FIXED-TERM CONTRACTS OF EMPLOYMENT & the ABUSE of the EFFLUXION OF TIME RULE (2024)
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(1)???????? INTRODUCTION:
The termination of a fixed-term contract of employment by the effluxion of time rule is presently the most contentious topic within the field of Industrial Relations in Trinidad and Tobago, as of December 2024, because of the abuse of this common law rule. Under the principles of good industrial relations practice the common law rules have to be used as the exception and not the norm whenever there are statutes from Parliament and Court precedents based on those statutes because, for all intents and purposes, good industrials have eroded the areas which those common law rules had governed previously. Unfortunately, in the last twelve (12) years, the common law rule of the effluxion of time is still being promoted by a majority of lawyers throughout the private sector and also within state enterprises and this ill-founded promotion is adulterating the stability at the place of employment and also wasting precious judicial time, unnecessarily or frivolously. Furthermore, the more that the state enterprises and ministries promote this abuse, the more the private sector develops a false sense of security and do likewise. Ironically, even the judges of the Industrial Court are affected by the abuse of the effluxion of time common law rule, as was observed judicially by the High Court in 2019, when it ordered significant damages for former Industrial Court Judge, Mr. Sam Maharaj, who had challenged the unjustified non-renewal of his fixed-term contract by the then Prime Minister Mr. Patrick Manning. Some observers also believe that they saw abuses of the effluxion of time rule at the Industrial Court in December 2023, when the sitting President Her Honour Mrs. Deborah Thomas-Felix was terminated by the effluxion of time rule.
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If you do not appreciate that Industrial Relations / Employee Relations is about reading court judgments, then you would not have the motivation to read this article because it is a hardcore presentation of excerpts from landmark judgments which deal with the most contentious topic within Industrial Relations, that is, the fixed-term contract of employment as it relates to the effluxion of time rule. About 10% of this presentation has been created by me with the remaining 90% being critical and essential quotations from landmark judgments. This is clearly not an article for industrial relations pretenders who abscond from their duty to read as many Court judgments as they can before they give employers advice. This article is relevant to industrial relations practitioners like me who have to prepare evidence and arguments and witness statements or who conduct fact-finding investigations or disciplinary inquiries. ?
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Justice cannot be done to this topic until we recognize that the Masters and Servants Ordinance, Chapter 22. No. 5 from 1938, had enshrined the common law rules to be used to determine the contract of employment. That odious document was done using a racist Anglo-Saxon ideology against former slaves and indentured servants of Trinidad and Tobago so that they would know their place as second-class citizens and not even think that they were the equal to their first-class contemporary Anglo-Saxon colonial bosses. Due to copyrights issues, I cannot share on this medium the type of information which I could share if I was conducting a face-to-face training session on this same topic. Next, and most importantly, we have to be guided by the facilitations contained within the Industrial Relations Act, Chapter 88:01, from 1972, which was passed as a document that was supposed to eradicate the common law rules almost completely and also the experimental Industrial Stabilization Act, 1965. Finally, in May 2012, by Act No. 7 of 2012, the Parliament of Trinidad and Tobago repealed the Masters and Servants Ordinance, Chapter 22. No. 5 completely, much to the dismay of most lawyers operating within Trinidad and Tobago who had weaponized the common law against workers of this Country. In more ways than one, lawyers in Trinidad and Tobago seem to detest the principles and practices of good industrial relations because they recognize that the law of contracts does not give them any edge at the Industrial Court and in many ways the common law rules which they learnt under the law of contracts are more a liability to the average lawyer than an asset.
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These three (3) statutes mentioned above had and have impacted on the rules governing the contracts of employment over the years, including the fixed term contract. Yet, in the last twelve (12) years since the repeal of the Masters and Servants Ordinance, many cases are still being pursued at the Industrial Court which seek to apply the common law rule of the effluxion of time as the sole justification for the contract of employment being terminated.
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The following are the sections of this article:
?(1) INTRODUCTION
(2) Understanding That The Court Is Bounded By Previous Rulings Until Parliament Makes A Change In The Interpretation
(3) Common Law Rules Ought To Abide With The Legislative Determinations Which Had Been Made In Parliament
(4) Respecting The Doctrine Of The Separation Of Powers And Preventing Political Interference Should Always Be Foremost In The Proceedings At The Court
(5) Understanding What Is Meant By The Concept Of “Social Justice” I.A.W. The Constitution Of Trinidad And Tobago
(6) The Harsh Provisions Of The Masters And Servants Ordinance (For Purposes Of This Article)
(7) The Common Law Rules Have Now Been Kicked Out Almost Totally By The Advent Of The Principles And Practices Of Good Industrial Relations Which Were Introduced By Statutes
(8) There Is Now A Compulsory Statutory Dispute Procedure Whose Goal Is To Promote Industrial Peace And Stability For The Country
(9) Under The New Dispensation Of The Industrial Relations Act, A Contract Of Employment Can Only Be Terminated If There Is Proper Justification
(10)???????????????????? The Masters And Servants Ordinance Was Finally REPEALED By A Special Majority In Parliament In 2012
(11)???????????????????? How Were Fixed-Term Contracts Of Employment Interpreted By The Industrial Court BEFORE The REPEAL Of The Masters And Servants Ordinance In 2012 and The Effluxion Of Time Rule?
(12)???????????????????? How does the Industrial Court treat with The Effluxion Of Time Rule AFTER the REPEAL of the Masters And Servants Ordinance In 2012?
(13)???????????????????? MODERN EXCEPTIONS When Dealing With The Fixed-Term Contract And The Application Of The Effluxion Of Time Rule
(14)???????????????????? CONCLUSION
(2)???????? Understanding That The Court Is Bounded By Previous Rulings Until Parliament Makes A Change In The Interpretation
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The following quotation from FOLEY v. POST OFFICE [COURT OF APPEAL – UK], delivered on July 25th 2000, will ascertain that where Parliament did not amend the legislation then the Court will be bounded by previous rulings:
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(Page 1288)
“… A reminder of the fundamental constitutional difference between the interpretation of legislation, which is a judicial function, and the enactment and amendment of legislation, which is a parliamentary function, is required in view of the number of occasions on which reference was made in the submissions to a “judicial gloss” on the legislation. As Lord Nicholls of Birkenhead said in Inco Europe Ltd v. Fine Choice Distribution [2000] 1 W.L.R. 586, 592E-F:
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“The courts are ever mindful that their constitutional role in the field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature.”?
In this case the interpretation placed by the tribunals and courts, including this court, on the provisions of the Act of 1978 in Iceland Frozen Foods Ltd. [1983] I.C.R. 17 and British Home Stores Ltd. v. Burchell has not led Parliament to amend the relevant provisions, even though Parliament has from time to time made other amendments to the law of unfair dismissal since those authoritative rulings on interpretation were first made. So those rulings, which have been followed almost every day in almost every employment tribunal and on appeals for nearly 20 years, remain binding.
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They should be applied to the two cases under appeal with the result that both appeals should be allowed and both claims for unfair dismissal fail.” (Emphasis by me - DPM)
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(3)???????? Common Law Rules Ought To Abide With The Legislative Determinations Which Had Been Made In Parliament
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The Supreme Court judgment from the United Kingdom between Gisda Cyf v Barratt [2010] UKSC 41, delivered on October 13th 2010, is quite instructive in revealing that the common law rules have to give way to the employment legislation from Parliament. The following quotation will ascertain this view.
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“39 ?? The need to segregate intellectually common law principles relating to contract law, even in the field of employment, from statutorily conferred rights is fundamental. The common law recognised certain employment rights, but the right at common law not to be wrongfully dismissed is significantly narrower than the statutory protection against unfair dismissal. The deliberate expansion by Parliament of the protection of employment rights for employees considered to be vulnerable and the significance of the creation of a separate system of rights was recognised by the House of Lords in Johnson v Unisys Ltd [2001] ICR 480. In that case the employee had succeeded in an unfair dismissal claim but, because of the statutory cap on compensation, sought to bring a claim at common law for breach of an implied term of trust and confidence during the dismissal process. The House of Lords refused to permit the supplanting of the legislative scheme by entertaining a second claim at common law. The leading judgment of Lord Hoffmann recognised the deliberate move by Parliament away from the ordinary law of contract as governing employer/employee contractual relations. At para 35 of his opinion Lord Hoffmann said:
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At common law the contract of employment was regarded by the courts as a contract like any other. The parties were free to negotiate whatever terms they liked and no terms would be implied unless they satisfied the strict test of necessity applied to a commercial contract. Freedom of contract meant that the stronger party, usually the employer, was free to impose his terms upon the weaker. But over the last 30 years or so, the nature of the contract of employment has been transformed. It has been recognised that a person’s employment is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem. The law has changed to recognise this social reality. Most of the changes have been made by Parliament. The Employment Rights Act 1996 consolidates numerous statutes which have conferred rights upon employees . . .”” (Emphasis by me – DPM)
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The dispute handled within Essential Services Division No. 15 of 2015, delivered on June 6th 2018, in the Industrial Court between Banking Insurance and General Workers’ Union and Eastern Regional Health Authority, also contains the following fortifying pronouncement on the reduced role of the common law when dealing with the fixed-term contract of employment:
Pages 2 to 3
“…In a Public Service environment apparently unprepared for the increased demand for services and for service excellence, however, fixed-term contracts are something of a necessary evil.
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The uncertainty that Fixed-Term Contracts (FTC) employment brings is nevertheless undeniable. Whatever its disadvantages, however, the FTC worker is not denied protections of the law. It has certainly been shown that they are not denied the protection of this Court. The Court has shown itself to be sensitive to the deficiencies or inadequacies of this type of employment. It stands firm in the defence of workers who can establish a legitimate expectation of contract renewal and/or conditions of dismissal that are unfair and contrary to principles of good industrial relations, even where an FTC existed and its term came to an end.
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The Court, in the absence of the legislative developments in other jurisdictions that take specific steps to protect the rights of FTC workers, relies upon the powers available to it under Section 10 of the IRA. This section outlines the powers of the Court and uses words such as “justice”, “fairness”, “equity” and “good conscience” in describing how these powers are to be exercised.
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Former Court President, H.H. Mr. Addison Khan, in his text, The Law of Labour and Employment Disputes in Trinidad and Tobago (2006) pages 89 to 91, comments on Section 10 (3) of the Act as follows:
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“This subsection, thus liberates the Industrial Court from slavishly following the common law in determining cases before it. The Court’s decision must be fair and just not only to the worker or workers involved but also to the trade union and the employer concerned as well as the community as a whole. The decision is based not on the common law but having regard to equity, good conscience and principles of good industrial relations.”
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Applied to the issue of FTCs, where the common law position indicate that an employee whose fixed term contract expires cannot succeed in an action that charges the employer with wrongful dismissal, the Court is entitled and even obligated to look further, to lift the veil and examine the facts and circumstances closely. The Court looks behind the veil in its search for solutions that speak to justice, equity and fairness. Such examination may very well arrive at conclusions that favour the Employee; circumstances that reveal injustice and unfairness.”
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(4)???????? Respecting The Doctrine Of The Separation Of Powers And Preventing Political Interference Should Always Be Foremost In The Proceedings At The Court
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As pointed out earlier within the introduction, state enterprises are also involved in cases dealing with the use of fixed-term contracts of employment. Therefore, the Industrial Court will always come under greater scrutiny when such matters come before the Court especially since the judges of the Industrial Court are also on fixed-term contracts which are renewed according to the decision of the executive arm of the state and not the judiciary or an independent body which is not connected to the executive arm of the state. In CvA No. 247/98, delivered on April 30th 2001, in the Court of Appeal between STEEL WORKERS UNION OF TRINIDAD & TOBAGO and CARIBBEAN ISPAT LIMITED, the Court of Appeal examined the danger if separation of powers has been ignored as demonstrated by the following quotation:
(Page 14)
“It can only be a blot on our system of justice that access by a trade union, should depend on the Act of a third party (the Minister) in order to access the Court. It is not to the point that the matter could be resolved by the trade union taking steps by way of mandamus to compel the Minister to do his duty as the Court held. Further, one could see the havoc such an approach could wreak if for instance, the particular Minister, or for that matter the executive was at odds with a particular trade union.
Indeed, it may arguably be urged that any restraint in access to the Courts which depended on the fulfillment of a duty by the Minister to do something, can be said to breach the doctrine of the separation of powers. The Court is a Superior Court of Record. I make this remark only in passing since the issue was not agitated before us, but in my view it helps to show that Parliament could never have intended the certification to be mandatory before the Court could entertain jurisdiction.” (Emphasis by me – DPM)
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Equivalently, in Privy Council Appeal No 0051, delivered on September 16th 2024, the Privy Council had warned the Government of Trinidad and Tobago that their executive decisions must respect the principle of separation of powers, as can be ascertained by the following quotation of Paragraph 89 of that judgment:
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“89. The Constitution requires that the obligation to pay tax is imposed by law and further requires that all monies collected by way of taxation be deposited into the Exchequer Fund and that payment out be authorised by Parliament. The Act is consistent with these requirements. There is no express provision of the Constitution or any assumption on which it is based that requires the assessment and collection of tax to be carried out only by persons directly employed in the service of government. Given the rationale for the chapter 9 protection, and the fact that those employed by the Authority pursuant to the Act will no longer be part of government, the assessment and collection of taxes can be done fairly and responsibly by a body corporate such as the Authority provided that it is genuinely independent, and there are adequate and effective safeguards available to protect those employed by it (and indirectly the public) from improper political interference.” (Emphasis by me – DPM)
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One must also not forget that protection of workers’ employment rights from political interference was one of the foundation pillars of the Industrial relations Act, as can be demonstrated by the following quotation of the Honourable E. E. Mahabir, Minister of Labour, from pages 956 to 957? of the Hansard for the House of Representative, dated Wednesday 14th June, 1972, during the reading of the Industrial Relations Bill which gave rise to the Industrial Relations Act, Chapter 88:01:
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“Mr. Speaker, in order to emphasize that the Court is an independent court free from control, directions or influences of the Executive, members of Parliament, political parties and personalities and in order to ensure that the jurisdiction of the Court is not fettered in any way by any of the provisions of the bill, an important amendment has been made to a provision which exists in the Industrial Stabilisation Act and this refers to the economic consideration which the Court was required to bear in mind when hearing disputes brought before it under the act. These economic considerations may now be advanced by the Attorney general and the Court may take his arguments into consideration in arriving at its decisions. I should point out here that there have been some adjustments to these areas for consideration, and one “the necessity to maintain and improve the standard of living of the workers” has been included on the suggestion of the Labour Congress.” (Emphasis by me – DPM)
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(5)???????? Understanding What Is Meant By The Concept Of “Social Justice” I.A.W. The Constitution Of Trinidad And Tobago
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Quotation from See section (b) of the? Preamble of the Constitution of the Republic of Trinidad and Tobago
“Whereas the People of Trinidad and Tobago -
respect the principles of social justice and therefore believe that the operation of the economic system should result in the material resources of the community being so distributed as to subserve the common good, that there should be adequate means of livelihood for all, that labour should not be exploited or forced by economic necessity to operate in inhumane condition but that there should be opportunity for advancement on the basis of recognition of merit, ability and integrity”
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(6)???????? The Harsh Provisions Of The Masters And Servants Ordinance (For Purposes Of This Article)
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From the well documented working-class riots during 1937, against the many social and economic ills facing workers in colonial Trinidad and Tobago, the colonial authorities did not see the need to introduce the often discussed Industrial Court which could have treated with individual grievances because they opted to apply instead the harsh and oppressive conditions contained within the Masters and Servants Ordinance. The following are three (3) quotations from this ordinance which should comfortably ascertain that a contract ending by the effluxion of time was one such harsh and oppressive condition and a contract ending with two (2) weeks’ notice was another such harsh and oppressive condition:
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Quotation No. 1:
“2.???? In this Ordinance –
“contract” includes any agreement, understanding, or arrangement whatsoever on the subject of wages, whether written or oral, direct or indirect, to which any employer and any servant are parties, or are assenting, or by which they are mutually bound to each other;”
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Quotation No. 2:
“3.???? (2) No contract for service shall be valid or binding on either of the parties thereto for any longer term than the period of one year from the time when the service under such contract shall be commenced according to the terms of the contract.” (Emphasis by me - DPM)
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Quotation No. 3:
“5.???? In the absence of any express agreement to the contrary every contract for service for one month or more, or continuing from month to month, may be terminated at any time by mutual consent of the parties, or by either party after the expiration of the first month on giving fourteen days’ previous notice to the party, or for any such good and sufficient cause as hereinafter provided.” (Emphasis by me - DPM)
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(7)???????? The Common Law Rules Have Now Been Kicked Out Almost Totally By The Advent Of The Principles And Practices Of Good Industrial Relations Which Were Introduced By Statutes
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Bear in mind that the colony of Trinidad and Tobago became independent on August 31st 1962, and that it inherited the common law rules contained within the above-mentioned Masters and Servants Ordinance. Under this common law inheritance, it is a fact that the economy experienced very debilitating industrial instability which forced the Country, once and for all, to reject the common law approach as the solution to achieve a stable economy. The following short quotations from various sources will pellucidly reveal that this was the paradigm at that point in time.
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Quotation #1 of the Honourable E. E. Mahabir, Minister of Labour, from page 945 of the Hansard for the House of Representative, dated Wednesday 14th June, 1972, during the reading of the Industrial Relations Bill which gave rise to the Industrial Relations Act, Chapter 88:01, and it reveals just how unsuccessful the Masters and Servants Ordinance proved itself to be as exemplified by economically crippling work stoppages within the Country from 1960 to 1971:
“The records also show that the largest single area of dispute related to matters affecting individual rights, mainly dismissals, most of which were not of the nature to stimulate industrial action. The order was 37 per cent and 34 per cent in 1966 and 1967 respectively, 66.7 per cent in 1970 and 44 per cent in 1971.
And, finally I invite hon. Members to have a look at the record of work stoppages. I wish to point out that the years 1970 and 1971 were the years during which the Industrial Stabilization Act was under greatest pressure and this period also coincided with a period of social upheaval in the country.”
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Quotation #2 of the Honourable E. E. Mahabir, Minister of Labour, from page 956 of the Hansard for the House of Representative, dated Wednesday 14th June, 1972, during the reading of the Industrial Relations Bill which gave rise to the Industrial Relations Act, Chapter 88:01, in which the Honourable Minister targeted the “shackles of common law” for removal from the labour jurisdiction of Trinidad and Tobago:
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“Hon. Members will note, Sir, that the provision of this Part are so designed as to ensure that the Court will be an industrial relations Court in the truest sense of that expression. In fact, it will be essentially a Court of human relations. Clause 9 has been introduced to allow the Court to have wide and liberal jurisdiction to dispense social justice in accordance with the principles of equity, good conscience and good industrial relations.
The jurisdiction will be completely divorced from the shackles of common law and legal technicalities will have no place in its proceedings.” (Emphasis by me – DPM)
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?(8)???????? There Is Now A Compulsory Statutory Dispute Procedure Whose Goal Is To Promote Industrial Peace And Stability For The Country
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In IRO No. 3 of 1989, delivered on July 24, 1989, in the Industrial Court between Transport and Industrial Workers Union and Coelho Baking Industries Limited the following quotation will reveal that it was understood by judges from the Industrial Court and the Court of Appeal that the Industrial Relations Act had made provisions for special arms of the state to promote industrial peace and stability as a solution to the above-mentioned work-stoppages which completely undermined the economy of the Country:
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“Earlier on at pages 520 – 521, Phillips, J.A. expressed his opinion that
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“The paramount objective of the Act is the achievement of industrial peace and stability. With this end in view, it provides machinery which operates for two basic purposes, viz:
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(1) ??? The promotion of collective bargaining between employers and workers with the object of entering into industrial agreements registrable under the Act.
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(2) ??? The settlement of trade disputes by the method of conciliation and arbitration.” (Emphasis by me – DPM)
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The following quotation from the Honourable E. E. Mahabir, Minister of Labour, from pages 937 to 938 of the Hansard for the House of Representative, dated Wednesday 14th June, 1972, during the reading of the Industrial Relations Bill which gave rise to the Industrial Relations Act, Chapter 88:01, is reproduced here in order to emphasize the importance that the Parliament of Trinidad and Tobago placed on the promotion of industrial peace and stability:
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“If it is accepted, as I contend, that one of the goals towards which any government must strive is the attainment of industrial peace, then it will be easily appreciated why so many countries, especially Third World countries and even Great Britain, a bastion of voluntary industrial relations, have seen it fit to introduce into their statutes, legislation designed to guide and influence industrial relations to the extent that conflicts and disruptions may be minimized.
Such legislation becomes even more necessary when one considers that there is always a third party to industrial warfare – the community as a whole. This fact is adequately represented in part of a recent statement of the Sir John Donaldson, President of England’s National Industrial Relations Court in the current railway dispute and I quote:
“While unions and management have a joint responsibility for good industrial relations, the primary responsibility for their promotion rests with management.
Good industrial relations does not mean a free-for-all in which the prizes go to the strong and the community goes to the wall. It means a relationship based on the observance of the law, respect for the rights of others and due regard to the community. The community includes, but is not limited to, employers and unions. The community means us all.” ” (Emphasis by me – DPM)?
(9)???????? Under The New Dispensation Of The Industrial Relations Act, A Contract Of Employment Can Only Be Terminated If There Is Proper Justification
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The following quotations are from land-mark judgments which have been repeatedly quoted by the judges from the Industrial Court from their dates of delivery to this year of 2024.
The following quotation from Trade Dispute No. 224 of 1999, delivered on July 5th 2000, in the Industrial Court between Transport and Industrial Workers’ Union and JSL Speedpak Services Limited, vividly reveals that the employer must respect the principles and practices of good industrial relations instead of seeking to apply the arbitrary common law rules:
Pages 4 to 5:
“What the Company is relying on here are the common law rules which prevailed up to 1965, before the enactment of the Industrial Stabilisation Act. Since that time the simplistic idea an employee can simply be dismissed on being given one month’s notice has been swept away. There are numerous cases in which this Court has time and again enunciated this principle. One of the more outstanding cases is Trade Dispute No. 68 of 1980 between Communication, Transport and General Workers’ Trade Union and Trinidad and Tobago Television Company Limited, where, in a judgment dated 14th November, 1980 commencing on the employer’s contention that it had simply given notice to the worker in accordance with their common law contract of employment, as well as the relevant collective agreement, the Court had this to say:
“We are unable to agree with this somewhat simplistic approach to the matter. It overlooks and by-passes a number of serious and highly relevant considerations. As the Court has pointed out in many previous judgments, it is an understatement to say that the common law rights of an employer have been circumscribed. For all practical purposes they have been almost completely eroded out of existence. This has come about through the rise of collective bargaining and the principles of industrial relations practice developed under it”.
The point of the matter is that in these proceedings the Company is simply relying on the common law rules relating to the termination of employment and these rules have been swept away by the statutory regime established by the Industrial Relations Act. [Successor to the Industrial Stabilisation Act]. And having regard to these circumstances, and also in light of the Company’s disrespectful failure to comply with the Court’s directions and to appear before the Court today, this Court has no hesitation in rejecting the Company’s argument. Even in the absence of a written Statement of Case from the Union or oral arguments by the Union, the Court finds in favour of the Union and holds that the termination of the worker’s employment was harsh and oppressive and contrary to good industrial relations principles and practices.” (Emphasis by me – DPM)
Likewise, is the quotation from Trade Dispute No. 72 OF 2000, delivered on June 28th 2001, in the Industrial Court between Union of Commercial and Industrial Workers and El Dorado Consumers Co-operative Society Limited:
(Pages 7 to 9) –
“The idea still persists in some quarters that it is possible to terminate a worker’s employment by merely giving him the required notice under the contract of employment. This was true under the common law but termination of workers by notice alone is insufficient under the Act. This whole question was discussed as long ago as 1965 in Trade Dispute No. 2 of 1965 between the Civil Service Association and the Marketing Board but such submissions continue to be made.
In addition, an employer must have an acceptable reason for terminating the worker’s employment. Under the common law, the employer had the right to terminate without assigning a reason for the termination. This is not acceptable under the Act. An employer must have a valid reason for dismissal which must be connected with the worker’s conduct or capacity to perform the work.
Additionally, an employer must inform a worker of the true reasons for his dismissal. There was no requirement under the common law for an employer to give a reason for the worker’s termination. He just had to inform him of the termination. By the principles of good industrial relations practice, however, an employer must give a worker the true reason for his dismissal.
An employer must also give a worker an opportunity to be heard before a dismissal becomes effective.
In Trade Dispute No. 68 of 1980 between Trinidad and Tobago Television and Communication, Transport and General Workers’ Union, His Honour Mr. J.A.M. Brathwaite said:
“It is an understatement to say the common law rights of an employer have been circumscribed. For all practical purposes they have almost been completely eroded out of existence”.
Similar observations were made in England after the introduction there of the Industrial Relations Act, 1971. Lord Reid said in the House of Lords in Post Office Union and Union of Post Office Workers and Another –
?“This Act is of a very unusual character. Acts of Parliament generally follow the method of the common law in creating clearly defined rights.
But the Industrial Relations Act, 1971 is of a very different character. It creates rights, but they are only unfair industrial practices. A person alleging an unfair industrial practice cannot bring an action; he can only make a complaint to an industrial tribunal …
This in my judgment shows that the Act must be considered in a broad and reasonable way so that legal technicalities shall not prevail against industrial relations and common sense. An unreasonable employer who tried to insist on his strict legal rights will get no comfort from the Act”.
In Mariott v. Oxford and District Co-operative Society Ltd, Winn, L.J. observed that –
“Academic discussions as to the operation in certain circumstances in the law of contract … should not be allowed to produce waste of time and energy …”
The principles of the common law have thus been superseded by the more appropriate principles of good industrial relations practice, which the Court is required to apply in every matter before it. The Industrial Relations Act has instituted a more just system for the determination of trade disputes by the application of the principles and practices of good industrial relations instead and in place of the inappropriate principles of the common law.” (Emphasis by me – DPM)
?(10)???????? The Masters And Servants Ordinance Was Finally Repealed By A Special Majority In Parliament In 2012
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In 2012, Parliamentary Sovereignty was used by the Parliament of Trinidad and Tobago to explicitly signal to the Country that the odious and dreaded Masters and Servants Ordinance, Chapter 22, No. 5, was repealed once and for all by Act No. 7 of 2012, which is described as “An Act to amend the Maternity Protection Act, Chap. 45:57 and to repeal the Masters and Servants Ordinance, Ch. No. 5”, and this Act was assented to on May 22nd 2012. One would hope that all persons in Trinidad and Tobago who are called upon to provide advice to employers on the terms and conditions of employment would be aware that the common law rules contained within the repealed Masters and Servants Ordinance are no longer of first resort status and that if any such rules still exist at all within the Labour Jurisdiction of Trinidad and Tobago that such an existence would be only from the tolerance of the principles and practices of good industrial relations. This would also mean that the effluxion of time being used as the reason for the non-renewal of the Aggrieved worker in this case has to fail as a proper reason because the Employer failed to apply this reason through the lens of good industrial relations principles and practices as proven from the quotations from the judgments presented above.
(11)???????? How Were Fixed-Term Contracts Of Employment Interpreted By The Industrial Court BEFORE The Repeal Of The Masters And Servants Ordinance In 2012 and The Effluxion Of Time Rule?
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Over thirty years ago an aggrieved worker employed under a fixed-term contract pursued a trade dispute which resulted in T.D. 66/95, being delivered on July 1st 1996, in the Industrial Court between COMMUNICATION WORKERS’ UNION and TRINIDAD AND TOBAGO UNIFIED TEACHERS’ ASSOCIATION. For me and many other readers of this judgments, it was indeed a landmark example where the effluxion of time common law rule prevailed without any barriers or qualifications. However, it also seems to be one of last judgments in which the Industrial Court turned a blind eye to the unconditional usage of the effluxion of time common law rule. The judgment was so short that it will be best for me to reproduce it below, in its entirety.
“ORAL JUDGMENT
Delivered by His Honour Mr. L. Elcock
In this dispute, the Communication Workers’ Union alleges that Mervyn Millette (“the worker”) was dismissed from his employment with the Trinidad and Tobago Unified Teachers’ Association; (“the Employer”) with effect from 2nd April, 1994 for reasons that were “frivolous and contrary to the contract of employment signed between the worker and the employer.”
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The Union also contended that the Employer’s action was a fundamental breach of the worker’s contract of employment, and furthermore, (to use the Union’s own words), “that the action by the Association is harsh, oppressive, illegal, wrongful and not in keeping with the tenets of natural justice.” The Union has, therefore, urged the Court to agree with their contentions and issue an order or award in favour of the worker.
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On the basis of the written evidence and arguments of both parties, and the oral evidence given by the worker from the witness box, this Court is of the opinion that this is the kind of dispute that should never reach this Court and in fact, is really frivolous and vexatious, and an abuse of the processes of this Court.
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The facts are straightforward. The worker was employed by the Employer as education and research officer, with effect from 3rd April, 1992 on the basis of a written contract which was signed by both parties on 11th February, 1992. The contract expressly provided that the employment of the worker would be for a three year period beginning 3rd April, 1991 ending on 2nd April. 1994, subject to the provisions stated in the said contract. Clause 13 of the contract headed “Renewal of Contract” provided as follows:
“Three months prior to the completion of this contract, the Education and Research Officer shall give notice in writing to the Association whether he desires to remain in its employment, and the Association shall thereupon decide whether it will offer him further employment. If the Association offers him further employment the re-engagement shall be for a period not exceeding three (3) years.”
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The worker was duly employed for the contract period.
By letter dated 29th December, 1993 he wrote to the president of the Employer indicating his willingness to continue working on the basis of the said Clause 13, that is to say, to be engaged for a further three years. The Employer in due course, through its president, Anthony Garcia, wrote to the worker a letter dated 9th March, 1994, indicating to him that the general council of the Trinidad and Tobago Unified Teachers’ Association, at a meeting held on 8th March, 1994 had decided that his contract should not be renewed. There then ensued an exchange of correspondence between the worker and the employer in which inter alia the worker protested that the procedure adopted in not renewing his contract had been improper, and alleged that there was not reciprocity in the provisions, there being an absence of any requirement of notice on the part of the Employer, as against the obligation to give notice on the part of the worker. Eventually the Employer not only paid the worker the gratuity (of approximately $14,000.00 by his own evidence) to which he was entitled by the terms of the said contract of employment, but also gave him a cheque in the sum of $5,064.00 as an ex-gratia payment. The worker himself claimed in the witness box that this payment was a sort of compensation for late notice, but he also referred to its payment as “ex-gratia” which speaks for itself.
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We have carefully perused the terms of this agreement and in the light of the facts presented by both sides and the evidence of the worker from the witness box, it is perfectly clear to us that the contract was performed not only in accordance with its terms but in fact beyond them, in the sense that the Employer paid the worker an additional sum for whatever reason as an ex-gratia payment. There was no breach of the contract, nor was there in our opinion, any breach of the principles and practices of good industrial relations.
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The Union’s claim therefore, as we have said, really has absolutely no merit and should never have been brought before this Court. It is therefore dismissed.”
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In my personal view, the above ruling delivered by His Honour Mr. Elcock pellucidly believes that the effluxion of time rule contained within the common law Masters and Servants Ordinance was the first and only port of call, with no other questions to be asked. Definitely, we can infer from his ruling in this trade dispute that he does not believe that the effluxion of time rule was included when the Minister of Labour had stated within the Parliament in 1972 that “The jurisdiction will be completely divorced from the shackles of common law”.
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On the other hand, the then President of the Industrial Court, His Honour Mr. Addison Khan via TRADE DISPUTE NO 216 OF 2001, delivered on September 18th 2002, in the Industrial Court between BANKING INSURANCE AND GENERAL WORKERS’ UNION and ROYAL BANK OF TRINIDAD AND TOBAGO LIMITED, declared that there should be a transparent approach when dealing with a fixed-term contrast which starkly adhered to the intention of the Government which was captured by the Minister of Labour when he was making his presentation in 1972 about the common law. The following two (2) quotations from this judgment will ascertain that merely relying on the expiration of a fixed term contract of employment will not debar the Industrial Court from seeking out the true reason for the termination of employment:
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Quotation #1: Pages 1 to 2
“The issue giving rise to the dispute
This is a trade dispute between the Banking, Insurance and General Workers’ Union (“the Union”) and Royal Bank of Trinidad and Tobago Ltd. (“the Bank”). The issue giving rise to the trade dispute is the alleged dismissal by the Bank of Stacy Ann Evans (“the worker”). The Union alleged that the Bank dismissed the worker in circumstances that were harsh and oppressive or contrary to the principles of good industrial relations practice. The Bank, on the other hand, argued that it did not dismiss the worker but rather that it did not renew her fixed term contract (“the contract”) in accordance with the terms. It is, therefore, necessary to deal with this issue of the fixed term contract at the outset.”
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Quotation # 2: Page 4
“Inconsistency in contract
There is an inconsistency between clauses 1 and 2 of the contract, since clause 2 appears to provide for termination prior to the expiration of the fixed term. It is unusual for a fixed term contract to be terminable by notice prior to the expiration of the agreed period. It is unnecessary for me to decide, however, whether or not, it is a fixed term contract. It is sufficient for me to say that a worker who serves an employer pursuant to a fixed term contract is a worker within the definition of the Industrial Relations Act, Chap. 88:01 (“the Act”), unless specifically excluded by law. Further, it is well settled that a failure of an employer to renew a fixed term contract upon its expiry can be a dismissal which is harsh and oppressive or not in accordance with the principles of good industrial relations practice. The Court, therefore, has the required jurisdiction to determine whether or not the termination of the contract in this particular instance was harsh and oppressive or not in accordance with the principles of good industrial relations practice and I so hold.”
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TRADE DISPUTE NO. 95 OF 2002, delivered on March 7th, 2006, in the Industrial Court between BANKING, INSURANCE AND GENERAL WORKERS TRADE UNION and LA HORQUETTA REGIONAL COMPLEX, presented readers with two snapshot cases of the approach of the Industrial Court which? explored the unilateral alteration of a permanent worker being made into a fixed-term contract worker and then a fixed-term contract worker who refused to apply for the renewal of his fixed-term contract of employment when it was about to expire. The following three (3) quotations will be self-explanatory with regards to understanding the Court’s snapshot approach to these matters in 2006:
Quotation #1: Page 2
In or about December 2001, the Board of Management introduced a policy whereby persons employed or contracted with the Employer/Complex were asked to re-apply for their jobs upon the expiration of their existing contracts. The Workers were advised of this but refused to re-apply on the basis that they could not apply for a job they already had. By letter dated January 15, 2002 the Employer/Complex terminated their employment on the basis that their contract had come to an end. The Banking Insurance and General Workers Union (“the Union”) in bringing this action against the Employer/Complex claims that the Workers were dismissed in circumstances that were harsh and oppressive or not in accordance with the principles of good industrial relations practice.” (Emphasis by me – DPM) ??
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Quotation #2: Pages 6 to 7
“ISSUES AND FINDINGS OF THE COURT
We are of the view that we ought to treat the issues surrounding Mr. Charles’ employment separate and apart from that pertaining to Mr. Greer. In this regard, the question which arises is whether Mr. Charles was permanently employed during the period 1997 to 1999 or was his employment on a month to month basis as suggested by the Employer/Complex. If it is found that Mr. Charles was permanently employed, did his signature of the declaration of consent amount to a variation in terms of his employment from permanent to contractual?
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There is absolutely no evidence to suggest that at the time Mr. Charles was employed he was told or knew his employment was on short term contract. To the contrary, the evidence is he was told nothing at all and he worked for two (2) years before he was given a contract to sign in 1999 indicating that he was employed on a fixed term contract of six (6) months duration.
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Having read Mrs. Shortt’s letter of June 29, 1999 to the Worker informing him of the change in his employment status, it is clear that the Employer/Complex was merely acting on a directive of the Board of Management of the La Horquetta Regional Complex who likewise was acting on policy guidelines of the line Ministry. The Worker was continuously employed from 1997 to 1999 and in the absence of evidence otherwise, the Court deems his employment over this period as having been permanent.” (Emphasis by me- DPM)
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Quotation #3: Pages 9 to 10
“We concur with the Court’s reasoning in RSBD No 4 of 1996, between OWTU and Schlumberger that we should ‘…look beyond the veneer of the contract and expose to full view what in reality is a mere attempt at circumvention…’ of the rights of the Worker.
Having regard to the facts of this dispute and having assessed the whole of the evidence, it is our finding that the declaration signed by the Worker in 1999 was null and void and did not vary the terms of the Worker’s contract.
Accordingly, we hold that Mr. Joseph Charles was a permanent worker in 2001 and his refusal to re-apply for his permanent job position was not unreasonable. Therefore, his dismissal was unfair, unjust and not in accordance with good industrial relations practice.
The case of the other worker, Mr. Gideon Greer, stands on a different footing. Mr. Greer commenced work on the July 15, 1999. Prior to this however, he received a letter from Mrs. Jacqueline Shortt indicating that his tenure was short term. Unlike Mr. Charles, therefrom Mr. Greer’s employment was for a fixed term ab initio.
Like Mr. Charles, Mr. Greer received a letter every six (6) months stating the period of his contract without him having to re-apply. The difference however, is that Mr. Greer was not a permanent worker so that these fixed term contracts were valid for the periods stipulated. His employment came to an end on December 31, 2001 with the effluxion of time.
Was the dismissal of Mr. Greer harsh, oppressive or not in accordance with the principles of good industrial relations practice? We think not. Was it unreasonable to request Mr. Greer to re-apply for the job? We think not. On the contrary, the Employer/Complex gave Mr. Greer several opportunities to comply with the new directives. He refused. The Employer/Complex was entitled to consider his refusal as indicative of a lack of interest in further employment. His employment was determined by an effluxion of time.” (Emphasis by me – DPM)
(12)???????? How Does The Industrial Court Treat With The Effluxion Of Time Rule AFTER The Repeal Of The Masters And Servants Ordinance In 2012?
With the repeal of the Masters and Servants Ordinance in 2012, it has been observed that the Industrial Court started to treat with the effluxion of time rule more as an exception to termination of the contract of employment provided that all other options were explored.
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In TRADE DISPUTE NO. 87 & 182 OF 2014, delivered on January 31st 2018, in the Industrial Court between OILFIELDS WORKERS’ TRADE UNION and THE UNIVERSITY OF TRINIDAD AND TOBAGO, the Court was faced with an unprecedented situation where a worker who was on a fixed term contract was placed on a suspension with pay for the last nine (9) months of her fixed term contract and her fixed term contract was not renewed although she was never charged with anything or given an opportunity to face her accusers. The following is a quotation of this very short judgment which is quite instructive on how the modern Court perceives the abuse of the common law rule of the effluxion of time:
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Pages 1 to 3
????????? “Delivered By His Honour Mr. Gregory Rousseau
This consolidated Trade Dispute was reported by the Oilfields Workers’ Trade Union (“the Union”) pursuant to the provisions of Section 51 (1) (a) of the Industrial Relations Act Chapter 88:01 (“the Act”) and concerns:-
(a)? The Unilateral Administrative leave and/or Suspension of Ms. Asha Ramkeesoon by letter dated 9th July 2012;
(b) The hiring and appointment of an assistant Vice President during the Administrative leave and/or suspension of Asha Ramkeesoon – Senior Manager Procurement Services on 22nd January 2013; and
(c)? The failure to renew and/or non-renewal of contract and/or dismissal and/or constructive dismissal of Asha Ramkeesoon – Senior Manager Procurement Services by letters dated 25th March 2013, received on 27th March, 2013 and 17th April, 2013 effective 27th March, 2013.
by the University of Trinidad and Tobago (“the University”)? ?
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BACKGROUND FACTS AND ANALYSIS
On the first day of the hearing (29th September, 2016), Ms. Lutchman (Attorney-at-Law) for Party No. 2) conceded that the employer was accepting liability with respect to this Trade Dispute.
As a consequence both Parties agreed to articulate in writing their respective submissions with respect to what damages should be awarded to Asha Ramkeesoon, (“the worker”).
It is not in contention that the Worker was suspended by letter dated 9th July 2012 and remained on suspension until the expiration of her fixed term contract on the 30th April 2013. ?
In other words, this Worker was suspended for an indefinite period of almost nine (9) months. We received no written evidence of the completion of any disciplinary hearing and its appropriate findings with respect to this suspension.
The undisputed facts are that the University (Party No. 2) oppressively suspended the Worker, deceptively awaited the expiration of her contract and harshly and summarily terminated her services.
This dismissal is a classic example of a fundamental breach of the long and well established principles of good and proper industrial relations practices.
The denial of the process of natural justice, and the appropriate conclusion and determination of a disciplinary matter cannot be condoned by the Court.
The Court frowns upon the deceptive behaviour of the University in keeping the Worker suspended for almost nine months awaiting the expiration of her contract in a veiled attempt to conceal their ulterior motive of dismissal. This in our opinion rendered her dismissal to be harsh and oppressive.” (Emphasis by me – DPM)
($900K ordered as damages)
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Also, in TRADE DISPUTE NO. 464 OF 2017, delivered on July 27th 2018, in the Industrial Court between ADVOCATE TRADE UNION and NATIONAL INFORMATION AND COMMUNICATIONS TECHNOLOGY COMPANY LIMITED, the effluxion of time rule was again utilized by the employer to justify the termination of the contract of employment. The following three (3) quotations will demonstrate why it was not accepted as a justifiable reason to terminate the contract of employment:
Quotation #1: Pages 2 to 3:
????????? “The Undisputed Facts:-
The Worker was hired by the Company on April 17th 2014 on a fixed term Contract for a period of (3) years in the position of Head Internal Audit.
During the period March 2016 to April 16, 2017 the Worker was the sole staff member and functionary in the Internal Audit Department of the Company.
By letter dated January 6, 2017 the Worker showed her interest in renewing her contract of employment for an additional term in accordance with the terms of the Contract.
By letter dated 15th March, 2017 the Chief Executive Officer informed the worker that –
“This serves to advise that the Company wishes to exercise its option to not engage your services upon the expiration of your contract of employment.”
The worker’s Contract was allowed to continue until it came to an end by the effluxion of time on 16th April, 2017.” (Emphasis by me - DPM)
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Quotation #2: Pages 5 to 6:
????????? “Issue:-
Whether or not the Worker’s services were terminated in a harsh and oppressive manner when her contract of employment ended by the effluxion of time.
The Law:-
In Trade Dispute No. 216 of 2001 between Banking Insurance and General Workers’ Union and Royal Bank of Trinidad his Honour Mr. Addison Khan at page four (4) stated as follows:
“Further, it is well settled that a failure of an employer to renew a fixed term contract upon its expiry can be a dismissal which is harsh and oppressive or not in accordance with the principles of good industrial relations practice.”
On the other hand, in Selwyn’s Law of Employment – Oxford University Press 18th Edition at page 69 paragraph 2:142 states as follows:
“Expiry of the fixed term – If a fixed term contract is not renewed on expiry that will not amount to a dismissal at the common law, because the contract has been terminated automatically by the effluxion of time. However, non-renewal under the same contract will be a dismissal for the purpose of the Employment Relations Act (ERA). Whether the dismissal was fair or unfair will be determined by whether or not the employer can show that he acted reasonably in not renewing the contract.”
In ESD-TD No. 2 of 2007 between GIGWU and Northwest Regional Health Authority, delivered on July 23rd, 2007, the Court at page five (5) stated:
“…whenever an employer in defending a dismissal dispute has raised a defence the “right” to dismiss by bare notice based on a contract term, that defence has not found favour with the Court. The Court’s finding in this regard are reflected in numerous decisions. It has been made clear by the Court that in all but exceptional cases an employer must give the worker reasons for dismissal and an opportunity to be heard before effecting termination. Neither the fact that a contract provided for dismissal, or one month’s notice nor that a worker was employed on a month to month basis amount to exceptions to this principle of good industrial relations.” ”
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Quotation #3: Pages 8 to 9:
????????? “Findings:-
The Company having received a Directive from the Chief Personnel Officer had no alternative but to change the job title from Head Internal Audit to Internal Auditor and correspondingly reduce the salary from $30,000.00 to between $22,000.00 - $25,000.00 per month.
The Worker in accordance with the terms of her contract of employment, had by letter dated 6th January, 2017 expressed an interest in renewing her contract of employment.
The Company failed to respond to the Worker’s letter of 6th January, 2017 and therefore by its failure to respond breached the Worker’s contract of employment.
In accordance with the directives given by the Chief Personnel Officer the terms and conditions of the job had been changed. Therefore it was a new job.
The Company failed to consult with the Worker the effects that the change would have on her and her job, and the possible measures for averting or mitigating the effects.
The Company terminated the Worker’s services on the expiration of her contract of employment and advertised the new job of Internal Auditor for which the worker declined to submit an application.
We therefore find that the Company acted contrary to the principles of good industrial relations practice in not replying to the worker’s letter of interest and further, in not holding consultation with the worker in that respect.”
($100K ordered as damages)
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The following two (2) quotations from Trade Dispute No. 376 of 2019, delivered on January 10th 2023, in the Industrial Court between Government, Industrial and General Workers’ Union and Western Scientific Company Limited are quite instructive in this regard:
Quotation #1: Pages 10 to 12
“The unchallenged evidence of the worker is that on the 16th September, 2016, she was called to the office of the Human Resources Assistant and handed her termination letter. The Human Resources Assistant then instructed her to pack up her desk. The Human Resources Assistant then ordered her to leave and escorted her out of the building.
The Court finds this unchallenged version of events to be uncharacteristic of a terminated fixed term contract.
If as the Company contends, this was simply the end of a fixed term arrangement, why then didn’t they just allow the worker to work up to the 3rd November, 2016.
What circumstances prevented the employer from fulfilling their contractual agreement was not articulated in their letter of 16th September, 2016.
One of the benefits paid to the worker as articulated in the termination letter was:- “Two month’s (sic) salary in lieu of notice; refer to clause 8 (b) of your employment contract dated 10th October, 2013.”
Clause 8 (b) states inter alia:-
(a) “The Company shall have the right to terminate this agreement without liability for compensation or damages upon the happening of any of the following events.
(b) By two months written notice or payment of two months’ salary in lieu of notice for any reason whatsoever after successful completion of probation or.”
Be reminded that the employer’s case is that the worker’s services was terminated because her contract expired. However, the contract does not provide for two months’ salary in lieu of notice at the expiration of the contract. As clearly stated in Clause 8 (b), this payment is only applicable when the contract is TERMINATED. (Emphasis Ours)
This contradiction is also not consistent with the features of a terminated contract that has expired.
Instructively, Clause 8d states:- “Forthwith, if the employee is guilty of any grave misconduct, willful neglect, gross negligence or incompetence in the performance or discharge of her duties hereunder or misconduct prejudicial to the interest of the Company or any of its associated companies or. ”
This particular Clause was not articulated anywhere in the termination letter or in the presentation of the Company’s case.
Interestingly, paragraph 26 of the Company’s evidence and arguments states:-
“The Company contends that the worker’s services were terminated in keeping with her employment contract and were due to non-performance and the worker’s inability to perform her duties competently. The Company further contends that it provided multiple opportunities for the worker to address any shortcomings and even offered guidelines and constant supervision and pointers through her coordinator Mr. Narcis. The worker was employed with the Company for the period of three (3) years and throughout that time, she was still unable to grasp basic concepts which had a direct impact on her ability to completely carry out her duties. Further, despite management’s attempts to correct and assist the worker in these shortcomings, the worker did not address any of these issues. The Company alleges this was contrary to good industrial relations practices.”
This particular argument clearly signifies that contrary to this expiration contention, the worker was terminated due to non-performance and her inability to perform duties competently.
In addition and of great significance, is that ELEVEN (11) paragraphs of the Company’s Evidence and Arguments are dedicated to poor performance issues by the worker.
The obvious question is of what relevance is the poor performance of a worker whose contract is terminated due to effluxion of time.” (Emphasis by the Union)
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Quotation #2: Pages 14 to 15
“THE RULES AND PRINCIPLES OF NATURAL JUSTICE
As mentioned earlier, eleven (11) paragraphs of the Company’s evidence and arguments addressed poor performance issues by the worker. Paragraph 26 and the termination letter clearly exposes that contrary to the effluxion of time argument, the worker was dismissed for alleged poor work performance.
?However, with complete disregard to the rules of natural justice, none of these alleged performance issues were reduced to disciplinary charges.
Also, no disciplinary hearing was conducted to afford the worker the right to mount a defence in response to these charges. Instead, the Company harshly summoned her to a meeting on the 16th September, 2016 and summarily dismissed her by letter of the same date.
The oppressive manner of her dismissal was further compounded by the instructions of the Human Resource Assistant, that she pack up her desk and leave immediately and if this was not enough, the Human resource Assistant proceeded to escort her out of the building as if she was guilty of some wrongdoing.
What about these unchallenged events are consistent with an effluxion of time contract is beyond the Court’s comprehension.
If as the Company contended, the Contract expired, then all that was required was to wait until the 3rd November, 2016, simply say goodbye and wish her the best, but for reasons best known to them, they chose the route of summary dismissal.
The poor performance of a worker may be good reason for the non-renewal of a fixed-term contract. However, when an employer contends that the contract was terminated with the effluxion of time, then the alleged history of poor performance are completely irrelevant.?
On the basis of all of the evidence adduced, we are comfortable in finding that the termination of the worker’s services was for alleged poor work performance and not that her employment contract expired.
It must be emphasized that all terminations whether during fixed terms or not, attract the rules of natural justice and the right to be heard. This is a fundamental principle of good industrial relations.
As a consequence, we hold and so find that the dismissal of the worker was executed in circumstances that were harsh, oppressive and contrary to the principles and practices of good industrial relations practices.” (Emphasis by me - DPM)
($300K awarded as damages)
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Likewise, Trade Dispute No. GSD-TD 138 of 2021, delivered on February 26th 2024, in the Industrial Court between National Union of Government and Federated Workers and Public Transport Service Corporation will pellucidly demonstrate that an employer cannot merely rely on the effluxion of time in order to justify its decision not to renew the contract of employment where the duties remain as part of the operational requirements of the employer and they therefore still need to be performed:
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Quotation 1: Pages 10 to 12
“THE LAW
In Trade Dispute No. 216 of 2001 between Banking Insurance and General Workers’ Union and Royal Bank of Trinidad (sic) His Honour Mr. Addison Khan at page 4 stated as follows:
“Further, it is well settled that a failure of an employer to renew a fixed term contract upon its expiry can be a dismissal which is harsh and oppressive or not in accordance with the principles of good industrial relations practice.”
On the other hand in Selwyn’s Law of Employment – Oxford University Press the 18th Edition at page 69 paragraph 2:142 states as follows:-
“Expiry of the fixed term – if a fixed-term contract is not renewed on the expiry, that will not amount to a dismissal at common law, because the contract has been terminated automatically by effluxion of time. However, non-renewal under the same contract will be a dismissal for the purpose of the ERA. Whether the dismissal was fair or unfair will be determined by whether or not the employer can show that he acted reasonably in not renewing the contract.”
In Trade Dispute No. 21 of 2015 between Banking Insurance and general Workers’ Union and Tobago House of Assembly delivered on August 17th, 2015, Her Honour Deborah Thomas-Felix, at paragraph 20 and 21 of the judgment said:-
“This is not to say that a fixed-term contract is not recognised in our law or by this Court or that in every case of the automatic termination of a fixed term contract there arises a successful claim of unfairness, if it is not renewed. The precedents of this Court demonstrate that, like all other disputes coming before this Court, the resolution will depend on the facts and circumstances of each individual case and an assessment made on the whole of the evidence regarding whether the treatment of the worker by the employer is harsh and oppressive or not in accordance with the principles and practices of good industrial relations.
Put another way, even if a contract is upheld as one for a fixed-term, where there is a dispute in relation to that contract this Court is called upon to resolve, the conduct of the parties under that contract will be assessed by the criteria laid down in the IRA by which this Court must determine all disputes and the Court will make its awards or orders according to its factual findings and its application of those principles.”
In the said judgment, in considering the issue of whether there was in effect a dismissal or a legitimate expectation or renewal of a fixed term contract, Her Honour Deborah Thomas-Felix stated at paragraph 22:-
“we are not constrained by the label placed by the parties on the contractual relationship. This is only one consideration. What is important is the reality of the course of dealings between the parties and the principles and practices of good industrial relations in general. This is the overriding consideration to come an understanding of the true legal nature of the relationship.”
The Court in many of its decisions including Hindu Credit Union has endorsed ILO Convention C158 Termination of Employment Convention, 1982, Article 4 which states as follows:-
“The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.” ”
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Quotation 2: Page 12
“ANALYSIS AND FINDINGS
The Court in addressing the first issue must examine whether the Corporation’s decision not to renew the Worker’s contract in all the circumstances was fair and just and in keeping with the principles of good industrial relations practice. The onus is on the employer to submit evidence to show that the reasons for the non-renewal were reasonable and that the manner in which it took that decision conformed with good industrial relations practice.” (Emphasis by the Union)
($100K ordered as damages)
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Identically, Trade Dispute 30 of 2018, delivered on June 14th 2024, in the Industrial Court between Banking, Insurance and General Workers Union and Export Centres Company Limited is also quite instrumental in recognizing that the effluxion of time cannot be accepted in the face of the fact that the reasons for the non-renewal are not consistent in a fundamental manner. The following two (2) quotations from Trade Dispute 30 of 2018, definitely embellish the argument that the effluxion of time cannot be used as a first resort to justify the non-renewal of a contract before an employer proves that the operational requirements of its organization did not require the duties of the incumbent to continue. Additionally, where an employer presents a completely different reason at the Court which impacted on the non-renewal, the Court will be empowered to examine whether such a different reason may actually have been the true reason instead of the reason of the effluxion of time. Thereafter, once the Court has come to recognise that a different reason has been introduced at the Court for the first time then the Court would be empowered to discover whether due process had been applied before the dismissal for cause took place since the effluxion of time reason would be out the window because it cannot be deemed to be the true reason anymore. In this case, the issues identified at Paragraph 14 of the Employer’s witness statement are indeed grave issues and they may also be linked to life and limb and the ability of the Employer to perform its special statutory duties. Yet the Employer failed to conduct a proper investigation into the allegations choosing instead to use the allegations not to renew the fixed-term contract of employment of the Aggrieved and also choosing to mention the allegations within the witness statement of the Employer’s sole witness.
Quotation 1: Pages 4 to 5
“The reasons given in this letter, by the Employer are:
“Given the current status of the company, whereby no activities or operations are currently taking place, the need for other contract positions cannot be justified when the respective tenure comes to an end. Further, the organization is not under an obligation to renew a fixed term contract of employment.”
The reasons in the subsequent letter, dated 3rd April, 2017 are different from that contained in the termination letter dated 31st April, 2017.
In keeping with the principle of good industrial relations practice, it is expected that the reasons would have been consistent, if not, the same.
The Employer seemed to have changed its mind as far as the reasons are concerned. From all appearances, the Employer was not certain as to the reasons for the worker’s termination.
Such doubts are anathema to the relationship of employee and Employer and the principle of good industrial relations practice requires that the true reasons be given to the worker. It cannot be fair and just to give reasons in that ambivalent and inconsistent manner.
It is a principle of good industrial relations practice that an Employer is required to inform the worker of the correct reason for his non-employment.
This is so because the worker has to know the reason in case he wants to challenge his non-employment.”
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Quotation 2: Pages 6 to 7
“Concerning the organization, the Union referred to the following paragraph in the Employer’s witness statement-
“Ms. Khan was appointed by fixed term contract since the approved organizational structure of the Company at the material time had no position for Manager, Human Resources. There was a proposed organizational chart on or around the time the Worker was appointed but this organizational structure was never approved hence the reason Ms. Isha Khan could not be appointed in a permanent position as Manager, Human Resources but instead had to be appointed on a contractual basis.”
and argued that contrary to that statement, this Chart was not approved because there were no positions mentioned therein and there was no indication that it was approved; the Employee’s (sic because it should read Employer’s) witness did not tender any contrary evidence to the Court’s satisfaction in rebuttal.
The Employer’s witness however confirmed that each Section mentioned in that Chart is headed by an officer who, in the case of the Human Resources, would have been the Human Resources Manager (HRM) namely, the worker. The chart therefore, had the position of HRM. If the Chart was approved as put forward by the witness, it meant that the HRM was in the approved Chart and would have been a permanent post; the logical deduction on the basis of the witness evidence. It is clear therefore that contrary to the witness’ (sic) evidence, the position was, in fact, on the proposed Chart.
The Court finds that the witness’ statement is not supported by the oral evidence presented and that the position was indeed in the chart and as such, necessary for the proper functioning of the Employer.”
($93K ordered as damages)
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Correspondingly, in TRADE DISPUTE NO. 264 OF 2017, delivered on July 18th 2024, In the Industrial Court between PUBLIC SERVICES ASSOCIATION and THE MINISTRY OF HOUSING AND URBAN DEVELOPMENT AND CHIEF PERSONNEL OFFICER, the Court rejected the justification of effluxion of time from an employer which terminated the employment services of a worker on grounds that the duration of the fixed-term contract had ended. The following three (3) quotations from this judgment with be quite self-explanatory on the contentious common law rule of the effluxion of time:
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Quotation 1: Pages 8 to 10
“CASE OF 1ST AND 2ND PARTY NO. 2
EVIDENCE IN CHIEF OF SIMONE THORNE-MORA QUINONES (PERMANENT SECRETARY MINISTRY OF HOUSING)
Her witness statement stated inter alia:-
“Immediately prior to my assuming duties as the Permanent Secretary (Ag.) in the aforementioned Ministry, the Prime Minister of Trinidad and Tobago, the Hon. Dr. Rowley instructed the Ministry of Finance to direct the Management of every State Enterprise, Statutory Body and each Ministry to not only review their operations but also make identifiable adjustments of a 7% reduction in proposed operating expenses thereby eliminating waste and / or inefficiencies. As such, I was tasked with managing the Ministry and its resources in a prudent and fiscally responsible manner.
There were some Clerk/Typists and Clerk/Stenographers who were required to provide secretarial and administrative support to management that were under-utilized and receiving full pay. Another consequence of this realignment was that the Ministry was now much smaller and as such, the contract positions that were created in instances where Public Service could not supply the expertise or manpower were no longer necessary.
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Given the circumstances, when the Worker’s contract came up for renewal I questioned in writing why this was so and indicated that I would not be renewing her contract on the grounds that the Ministry had a surplus of established staff who were hired to and could perform the duties that she was performing, that is, the provisions of secretarial and administrative support.
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Subsequent to these events, at a meeting held in April 2016 with Mr. Christopher Joefield and Mr. Ian Murray and other Union representatives, I explained my concern about the fact that persons who had been informed that their services would no longer be required due to redundancy were allowed to offer up themselves for and be voted into office. At a 3rd meeting with Mr. Watson Duke, President of the Public Service Association on 18th June 2016, I again fully explained my action and the reason for my action, viz; advising the Director, Human Resources, that I would not be renewing Ms. Best’s contract after the current one (4th April 2016 to the 1st July 2016), expired because of the presence of surplus establishment Secretarial staff in the Ministry since the realignments.
The Ministry subsequently retained the services of an Industrial relations Consultant, Mr. Rennie Ambrose to assist in the calculation of separation packages to persons whose contracts were not renewed because of redundancy.
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I was informed that the matter involving the Worker was in fact unresolved at conciliation proceedings which took place on the 7th February 2017 since the Worker refused to accept the quantum ($6,000) offered to her by Mr. Rennie Ambrose, who acted on behalf of the Ministry and myself, in full and final settlement of her claim. This quantum was calculated using the Retrenchment and Severance Act (sic) formula cited in the Retrenchment and Severance Benefits Act. Chapter 88:01. ””
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Quotation 2: Page 15
“THE EMPLOYER’S CASE
Paragraph 20 of the evidence and Arguments of the Ministry (1st Party No. 2) stated inter alia:-
“On 1st July, 2016 as per the stipulated contract period, her contract of employment expired by the effluxion of time.”
However, inconsistent with its own evidence and arguments, Ms. Quinones (Permanent Secretary) testified in her evidence in chief the following contradictory evidence in Paragraph’s 11 and 15 of her witness statement which stated inter alia:-
“Subsequent to these events, at a meeting held on April 20th with Mr. Christopher Joefield and Mr. Ian Murray and other Union representatives, I explained my concern about the fact that persons who had been informed that their services would no longer be required due to redundancy were allowed to offer up themselves for and be voted into office.
The Ministry subsequently retained the services of an Industrial Relations Consultant, Mr. Ronnie Ambrose to assist in the calculation of separation packages to persons whose contracts were not renewed for redundancy.”
Also, she testified that in an attempt to resolve the dispute during conciliation at the Ministry of Labour, a quantum was offered to the Worker based on calculations using the retrenchment and Severance Act.
As a result of this fundamental contradiction in the Employer’s case, the Court was now forced to determine whether the Worker’s services ended with the effluxion of time or, was she retrenched.
Critical in determining this dispute, is the fact that none of the evidence received from Ms. Quinones, remotely suggested that the Worker’s services were terminated due to effluxion of time.”
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Quotation 3: Pages 16 to 18? ?
“COURT’S ORDER ON WRITTEN SUBMISSIONS
On the basis of critical conflicting evidence by the Employer, the Court stated:-
“We find as a fact that there was a fundamental breach and the Worker’s rights were infringed and the conduct of the Employer was inconsistent with good industrial relations practice.”
As a consequence, the Court ordered Parties to submit written submissions on damages.
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CONCLUSIONS
Having admitted that the Worker functions were deemed to be redundant, it is logical to conclude that the Worker was retrenched.
As a consequence, the Employer was mandated under the Law (Act 32 of the 1985) (sic) to follow all of the various procedures mandated by the legislation. As we now know, not a single provision was adhered to, for e.g.:-
1.???? Written Notice.
2.???? Notice to the Minister.
3.???? Prior Consultation.
4.???? Selection criteria.
Also, as important as the provisions of the Law are concerned, equally important was the fact that at no time prior or subsequent to her dismissal, was the Worker informed that her functions were redundant. She was never told that the nature of her dismissal was a retrenchment.
It was only during the trial arising out of Quinones’ evidence that the true reason for the Worker’s dismissal was revealed. Instructively, Quinones testified that a quantum of money was offered to the Worker as compensation for her termination.
This offer by the Employer strongly suggest that the Employer was aware from the inception of this episode, that their decision to terminate was procedurally flawed.
It’s quite elementary that fixed term contracts that ended due to the effluxion of time, do not attract compensation for years of service, unless of course, it’s expressly stated in the Worker’s terms and conditions of employment.
On the question of victimization for Trade Union Activity we make no finding except to say that we found it very concerning that a number of Workers who were recently elected to represent Workers were terminated.
However, because of the concession by the Employer, we see no need to determine whether the Union’s issues played a major role or otherwise in the Worker’s dismissal.
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FINDINGS
Therefore, on the basis of all of the evidence adduced, we find and so hold that the termination of the Worker’s Services were effected in circumstances that were egregious, harsh, oppressive and contrary to the most fundamental principles and practices associated with a retrenched Worker.”
($240K was awarded as damages)
(13)???????? MODERN EXCEPTIONS When Dealing With The Fixed-Term Contract And The Application Of The Effluxion Of Time Rule
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The following quotations will demonstrate that an employee cannot have a reasonable expectation for the fixed-term contract of employment to be renewed under circumstances of employment where his fixed-term contract did not have a renewal clause because he was employed under a project that came to an end. Additionally, there are certain types of work which are seasonal in nature so the fixed term contract would last as long as the seasonal work and once the season ends then the employment relationship ends also. The following two (2) judgments will be instructive in this regard.
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Trade Dispute No. 639 of 2016, delivered on February 13th 2019, In the Industrial Court between Steel Workers’ Union of Trinidad and Tobago and The National Gas Company of Trinidad and Tobago:
(Pages 13 to 15)
“ISSUES TO BE DETERMINED
Arising out to the evidence presented, the issue to be determined is whether the worker had a genuine expectation of continued employment for a period of two (2) years.
FACTS AND ANALYSIS
Essentially, the Union’s case is that arising out of the letter signed by Sarjad, the worker genuinely believed and expected that his contract would be extended for a period of two years.
In other words the Union argues that his letter constituted a legitimate expectation by the worker.
In its evidence and arguments, the Union described the worker’s terms and conditions of employment as a fixed term contract for two (2) years. Therefore, it is not in contention that at the time he was engaged the worker full well knew that he was employed for a fixed period of two (2) years.
His contract of 25th April, 2013 makes no provisions for either extensions or renewals.
This Trade Dispute is a “RIGHTS DISPUTE” therefore the onus is on the union to establish as they contended, where that “RIGHT” exists.
The only evidence received that remotely alluded to the status of the worker’s employment, is the Union’s much relied on letter of October 29th, 2014. The relevant paragraph read: “Due to the nature of Mr. Hordatt’s job function and the volume of ongoing projects which are being undertaken by NGC currently, Mr. Hordatt’s contract is expected to be extended for a further two (2) year period with NGC.”
The operative words used are “expected to be extended”. These terms certainly don’t express any guarantee of a two (2) year extension of employment.
The Court will not speculate as to why the Credit Union approved the loan in the absence of such a guarantee, however, we are satisfied that no Right to extend employment is expressed. Hordatt denied bullying and begging Sarjad for the letter. Sarjad on the other hand was adamant that the worked begged and hounded him down for the letter.
If Sarjad’s version of events is to be believed, then such an infraction should have attracted the attention of the Company’s Senior Management and dealt with appropriately.
Notwithstanding Hordatt’s begging and pleading, Sarjad was under no obligation to issue such a letter knowing full well as he himself testified, that he had no authority to pronounce on the terms and conditions of employment of any NGC employee.
However, the circumstances surrounding the truth as to how this letter emerged are irrelevant to this instant dispute.
In paragraph 15 (2) of his witness statement, Hordatt stated inter alia:-
“The Company gave me valid expectation in a two (2) year extension of my contract by its conduct in writing to the Eastern Credit Union its position that I was expected to get a two (2) year extension due to the volume of work being undertaken”.
However, under cross examination Hordatt admitted that the relevant paragraph of the letter expressed no guarantee of a two (2) year extension of employment.
Therefore, on the basis of all the evidence adduced in this matter, we find and so hold that no RIGHT to an extended period of employment existed in the terms and conditions of employment of Mr. Hordatt. The Company’s failure to extend his employment by a further two (2) year contract was not contrary to good Industrial Relations practice.”
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Similarly, in Trade Dispute No. 612 of 2018, delivered on July 7th 2022, in the Industrial Court between Communication Workers’ Union and Marlog Services Limited:
(Pages 13 to 17)
“ISSUE
The issue that arose for the Court’s determination was whether the Worker was dismissed “effective April 20, 2017” in circumstances that were harsh and oppressive, or not in accordance with the principles of good industrial relations practice, or whether the Worker’s contract came to an end by the effluxion of time.
Further, and ancillary to the main issue was whether the Employer owed a duty to the Worker so that even though his fixed term contract may have ended on-board the Bourbon Rainbow, he should have been reemployed once work was available on another vessel. (Emphasis by me – DPM)
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ANALYSIS
In her book, Labour Law in The Commonwealth Caribbean: The Practice of Good Industrial Relations in the 21st Century, the author, the President of the Court, H.H. Mrs. Thomas-Felix explained in relation to fixed-term contracts:
“…By their very nature, are not intended to be permanent but rather temporary and short term arrangements. The main features of these types of contracts are that they contain a commencement date, and usually a specified date of expiration.”
H.H. Mrs. Thomas-Felix went on to outline at page 58 that:
“Strictly speaking, when a fixed-term contract ends, the contract of employment and the employment relationship ends; the parties go their separate ways and there is no legal duty or obligation for re-engagement on the part of anyone. Indeed, only when there is a contention by the parties on whether or not the employment is a genuine fixed-term contract or permanent employment that the issue is brought to the Courts for resolution. The Courts examine the employment relationship between the parties to determine its true nature, and then ascertain, whether the employer had a duty or obligation to the person employed. In other words, the Courts determine whether or not there exists a fixed-term contract (and therefore temporary employment) or permanent for an indeterminate period.”
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In ESD TD No 8 of 1999, the Court was required to determine whether the worker employed as an Airport Attendant by the Airport Authority on a series of short term contracts was dismissed in circumstances that were harsh and oppressive or not in accordance with the principles of good industrial relations practice. The Court stated at page 12 of the judgment:
“This case is distinguishable from the earlier cases in that here the worker was employed on a fixed term contract which had run its course. Had the union been able to persuade the Court that the contract was anything but a true fixed term contract or that the Authority had by its conduct caused the Worker reasonably to believe that the contract would be renewed the outcome might have been different.”
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Many disputes arise over the failure of the employer to renew a fixed-term contract. However, it is only when the Court is persuaded by evidence that establishes that the contract was not a true fixed-term contract, or the parties implicitly or expressly varied the contract creating an obligation to the person employed for the contract to continue, would it be within the Court’s prerogative to determine that Worker was dismissed.
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There was no evidence in this Trade Dispute to establish that the Worker’s contract with the Employer on board the various vessels from July 2014, until April 2017, or on the Bourbon Rainbow were not true fixed term contracts. The evidence presented supported the fact that the Worker’s employment contracts with the Company over the years were true fixed term contracts. The Company did not own any vessels and were only able to employ workers when contracts were secured.
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There was no evidence to establish that there existed some contractual relationship between the Worker and the Employer wherein the Employer was duty bound to engage the Worker once work was available. Such arrangements where the employer is duty bound to engage workers once work is available at the end of a project is not new to this Court, especially in the construction industry where at the end of construction projects workers are employed on the employer’s compound, referred to as ‘in the yard’ on reduced salary rates until a new project commences. Thereafter, the employer is duty bound to employ the worker on new projects. In some cases rosters are created based on seniority or the rotation of work, with workers on the top of the list having the right to be engaged first. However, in this case there was no evidence to establish that such a contractual relationship existed.
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Additionally, the terms and conditions of employment document which formed part of the written contract of employment at paragraph 6.5 stated, “Once the SEA has expired, no party is obligated to issue or accept any subsequent contract.” ?
It is this Court’s conclusion based on the evidence that the previous contracts between the Employer and the Worker were true fixed term contracts and “… strictly speaking, when a fixed-term contract ends, the contract of employment and the employment relationship ends; the parties go their separate ways and there is no legal duty or obligation for re-engagement on the part of anyone.”
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On the issue of the treatment of the Worker on board the Bourbon Rainbow, the Court found that the Employer acted consistent with the principle and practices of good industrial relations.
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The Employer received a report of misconduct, they investigated the report and found that the Worker did not engage in misconduct. However, the Employer did not have ultimate control of the vessel and were unable to reinstate the Worker. The Employer utilized the next best alternative available by offering the Worker alternative employment on another vessel for the duration of the Worker’s contract. This offer was accepted by the Worker and he was engaged as evidenced by the written contract signed by the Worker for work on board the Bourbon Explorer 508.
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There was a gap of approximately 14 days where the Worker was not paid his salary before he started work on board the Bourbon Explorer 508. However, through the Worker’s prompt action his issue was addressed and the dispute settled.
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FINDINGS
This Court concludes, based on the evidence presented in this matter that the Worker was not dismissed “effective April 20, 2017”. The Worker’s contract on the Bourbon Explorer 508 came to an end by the effluxion of time. Further, the actions of the Employer, in treating with the decision of the Captain of the Bourbon Rainbow, were consistent with the principles and practices of good industrial relations. (Emphasis by me – DPM)
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ORDER
As a result of the Court’s findings, this Trade Dispute No. 612 of 2018, is hereby dismissed.”
(14)???????? CONCLUSION
From all of the quoted sources above, I have concluded that the explicit intention of Parliament from 1972 onwards has always been geared towards the erosion of the Common Law approach so that social justice would be facilitated through the statutory provisions of the Industrial Relations Act and any other statutory instruments which were linked to the Labour Jurisdiction of Trinidad and Tobago. It therefore begs the question in Trinidad and Tobago in 2024, as to why, in both the private sector and the state enterprises, so many employers continue to promote the abuse of the effluxion of time rule and seek out lawyers, HR Managers and Industrial Relations Consultants who will do their bidding against the established jurisprudence of the Industrial Court. What is even more interesting is that offending employers are normally advised to frustrate the aggrieved workers in any possible manner including the following age-old tricks:
????? I.??????????? They challenge membership in good standing with the minority union;
?? II.??????????? They challenge worker in accordance with the definition contained within the Industrial Relations Act even though these contract workers have no policy making function whatsoever or stable tenure of employment;
III.??????????? They claim to have a full and final settlement although the said document completely ignores the basic statutory provisions of the Retrenchment and Severance Benefits Act;
IV.??????????? They claim that they had conducted a restructuring exercise although they never consulted with the worker, explored suitable alternative employment, submit evidence to prove that the worker the operational requirements no longer require the worker or informed the Minister of Labour of the so-called restructuring exercise;
?? V.??????????? They claim that the worker had abandoned the job or had verbally resigned from the job, yet these same employers can never provide documentary proof that they had in fact delivered at least one (1) letter to the worker confirming any of these claims;
VI.??????????? They even claim that they have no employment relationship with the worker because he is supplied by an agent who pays him a salary under a contractor for service arrangement; and
VII.??????????? They claim that the fixed-term contract came to its natural end due to the effluxion of time rule.
All of the above definitely repeat themselves time and time again in this little country, hence the reason why so workers always see the need to be a member of a minority union in a secretive manner because they believe that they receive better advice from the minority unions than the representatives from the companies who they believe are carrying out the sinister plans of the companies that violate the principles of good industrial relations practice on a daily basis. Small wonder that there are now so many minority unions operating as a business because there are so many cases dealing with unfair terminations of employment in this Country. As an employer, do you believe that your employees prefer the advice from your HR Department than what they may receive from a minority union out there? ??
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End.
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