UNDERSTANDING CONSTRUCTIVE DISMISSAL (IN 2024)

WHAT IS A CONSTRUCTIVE DISMISSAL?

As many of you would already know, the route of the constructive dismissal challenge is now the most popular one when it comes to the unfair dismissal challenges which most trade unions in Trinidad and Tobago send to the Industrial Court of Trinidad and Tobago via the conduit known as the Ministry of Labour. With respect to a time-line, I am referring to the recent commencement of the year 2024 and the last three decades which have elapsed.

WORKING DEFINITION OF A CONSTRUCTIVE DISMISSAL

The often-quoted ruling of the Industrial Court of Trinidad and Tobago contained in Trade Dispute No. 197 of 2002 will definitely embellish all readers’ assimilation of the ideas related to this popular and lucrative concept, as far as the victorious aggrieved workers and their trade union representatives and also legal representatives are concerned. In Trade Dispute No. 197 of 2002, the Court sought to provide useful guidance on the concept of constructive dismissal to the Labour Jurisdiction of Trinidad and Tobago, starting from page 25, which is re-captured here for ease of reference:

(page 25) “…. There seems to be considerable misunderstanding of the concept of constructive dismissal, and not only in this dispute. We therefore use this opportunity to offer some guidance.

Constructive dismissal occurs in circumstances where the behavior of the employer is so unreasonable or intolerable that it amounts to a fundamental breach of the employment contract. The essence of constructive dismissal is captured by Lord Denning in Western Excavating (ECC) Ltd v Sharp (1978) Q 13 / 761:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all and alternatively he may give notice and say that he is leaving at the end of the notice. But the conduct must in either case be significantly serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains; for if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.””?

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(page 26) “…. The foregoing should not be interpreted to mean that constructive dismissal only embraces a single breach going to the root of the contract. There may be a series of breaches over time culminating in the final straw at which point the employee leaves and may be considered to have been constructively dismissed.”

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(pages 26 to 27) “…. One word of caution, though, not every breach is a fundamental breach; the breach must go to the root of the contract. De minimis non curat lex – the law is not concerned with trivial things. Moreover, there must be a direct causal relationship between the decision to leave and the repudiatory breach by the employer.

THREE (3) MAIN ELEMENTS WHICH HAVE TO BE SATISFIED BEFORE A SUCCESSFUL CLAIM OF CONSTRUCTIVE DISMISSAL CAN BE MADE

Equality of treatment before the law has also placed a burden on all aggrieved workers to satisfy three (3) main elements before they could make a successful claim of constructive dismissal and the following excerpt from Trade Dispute No. 253 of 2015, delivered on October 20th, 2020, is very instructive in this regard:

(Pages 11 to 12) “… There is a plethora of judgments that have been determined by the Court on the issue of constructive dismissal and as has been correctly stated by the Company in its closing submissions. Over the years this Court has developed its own distinct jurisprudence applicable to local conditions and circumstances so that in addition to the basic principles of Western Excavating the Court has emphasized three main elements:

(i)??????????????? The immediacy of the resignation;

(ii)????????????? The contents of the resignation letter;

(iii)??????????? The requirement that the employer must be afforded the opportunity to remedy any breaches (if they exist) prior to resignation.”

These three elements are inextricably connected.

In the instant matter the worker has failed to satisfy these three critical elements by giving contractual notice of resignation and working out the notice period. The letter of resignation says nothing about his reason for resigning and as such the Company is not given an opportunity to remedy any breaches (if they exist).

The Union has not exposed for the Court’s consideration what it considered to be the fundamental breach that went to the root of the Worker’s employment contract. The Union has therefore failed to establish its case of constructive dismissal.

DECISION

On the basis of the totality of the evidence before us and in all the circumstances we order that the Union’s case is without merit and is hereby dismissed.”

USE OF REDUNDANCY TO TERMINATE A WORKER IN THE ABSENCE OF HIM BEING REDUNDANT IS A CONSTRUCTIVE DISMISSAL

See ESD TD No. 32 of 1999 Between The Superintendents’ Association of Trinidad and Tobago and BWIA International Airways Limited - Delivered January 16, 2004, for the following instructive quotation:

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(Pages 9 to 10) “… The termination of Mr. Ottley’s employment for a stated redundancy of negative validity, thus for reasons unconnected with his conduct or performance and which he had no real opportunity to question is, in the absence of any cogent and compelling evidence to the contrary from the Employer, in our opinion a constructive dismissal that was harsh, oppressive and in breach of good industrial relations practices not the least of which is a duty to act in good faith, and we so hold.”

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The above judgment reverberated the same sentiments which the Industrial Court had declared a few years earlier in TD 4/91 Between TIWU and Trinidad Distributors Limited - Delivered July 10, 1992. The following relevant and related quotation will ascertain this view-point:

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(Pages 17 to 18) “… By the same token we find, and so hold, that during the period indicated, warehouse 1 was the lesser of the two warehouses, accommodating only grocery items, and did so in a subsidiary capacity to warehouse 2. This then was the structure which was in place on the 31st January, 1990 and which the company decided to overturn on 1st February, 1990 by doubling the number of warehouse managers to two, placing the worker in charge of warehouse No. 1 only, and his (up to the previous day) subordinate Heath in charge of the more important warehouse No. 2 (We may mention in passing that this might very well have amounted to a demotion, and therefore a constructive dismissal of the worker, but this is not an issue before us).

THE OFFER OF SUITABLE ALTERNATIVE IN THE FACE OF A GENUINE REDUNDANCY IS NOT CONSIDERED TO BE A CONSTRUCTIVE DISMISSAL

In Trade Dispute No. 140 of 1993 (Delivered on July 2nd 1996) the following quotation will elucidate this area of the field of Industrial Relations practice:

(Page 16) “… The Court finds that there was no redundancy nor did a situation of constructive dismissal arise. We hold therefore that the Company as it was entitled to do and indeed required to do in the interest of good industrial relations, made a job offer to the worker which was rejected. We find the offer suitable and comparable to the job he held previously.

In the circumstances, we are of the view that the worker was neither constructively nor wrongfully dismissed and that he was not unfairly treated.”

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A LAY-OFF MAY BECOME A CONSTRUCTIVE DISMISSAL IF IT BECOMES TOO LONG IN ITS DURATION

In a seminal ruling on the concept of a lay-off which was delivered over twenty-two (22) years ago on October 15th, 2001, the Industrial Court courageously gave a cornerstone decision in Trade Dispute No. 166 of 2000, which continues to be a touchstone ruling for any sincere discussion and articulation on this concept. The following quotation from this judgment will bear me out and substantiate my view on this ruling:

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(Page 6) “… We hold that the “temporary lay off” of the worker, Phillip Gormandy, was in fact an indefinite separation from employment, which was same as dismissal.

We also hold that in this dispute three (3) months was the longest reasonable time for the worker, Phillip Gormandy, to remain workless and payless from his Employer without this being a fundamental breach of contract on the Employer’s part. Accordingly, the Worker was constructively dismissed and contrary to the principles of good industrial relations practice.”

RELOCATION OF A COMPANY TO AN INCONVENIENT LOCATION ELSEWHERE IN A COUNTRY IS ALSO DEEMED TO BE A CONSTRUCTIVE DISMISSAL

Another seminal ruling in this concept was given by the Industrial Court on March 15th, 2002, in Trade Dispute No. 153 of 1998, as it relates to the relocation of a place of employment to another place which was very inconvenient. I remember this matter well because when it initially came before the Ministry of Labour it was statute barred under the provisions of Section 51 (3) of the Industrial Relations Act. However, Mr. Ursus Cabralis, Grievance Officer from National Union of Government and Federated Workers, successfully argued a case to the Minister of Labour for the Minister to give this matter a temporary lifespan under the same Section 51 (3) so that the merits of this case could be ventilated before a neutral third party. I am the employee of the state who made that recommendation to the Minister of Labour when I was a Labour Relations Officer of the Ministry of Labour and I have never regretted making that recommendation to this date given the critical significance of the ruling and the long-term benefit that it has given to the development of good industrial relations in our Country. The following quotation from this judgment is self- explanatory:

(page 12) “… I find also having regard to the history of the worker’s employment with the employer, that his place of employment as at November 1996 was at Poyer’s premises on Omera Road, Arima, and that that was an implied term of his contract of employment, which the employer was not entitled to vary unilaterally. Therefore, even if I accepted the employer’s claim that he had told the worker about the relocation of the farm and that the worker had refused to go there, the position would not have been essentially different. There was nothing in the contract of employment of the worker (such as had been revealed in Court), which gave the employer the contractual right to direct the worker to work at Cumuto or at any place other than Poyer’s premises on Omera Road in Arima, which was his place of employment. Such a direction would be a repudiation of the worker’s contract. The worker’s refusal to go to the new premises would have been an acceptance of the employer’s repudiation and would have amounted to a constructive dismissal of the worker.”

PREMATURE RESIGNATION OF AN AGGRIEVED WORKER MAY NULLIFY A CLAIM OF A CONSTRUCTIVE DISMISSAL

Closely aligned to the requirement that an aggrieved worker must provide an opportunity to a company to remedy the circumstances which may create a genuine case of constructive dismissal is the question of whether there was a hasty or premature decision to resign by a worker which has also been deemed by the Court to be unable to establish a constructive dismissal situation. The following excerpt reproduced from Trade Dispute No. 526 of 2013, delivered on October 15th, 2020 is instructive in this regard:

(Page 12) “… In light of the discussions between the parties, the subject matter under discussion, the stage of those discussions, the time of the worker’s letter dated May 27, 2013, the fact that nothing ontowards (sic) took place on the three days between the worker’s letter dated May 27th, 2013, and her other letter dated May 29th, 2013, claiming constructive dismissal, and finally her answer to the Court that “this was an ongoing thing”, it is premature on the worker’s part to cease the discussions at that stage and claim constructive dismissal.

As a result, there was no reason for the worker to terminate the negotiations between them and as such, the worker acted contrary to the principle of good industrials practice (sic).

In the circumstances, the Court is of the opinion that the evidence led by the Union does not support its claim that the worker was constructively dismissed. The Court therefore upholds the Employer’s no case submission.

In consequence, the Court orders that this dispute be dismissed.”

THE INORDINATE DELAY BY AN AGGRIEVED WORKER BEFORE TENDERING THE RESIGNATION IS A LOOPHOLE ESCAPE ROUTE FOR A COMPANY

While one side of the coin may nullify a constructive dismissal claim because it was a precipitous or hasty pursuit of a resignation and not a remedy, the same can also be said that a too slow a move before the actual resignation may also nullify a constructive dismissal claim because such an inordinate delay would convey the acceptance of the unilateral alteration of the employment contract and the violation will become a normal part of the terms and conditions of employment. The following quote from Trade Dispute No. 307 of 2002 delivered on September 28th, 2004, is very instructive with regards to how long is too long when evaluating a delay before the resignation is tendered by an aggrieved employee who wants to make a claim of a constructive dismissal:

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(Page 13) “… The Court finds as a matter of fact that the Bank’s conduct as a whole on July 04, 2002 was likely to destroy or seriously damage the relationship of trust and confidence between itself and the worker. In the premises, the Bank’s conduct was sufficiently serious entitling the worker to terminate the contract forthwith (or within a reasonable period), if she so minded, and claim constructive dismissal.

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Any delay too long in terminating the contract in response to the breach may amount to an affirmation of the contract. The evidence establishes that the worker had been aware of the breach of contract on July 04, 2002 and she purportedly terminated the contract of employment in response to the aforesaid breach on October 08, 2012. Therefore, three months had already elapsed since the repudiatory act occurred. It is clear that the worker wanted to avoid an immediate termination of contract; she did not act promptly in repudiating the breach.

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Notwithstanding this fact, we have taken the view that the essential test is really whether the worker’s conduct in the intervening period was such as to constitute an affirmation of the contract. This view is consistent with the finding in the case of Bashir v Brillo Manufacturing Co. Ltd, namely, that it is not the passage of time itself which necessarily constitutes affirmation, but what happens during the time. To this end, the operative issue for determination is:

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·??????? Whether the worker made clear to the Bank her concern to continue working pending receipt of a letter of apology, or in the alternate, whether the worker clearly communicated to the Bank that she was working without prejudice to her claim to have been constructively dismissed. It is important, in our view, that the worker should have indicated to the Bank that she regarded its conduct on July O4, 2002 as repudiation of the contract of employment. She must indicate that fact to her employer, having chosen not to accept the repudiation and terminate the contract forthwith.

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We now turn to the evidence.

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It seems reasonable to us that the worker would proffer some corroboration, preferably in the form of documentary evidence (even by a single item of credible evidence) that signified her concern, supra. This was the evidential burden borne by the worker, which she did not discharge. The worker therefore, did not demonstrate that at the time of the giving of the notice of resignation, the Bank no longer intended to be bound by the implied term of trust and confidence.”

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(Page 16)????? “… Accordingly, the Bank was entitled to assume that the worker was fine up to the time of the giving of the notice of resignation. In our view, the worker had up to that time affirmed the contract since she had not accepted the repudiation. Having arrived at this finding, we are bound to conclude that the Bank’s conduct on July 04, 2002 was not the reason for the worker’s resignation. At this juncture this finding is sufficient to dispose of the dispute.”

DISCIPLINARY PROCEDURE BEING USED, IN ITSELF, DOES NOT CONSTITUTE A CASE OF A CONSTRUCTIVE DISMISSAL

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Trade Dispute No. 410 of 2013 delivered on May 31st, 2019 (Copy is attached for ease of reference) is instructive with respect to the judicial position that the use of disciplinary proceedings is part of good industrial relations so it cannot be used as a justification for a resignation on grounds of constructive dismissal. The following excerpt from this trade dispute definitely favours the Company’s case in this matter:

(Pages 14 to 15)

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“… In her resignation letter, the Worker specifically referred to her suspension as “the threat of discipline or dismissal and she interpreted it as a desire by COTT, for me to discontinue provisions of my skill and service to the Company”.

She further clarified her reason when she wrote “consequently and with much regret I believe I am left with no other choice but to tender my resignation.”

Clearly, this Worker concluded that her suspension constituted a fundamental breach that went to the root of her contract.

The suspension of a Worker pending an investigation into allegations, is a legitimate option open to an employer in pursuit of appropriate disciplinary action. It is an integral component of the process related to the rules of natural justice and the right to be heard. Therefore, such action cannot be a fundamental breach of contract and by extension, constitute a constructive dismissal.”

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Denying any employer from using disciplinary action has even been stated by the Court to be a mockery of the law within ESD 31 of 2017, which was delivered on December 7th, 2018. Accordingly, the following excerpt from the said dispute is reproduced here for consideration by the Court:

(Page 6) “… As far as the injunction is concerned, we order that it be discharged.

Injunctions should be granted on rare occasions when it pertains to right’s disputes and then only when the aggrieved party has no recourse to redress, if that party has been unjustly treated.

To do otherwise will see this Court flooded with injunctions in order to prevent employers taking disciplinary action against employees thus making a mockery of the Grievance Procedure which is the only provision that is mandatory for inclusion in all collective agreements as well as causing the other provisions of Part V of the Industrial Relations Act which deal with dispute resolution to become virtually redundant.

This matter is hereby dismissed.”

CONCLUSION

This article has not exhausted the various manifestations of constructive dismissal because there are such areas as: (1) failure by the employer to provide a safe working environment which would prevent physical and mental harm to his employees; and (2) the question of the after-thought constructive dismissal challenge after leaving on very good terms with the company. This article seeks to raise your awareness of the modern challenges because mistakes in this area are indeed quite expensive, provided that you agree with me that a loss at the Industrial court may attract very expensive damages such as 24 to 36 months’ pay. You may desire to obtain a more lucid picture on damages in this area by reading the last page of the following judgments after you pin-point the salary of the employees within the earlier parts of the judgments:

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? ESD TD No. 32 of 1999 delivered on January 16th 2004;

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? TD No. 657 of 2012 delivered on March 24th 2016; and

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? TD No. 34 of 2015 delivered on March 1st 2018.