the Labour Commissioner. If the Labour Commissioner fails to achieve a voluntary settlement after twenty-one days he must transmit the matter to the Labour Minister who shall then attempt to settle it. Should he fail to do so within thirty days, he returns the matter to the parties for, inter alia, "the pursuit of any legal action which may be available to them." In the face of such provision, is a dismissed employee nevertheless entitled to bypass these procedures and commence High Court action or raise unfair dismissal as a defense to an action? The author argues that based on legal principles, there ought to be no such entitlement and analyzes a decision to the contrary. In the second part of the study, the author examines the weakness of the protection against unfair dismissal afforded to Commonwealth Caribbean employees generally and suggests the need for reform. It has never been seriously suggested that the courts, sated with a diet of the weak gruel that is the workers' common law employment rights in the Common­ wealth Caribbean [1], are best placed to protect what might be called the new