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The 2023 judgment entered by the Industrial Court of Trinidad and Tobago, in the case of National Union of Government and Federated Workers v. Urban Development Corporation of Trinidad and Tobago (Trade Dispute No. 393 of 2016)  highlights the necessity of investigating disciplinary issues, prior to levying charges and terminating an employee’s service.    

 

The Court emphasized that the importance of conducting an internal investigation is in tandem with principles of good industrial relations practices. Essentially, the decision to investigate the allegation(s) made against the worker before laying any charge, affords an opportunity for the employer to objectively determine if there was any substance to, or any genuine basis for the allegation(s). Additionally, the worker’s participation in the investigation must be considered, and all the information provided must be weighed, in determining whether charging (and dismissing) that worker is warranted.  

 

In this case, it was determined by the court, that UDECOTT, the employer, failed to take these steps and thus acted contrary to the principles of good industrial relations practice.  The worker was awarded damages in lieu of reinstatement.

 

 

March 2020 has recorded to date, the highest number of telephone calls received at our Law Offices in Tunapuna, Trinidad and Tobago, on the issue of leave entitlement, especially during a national emergency. As a team, we quickly decided to look at the most frequently asked questions, so that we may share our views, based on research undertaken. Such views are not to be considered legal advice.

 

Q1: Who qualifies for/ is eligible for pandemic leave? (Category of workers)

Q2: What is the common duration of pandemic leave when it becomes applicable?

Q3: How are employees paid whilst on pandemic leave?

 

Q1: Who qualifies for/ is eligible for pandemic leave? (Category of workers)

The advent of COVID-19 has resulted in the advancement of pandemic leave, a new category of leave of absence from work, in this jurisdiction.  Pandemic leave, which is distinct from sick leave, casual leave, vacation leave, or any other form of leave, has been incorporated into a Policy to treat with workplace absence during the period of the global pandemic related to COVID-19.   At this time, the provision for pandemic leave is recommended to apply for the benefit of the public sector, and therefore public officers, whether they are permanent or temporary, monthly paid and daily-rated, in addition to fixed term contract employees, short term contract employees and on the job trainees. Employers in the private sector are also urged to demonstrate compassion and adopt similar initiatives.

 

Based on the Media Conference hosted by the Ministry of Labour and Small Enterprise Development on March 15, 2020, our interpretation and synopsis of the recommendations for eligibility and/ or qualification for pandemic leave by an employee, as articulated by the Honourable Ms. Jennifer Baptiste-Primus, Minister of Labour and Small Enterprise Development of Trinidad and Tobago and Mr. Daryl Dindial – Chief Personnel Officer, are integrated as follows:

 

PANDEMIC LEAVE Who is eligible?
Ministry of Labour’s Recommendations (Our Understanding)	Our Suggestions
PUBLIC SECTOR [PUBLIC OFFICERS (PERMANENT, TEMPORARY, MONTHLY PAID AND DAILY RATED), FIXED TERM CONTRACT EMPLOYEES, SHORT TERM CONTRACT EMPLOYEES, ON THE JOB TRAINEES, OFFICE HOLDERS WITHIN THE PURVIEW OF THE SALARIES REVIEW COMMISSION (SRC)] Employees with no sick leave eligibility as part of their terms and conditions of employment Short-term employees, and temporary workers who only have sick leave, but no provision for extended sick leave All categories of employees who will not be coming to work because they must take care of their children Anyone who does not qualify for extensions of sick leave or as a contract officer who does not qualify for leave of absence on the grounds of illness It is suggested that where employees who are entitled to sick leave become ill/ or contract the virus, they would have to exhaust their sick leave and extended sick leave (where applicable) before qualifying for pandemic leave.   PRIVATE SECTOR EMPLOYERS Private employers with unions should consult with respect to sick leave and clearance for employees who need Pandemic leave. If there is no union, employers may seek guidance from the Ministry (Conciliation Advisory and Advocacy Division). 299 0300 ext 2043, 2124.	PRIVATE SECTOR EMPLOYERS ONLY All employees in the following circumstances: RMU situation For employers with a Recognised Majority Union (RMU), the clauses of the current Collective Agreement for sick leave and extended sick leave entitlements (if applicable) should be followed, in the likelihood of ill-health, with no loss of earnings to the employee. Immediate consultation between the representatives of the employer and the union is recommended for the implementation of a policy on special leave/ pandemic leave to take effect where the employee exhausts allocated sick leave (remember that only the union is allowed to make representation regarding employment terms and conditions. so unilateral action should be avoided);  For permanent employees who fall outside of a Bargaining Unit, in an environment where there is a RMU, allowances should be made for the granting of special leave/ pandemic leave where such employees fall ill and have exhausted sick leave and extended sick leave (if applicable) provisions. For temporary and daily paid employees who fall ill and have not accumulated any sick leave entitlement, they may be afforded special/pandemic leave up to a fixed duration (in the first instance) which does not exceed fourteen (14) days.   No RMU For permanent and temporary (long term/ fixed term) employees, allowances should be made for the granting of special leave/ pandemic leave where such employees fall ill and have exhausted sick leave and extended sick leave (if applicable) provisions. Where employees do not suffer ill-health but any of the following circumstances or qualifying reasons apply, consideration may be given to the relief from duties (on special/ pandemic leave): The employee is a single parent and no suitable accommodation can be made for child and elderly care The employee is part of an “at risk” or “vulnerable” group (e.g. suffers from autoimmune disorders) The employee is required to utilize public transportation daily The employee’s immediate family member (of the same household) is ill and has not been subject to self-isolation  The employee has recently returned to this country from a country from which there has been an imposed air travel restriction by the Government of Trinidad and Tobago In each of the circumstances enumerated above, it is expected that the employee would be encouraged to apply for leave using the usual Leave Application Form (if any). The list is not exhaustive and may be adjusted as the employer deems necessary.

 

 

Q2: What is the common duration of pandemic leave when it becomes applicable?

Despite the recommended introduction of pandemic leave and the particular interest in who may benefit from such a leave, we have observed the paucity of information/ documentation regarding the (recommended) period for pandemic leave. Understandably, it may be difficult to determine, in light of the somewhat turbulent nature of a pandemic, and the circumstances surrounding the request, if any, for pandemic leave. A scan of regional and/ or international human resource management policies of Companies and/ or Organisations which possessed and/ or recently implemented paid leave for use during a pandemic, epidemic or any such similar happening or natural emergency, reveals as follows:

• The leadership team of Walmart US, including its Chief Executive Officer, John Furner, as part of a covid-19 emergency leave policy, issued an electronic mail which stated, “Should an associate have a confirmed case of the virus, they'll receive up to two weeks of pay. If they're not able to return to work after that time, additional pay replacement may be provided for up to 26 weeks for both full-time and part-time hourly associates.” It should be noted that alternative measures/ methods were raised based on the circumstances surrounding the request of “an associate” for leave. This included the waiving of the Company’s policy related to attendance where there is a level of discomfort related to attending work and the provision of two weeks of pay where a store, club, officer or distribution center is part of a mandated quarantine or if the individual is required to be quarantined.
• Telstra also launched a global epidemic and pandemic leave policy in response to the “ongoing covid-19 situation.” This new policy provides up to 14 days of paid leave where a member of the Telstra team is required to quarantine or self-isolate; does not have sufficient (or any) carer’s leave; or are caring for a child if their school or childcare is closed and unable to work from home. There will also be the ability to extend paid leave as needed at their leader’s discretion.
• In an electronic mail to the University of Nebraska’s system, President Ted Carter expressed that employees may take up to 80 hours of paid emergency leave in the event of self-quarantine, family care or child care. Additionally, if an individual’s circumstances require more than the 80 approved hours, employees must first utilise current paid leave policies and practices. However, this 80 hour stipulation may be a result of the average hours worked by certain employees of the University.

It appears therefore that the current standard practice encompasses the provision of leave for approximately fourteen (14) days Each case will however, turn on its own facts and it is expected that employers would exercise their discretion in relation to any extended period of pandemic leave.

 

Our recommendation therefore, is that in the private sector in Trinidad and Tobago, where there is no policy or collective agreement or employment contract by which a period of absence is permitted for events such as a pandemic, a period, not exceeding fourteen (14) calendar days, in the first instance, may be granted.

 

Q3: How are employees paid whilst on pandemic leave?

Throughout the United States of America, certain companies have adjusted its policies to accommodate the ongoing pandemic. The following Companies are examples from an Article captioned “From Walmart to Burger King’s parent company, these 14 retail companies are changing their benefits policies amid the coronavirus pandemic”ⁱ by Irene Jiang:

1. Darden Restaurants (Olive Garden’s parent company): Allowed its hourly employees paid sick leave. The employee accrues one hour of sick leave for every thirty (30) hours worked and current employees have immediate access to a “starting balance” based on their last twenty-six (26) work weeks.
2. Walmart: Waived its attendance policy through the end of April as part of a new emergency leave policy. Employees can stay home and take unpaid leave if they feel unable to work or uncomfortable coming to work. The employees will receive “up to two weeks of pay”. After two (2) weeks, hourly associates who aren’t’ able to return to work are eligible for up to twenty-six (26) weeks in pay.
3. Starbucks: Employees will receive up to fourteen (14) days of paid leave and is offering up to twenty-six (26) days, to workers who are unable to attend work after the original fourteen (14) days.
4. Amazon: Two (2) weeks of paid sick leave and unlimited sick leave until the end of March for all hourly employees.
5. Lowe’s: Paid leave for fourteen (14) days. This will not count against the employee’s sick leave, vacation, or holiday time and will be paid for sick leave until their physician releases them to return to work.

In the Article captioned, “NU to give employees 80 hours paid leave amid COVID-19 pandemic”ⁱⁱ by Chris Dunker, President Ted Carter states that the University of Nebraska employees may take up to eighty (80) hours of paid emergency leave in the event of self-quarantine, family care or child care because of school closures amid the COVID-19 pandemic.

 

Furthermore, in respect of the United States, according to the Article captioned “Paid sick leave: Who gets it during the coronavirus outbreak”ⁱⁱⁱ by Heather Long, if the Families First Coronavirus Response Act, bill, is approved, it would grant two (2) weeks days of paid sick leave at one hundred percent (100%) of the person’s normal salary.

 

With respect to Canada, in the Article captioned “Alberta provides paid job-protected leave in self isolation tied to coronavirus”,^iv by Dean Bennett, the Article indicated that Alberta is changing labour laws to provide fourteen (14) days of paid leave for workers who are self-isolating due to the coronavirus. Employees will not need doctor notes, nor will they have to had to work for ninety (90) days previously to qualify for such leave.

 

Additionally, in the Article captioned, “Telstra workers, including casuals, can get up to 14 days of paid leave if they’re in coronavirus self-isolation”,^v by Sharon Masige, the Australian company, Telstra has implemented a new policy which gives permanent, fixed-term and casual staff fourteen (14) days paid leave, if they are quarantined or have to self-isolate due to the coronavirus.

 

In Germany, according to the Article captioned, “FAQ: Coronavirus (COVID-19) and Employment Law in Germany”,^vi by Dr. Kara Preedy and Konradin Pleul an employee who is ill due to coronavirus is entitled to continued remuneration.

 

In Trinidad and Tobago, therefore, in the private sector, we recommend full or half-pay whilst on pandemic leave, for a period of no more than fourteen (14) days, in the first instance. Thereafter, we recommend half-pay for any additional period of leave of absence, which does not exceed one (1) month. Such pay for pandemic leave, may be applied on any of the following grounds:

1. Where paid sick leave expires (if an employee is ill);
2. When an employee may not be eligible for paid sick leave; or
3. If an employee is not ill, and there exists some qualifying reason(s) (refer to Question 1 for qualifying reason(s)/ circumstance(s)) requiring the employee to remain at home.

 

 

Her Honour Deborah Thomas-Felix, the President of the Industrial Court of Trinidad and Tobago continues to advocate concerns regarding the inadequacies of the several provisions of various Collective Agreements, in relation to maternity benefits.

 

At an apparent Special Sitting of the Court on December 13, 2013, the Maternity Protection Act, which was amended by Miscellaneous Provisions (Maternity Protection and Master and Servants’ Ordinance) Act 2012, came into focus, as the Court’s President ordered that the several Companies and Unions represented, amend the offending Articles, forthwith.

 

Even prior to the amendment of the MPA, the construction of the Clauses appeared to be inconsistent with the intention of Parliament. For example, some Agreements purported to limit the duration of maternity leave to ‘no more than thirteen weeks’ or, ‘an aggregate of thirteen weeks.’ The MPA however, by virtue and operation of sections 10 (2) and 10 (4), has clearly stipulated that maternity leave may be extended by reason of either medical or non-medical grounds. Such an extension means that, prior to the passage of the amendment, maternity leave was expected to be, in reality, ‘no less than thirteen weeks.’ For quick reference, here is the extract from the Act regarding the additional entitlement:

 

10. (2) An employee who extends her absence from work for medical reasons under subsection (1) may do so for a period not exceeding 12 weeks after the required date of return and shall inform her employer in writing of her intended date of return.

 

10. (4) An employee may postpone her return to work for non-medical reasons until a date not exceeding four weeks after the required date of return if, within ten working days, before the required date, she gives the employer written notice, stating the reason why she is unable to return to work and stating an intended date of return.

 

The advent of the 2012 amendment has unfortunately, accounted for evidence of further non-compliance in Collective Agreements. Although a number of companies have insisted that all payments made and leave of absence granted to female employees, were carefully managed according to the new law, the collective agreements, the internal employment policies, contracts and handbooks have not yet been modified. In essence, those settled collective agreements, bridging a period which includes 2012, or after 2012, which contain original clauses conferring thirteen weeks leave, as opposed to fourteen weeks leave, are now contrary to the law.

 

Ironically, the Unions, our vanguards of workers’ rights, which often assume responsibility for registration of the Collective Agreements, not only ‘sign off’ the documents prior to the attempted registration, but also perpetuate the misunderstanding, by presenting poorly constructed articles, in their proposals for collective bargaining, that are eventually adopted by inattentive companies. Neither party to the indiscretion, should be allowed to claim innocence.

 

In going forward, the simple language that may be used is “Maternity Leave shall be granted in accordance with the Maternity Protection Act, as amended.” My friend at the Court adds, that the parties are at liberty to recite the words - ‘any other subsequent amendment to the MPA, shall bind the parties.’

 

 

It is, for me, rare, that Legal Counsel will encounter a Judge of the Court, who candidly endorses his, or her good work, to a Client. This was my experience on November 20, 2013, when Her Honour, Mrs. Victoria Harrigin, facilitated Conciliation proceedings, between my Client, JDs Furniture Store and the National Union of Domestic Employees. It was a marked privilege, which I now feel compelled to record.

 

The Proceedings were adjourned on at least two prior occasions, owing to her seemingly failing health. Just before the parties resumed joint caucus, after our ‘breakout session’ that afternoon, I quickly asked Her Honour whether she was well enough to continue the proceedings. To someone like me, who has no medical experience, she was suffering from flu like symptoms and appeared to have the common cold. She explained that the ‘drowsy medication’ she consumed, did not seem to help. At the end of the proceedings, she did two things. First, she enquired about Carla Walcott’s stint with the ILO, and was pleased to discover that a Paper she prepared during her tenure at the Ministry of Labour, was favourably considered by the ILO. She extracted a promise from Carla, to provide her with a copy of her Paper, since she did not possess a record of it.

 

Secondly, Judge Harrigin addressed my Clients directly. My Clients were less than enthusiastic about my recommendation for settlement and as an Employer, I absolutely understood their disenchantment. I also recognised their hurt at ‘rewarding’ a former employee, in the face of wrong-doing. I was in no position to offer religious advice. I surmised that my counsel should be based exclusively on the facts of the case presented to me, and the legal precedents. Indeed, I am no expert in matters of God. Our Judge however, espoused a few of the godly principles I ignored, without any hesitation, or embarrassment. Apart from the fact that she spoke of my work as a practitioner, my distinct recollection of her utterances, is her urging to forgive, to let go and leave everything else to God. My Clients, self-professed Christians, must have learnt the same lesson I did; in all that we do, and say, we are reminded of God.

 

On December 16, 2013, upon my arrival at the Industrial Court, I was greeted with the sad news of the passing of Her Honor, Mrs. Victoria Harrigin.

 

God knows, that I shall surely remember this Judge.

 

I express deep condolences to the family of the late Judge, Her Honour Mrs. Victoria Harrigin, and all added family at the Industrial Court of Trinidad and Tobago.

 

Rest In Peace My Lady!

Vanessa Thomas Williams

 

 

Counsel's Foreword

In October 2013, I met Attorney at law, Tracy L. Moon Jr., after his presentation on Civil and Criminal Liability for Safety Professionals at the Annual US National Safety Council Congress and Expo in Chicago, Illinois. Tracy is a partner in the Atlanta office of Fisher & Phillips LLP, Attorneys at Law. Here’s the latest Labour Letter from Fisher & Phillips, which you may find useful.

Vanessa Thomas Williams

 

January 7, 2014

Dear Vanessa,

Please find articles from the latest Fisher & Phillips Labor Letter below.

 

You Choose: Time Or Money?

According to the U.S. Bureau of Labor Statistics, almost 60% of American workers are paid an hourly wage. Many of these workers are employed by companies who offer little in the way of paid time off such as sick time, vacation time, or family leave. While most workers in the United States are protected by various laws which guarantee unpaid time off in certain circumstances, relatively few are entitled to paid time off unless the employer simply chooses to make paid time off available.

 

While laws requiring paid time off are few and far between, the Federal Fair Labor Standards Act (FLSA) at least guarantees hourly-paid workers overtime pay when they work over 40 hours in a work week. The FLSA generally requires the overtime hours to be paid at time-and-a-half the employee’s “regular rate” of pay. Thus, extensive overtime work often significantly supplements an employee’s take-home pay. Of course, those long hours mean less time away from work. While all workers, hourly paid or salary paid, typically appreciate an opportunity for a larger paycheck, some workers actually might prefer time off above additional pay.

 

Click here to read the full article »

 

 

Using Biometrics In The Workplace

(Labour Letter Update, January 2014)

In the past, employees rarely objected to having their picture taken for the company’s identification badge. But in this age of technology allowing for facial recognition, photo “tagging,” finger or palm prints, and other biometrics – even including DNA – employees often resist requests for personal information to be used in connection with security or other business needs.

 

Click here to read the full article »

 

 

NUDE continues to celebrate Convention 189

“Domestic work is work. Domestic workers are, like other workers, entitled to decent work.”

 

Following the adoption of the Convention that deals with decent work for domestic workers, by the International Labour Organization, the influence of the Domestic Workers Convention, 2011 (No. 189) was made known to Trinidad and Tobago, by, among other persons, the National Union of Domestic Employees.

 

According to Convention No. 189, a domestic worker is “any person who is engaged in domestic work within an employment relationship”, whether full-time or part-time and whether they live-in or not.” Such a worker’s services around the household include cleaning, ironing, cooking, washing, taking care of children and/or the elderly or sick members of a family.

 

Convention No. 189 offers protection to the domestic worker, by establishing basic rights and principles. It requires the State to take a series of measures with a view to making decent work a reality. Domestic workers can enjoy the protections offered by the Convention, by organizing and mobilizing support for the ratification and implementation of the Convention by their Governments. The recommendations may also be utilized to influence changes in laws and improve the working and living conditions of domestic workers, whether or not the country in which they work, has ratified Convention No. 189.

 

Domestic workers who reside in the household in which they are employed, are now governed by a range of standards, which include:

 

• Decent living conditions that respect the workers’ privacy.
• Freedom to reach agreement with their employers or potential employers on whether or not to reside in the household.
• No obligation to remain in the household or with its members during their periods of rest or leave.
• Right to keep their identity and travel documents in their possession.
• Regulation of stand-by hours.

 

Of equal importance, are these standards for domestic workers, seeking employment in a foreign country:

 

• A written contract that is enforceable in the country of employment, or a written job offer, prior to traveling to the country of employment.
• Clear conditions under which domestic workers are entitled to repatriation at the end of their employment.
• Protection of domestic workers from abusive practices by private employment agencies.
• Cooperation among sending and receiving countries to ensure the effective application of the provisions of the Convention to migrant domestic workers.

 

The rights of Domestic Workers include the right for protection, respect, freedom of association and the effective recognition of the right to collective bargaining, elimination of forced compulsory labour, elimination of employment discrimination, fair terms of employment and decent living accommodations.

 

We are grateful to Carla Walcott, Assistant General Secretary of the National Union of Domestic Employees for providing the latest information and Convention 189.