United Tourist Promotion vs. Kemplin, February 5, 2014

Facts:
United Tourist Promotions employed Kemplin to be its President for a period of five years, to commence on March 1, 2002 and to end on March 1, 2007, “renewable for the same period, subject to new terms and conditions”. Kemplin continued to render his services to UTP even after his fixed term contract of employment expired. Records show that on May 12, 2009, Kemplin, signing as President of UTP, entered into advertisement agreements with Pizza Hut and M. Lhuillier. Kemplin then filed for illegal dismissal against petitioner.

Issue:
Whether or not Kemplin was illegally dismissed.

​Held:
Yes. Considering that he continued working as President for UTP for about one (1) year and five (5) months and since [his] employment is not covered by another fixed term employment ontract, [Kemplin’s] employment after the expiration of his fixed term employment is already regular. Therefore, he is guaranteed security of tenure and can only be removed from service for cause and after compliance with due process. This is notwithstanding [UTP and Jersey’s] insistence that they merely tolerated [Kemplin’s] "consultancy" for humanitarian reasons. In this case, [UTP and Jersey] failed to prove the existence of just cause for his termination.
 
The pendency of a criminal suit against an employee, does not, by itself, sufficiently establish a ground for an employer to terminate the former. It also bears stressing that the letter failed to categorically indicate which of the policies of UTP did Kemplin violate to warrant his dismissal from service. Further, Kemplin was never given the chance to refute the charges against him as no hearing and investigation were conducted. The absence of a hearing and investigation, the existence of just cause to terminate Kemplin could not have been sufficiently established. The Court is well aware that reinstatement is the rule and, for the exception of "strained relations" to apply, it should be proved that it is likely that, if reinstated, an atmosphere of antipathy and antagonism would be generated as to adversely affect the efficiency and productivity of the employee concerned. Under the doctrine of strained relations, the payment of separation pay is considered an acceptable alternative to reinstatement when the latter option is no longer desirable or viable.