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Frequently Asked Questions

 

In our recent Client survey, we have identified the following top ten frequently asked questions.

 

No. The Industrial Court is neither a lower Court, nor a workplace tribunal. The Court is a Superior Court of Record, such as the High Court. Therefore, a litigant may appeal a decision of the Court, based on a point of law, at the Court of Appeal of Trinidad and Tobago. According to s. 4. (1) of the Industrial Relations Act. “For the purposes of this Act, there is hereby established an Industrial Court which shall be a superior Court of record and shall have in addition to the jurisdiction and powers conferred on it by this Act all the powers inherent in such a Court.”

 

Simply put, in Trinidad and Tobago, a trade dispute is a legal complaint, based on employment related matters, which must first be reported to Ministry of Labour and Small and Micro Enterprise Development. The expression is defined in the Industrial Relations Act. It covers “… any dispute between an employer and workers of that employer or a trade union on behalf of such workers, connected with the dismissal, employment, non-employment, suspension from employment, refusal to employ, re-employment or reinstatement of any such workers, including a dispute connected with the terms and conditions of the employment or labour of any such workers, and the expression also includes a dispute between workers and workers or trade unions on their behalf as to the representation of a worker…”

 

Yes. However, in relation to a Trade Dispute, it is mandatory for the worker to be a member of a union. There are at least two employment laws that permit a worker to go to Court, unaided, or, with a legal or other representative; the Maternity Protection Act, as amended and the Occupational Safety and Health Act, as amended, allow for matters to be personally referred to Court, by the aggrieved workers.

 

The Court has suggested that the relevant date is not the day on which the incident occurred (e.g. the day on which disciplinary action was instituted), but the date on which the Union reported its existence to the Ministry of Labour and Small and Micro-Enterprise Development. The typical question seems to be whether the worker was a financial member of the Union for at least eight (8) weeks prior to the Union’s report. We found the following useful quotation:

“ …membership in good standing in the context of s.51 (1) (c) [of the Industrial Relations Act] cannot in my opinion refer to the date at which the dispute may have arisen. This is simply because in many workplaces there is no recognized majority union and a worker in such an establishment has to join a union in order to pursue a matter under the Act if he is not already a member.

In my opinion once the worker is a member of the trade union for the requisite period at the date the dispute is reported that is sufficient to give the union locus under s.51 (1)(c). To find otherwise would effectively deprive a large number of persons of access to the Court and that could not be the intent of the Act.” [per His Honour G. Baker]

Steel Workers Union of Trinidad and Tobago v. Advance Health Care and Diagnostics Services Limited (Trade Dispute No. 207 of 2007) pages 5 & 6

 

Our extensive research discloses that ‘light duties’ are described as work prescribed by an employee's attending medical doctor, to fall within certain physical restrictions, while the employee continues to heal from a compensable work-related injury or occupational disease. ‘Light duties’ are not confined to work functions different from the functions which the employee performed, prior to a workplace injury, illness or medical condition. ‘Light duties’ involve working shorter hours, performing transitional work, (such as performing some of original duties, or different duties with lighter physical demands), performing a different job temporarily, and working in a modified job (for example, making adjustments to the job or work site to meet the employee’s physical limitations, or providing tools, equipment or appliances that allow that employee to work while recovering). It would be prudent for the employer to furnish the employee’s medical doctor with the particulars of the job description, to determine which duties, if any, may be performed and for how long. In relation to the assigning of light duties to a worker, the Court has said “The jurisprudence of the Industrial Court has not recognised a duty on the part of Employers to allocate light duties in every case where injury is suffered. Where the injury does not arise in the course of employment there is no strict obligation. Each case turns on its own facts.”

Oilfield Workers Trade Union and Trinidad and Tobago Electricity Commission [E.S.D. No. 35 of 2007]

 

There is no prescribed formula at law, for determining this calculation. An ex gratia payment, based exclusively on a calculation of severance benefits under the Retrenchment and Severance Benefits Act of Trinidad and Tobago, is generally not considered best practice. Best practices are gleaned from certain workplace policies and even collective agreements, according to the nature of the employer’s business (the industry or sector). In lieu of pension benefits, any formula which is equal to, or more than the total of one month’s pay, for every year of service usually constitutes a good offer, subject to the employer’s ability to pay.

 

Generally, no. The doctrine of employment at will dictates that an employment contract may be terminated by either party (employer or the employee) at any time, with or without reason. The principles of good Industrial Relations practice override at will employment. In the case of Bank and General Workers Union and Home Mortgage Bank [Trade Dispute No. 140 of 1997], the Court said “The principles of good industrial relations practice dictate that no worker’s employment may be terminated except for a valid reason connected with his capacity to perform the work for which he was employed or which is founded on the operational requirements of an employer’s business.”

Comment:

Notwithstanding the Court’s clear position, it remains questionable whether the Industrial Relations principles may be imposed on statutory provisions which instruct that the duration of employment for some persons, remains at the discretion of a public body or public official. For examples s. 16 (3) of the Litter Act states “Every warden….shall hold office during the pleasure of the authority appointing him and may be removed from office by it at any time…”

 

There is no ‘legal’ limit. However, a lay-off should only be instituted for a ‘reasonable period’. ‘Reasonable period’ has been described as a period not exceeding three (3) months, in certain circumstances, in accordance with good industrial relations practice. The duration of layoff has been considered in various situations, by the Industrial Court of Trinidad and Tobago. In the case of John Dickinson & Co. v. Transport and Industrial Workers Union I.I.A 25 of 1978, at page 3 of the judgment, the Court indicated as follows: “In Industrial Relations temporary lay-off has a different meaning from redundancy. In a temporary lay-off situation the fixed or probably period of such lay-off should also be stated. According to the Dictionary of Industrial Relations by Harold S. Roberts:-

Temporary Lay Off:- A separation from employment at the instigation of the employer but without fault on the employee’s part usually of a temporary nature.”

Since there is no limit prescribed by legislation, the principles of good industrial relations practice, regarding ‘reasonable period’ are gathered from the following cases:

• In the case of Transport and Industrial Workers’ Union v. Consolidated Appliances Limited (I.C.A. No. 9 of 1986) the Court ruled that “…. Unless the parties agree on a longer period for a temporary layoff in a registered collective agreement, or unless there are exceptional circumstances, no temporary lay-off should exceed three months in accordance with the principles of good industrial relations practice.”
  
  
• In the case of Transport and Industrial Workers’ Union v. Hand Arnold Industries Limited (R.S.B.D NO. 4 of 1997) the Court endorsed and adopted the dictum in Transport and Industrial Workers’ Union v. Consolidated Appliances Limited (I.C.A. 9 of 1986)
  
  
• In the case of Dive Masters Caribbean Limited v. Seamen and Waterfront Workers’ Trade Union (Trade Dispute No. 166 of 2000) the Court ruled that three (3) months was the longest reasonable time for the worker to remain workless and payless from his employer without this being a fundamental breach of contract on the Employer’s part. The Court noted:
  
  

  “In the absence of a time specification in a worker’s contract of employment, good industrial relations practice dictates that a lay off is to be for not more than a reasonable period.”>

  
  
• In the case of National Union of Government and Federated Workers v. Chief Personnel Officer (Trade Dispute No. 218 of 1999) the lay-off continued for more than two years. The Court did paid little attention to the duration of the lay-off since the collective agreement between the Union and the Employer allowed for the workers to claim severance benefits if they were laid off for a period of more than ninety days.
  
  

  Notwithstanding the cases above, it is important to note that an employer is not precluded from entering into an agreement with an employee to implement a period of lay-off for a period beyond three (3) months, subject to genuine consultation and the specific circumstances giving rise to the proposed lay-off. Each case therefore, depends on its own merits.

Eligible women are entitled to no less than fourteen (14) weeks maternity leave, with pay. However, although The Maternity Protection Act, as amended, awards fourteen (14) weeks maternity leave, by operation of sections 10 (2) and 10 (4), maternity leave may be extended by reason of either medical or non-medical grounds.

 

Yes. For that reason, we recommend that due care is taken by the employer, prior to issuing the warning letter or notice. Although the employee’s signature on that letter suggests an acceptance of the contents, it is not a problem, when the employee refuses to sign, or accept the letter. The contents of the letter may be orally shared with the employee, and the record of that conversation and the warning letter, thereafter placed on the employee’s file. In preparing a warning letter, consideration must be given to the facts gathered during the investigative process, any previous disciplinary infractions, the relevant employer’s policy, and the need to discourage the commission of similar offences, in the employer’s interest. The Court cautions:

“A warning notice should not be issued by an employer cavalierly. The investigations preceding its issue should be as thorough as if more serious disciplinary action is contemplated, It must not be used to tarnish the reputation of a worker where it is not possible to discover evidence to justify more serious disciplinary action.”

Bank Employees’ Union v. Republic Bank Limited [Trade Dispute No. 83 of 1995]