FIXED-TERM CONTRACTS Of EMPLOYMENT Must Respect Principles On Retrenchment & Redundancy

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1.????????????? INTRODUCTION:

This is my fourth standalone article dealing with another aspect of the FIXED-TERM CONTRACTS OF EMPLOYMENT. The focus of this article is to demonstrate that the same principles and statutes which are applicable to circumstances of redundancy and retrenchment for permanent workers in Trinidad and Tobago are also MANDATORY when dealing with the the LEGITIMATE EXPECTATION FOR THE RENEWAL OF FIXED-TERM CONTRACTS OF EMPLOYMENT AND ENTITLEMENTS TO STATUTORY BENEFITS SUCH AS MATERNITY LEAVE WITH PAY. Therefore, it is essential that we read the relevant judgments on RETRENCHMENT AND REDUNDANCY before we provide any company with the appropriate advice when the issue of the renewal of the fixed-term contract of employment, amongst other things, is on the table.

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I did not invent the view that Industrial Relations Advisors should read the judgments before giving advice to any company. That is a view which was espoused by the renowned Industrial Court judge His Honour Mr. Addison Khan within an INTERPRETATION which he gave on January 14th, 1991, dealing with TRADE DISPUTE NO. 1 OF 1989, thirty-four (34) years ago. The following quotation captures his exact words on the matter:

(Page 38)

“This Court is a specialized Court and it is incumbent upon those whose responsibility it is to advise employers on industrial relations matters that they should become acquainted with the provisions of the Act and the Judgments of this Court and applicable Judgments of the Court of Appeal. Failure to do so could lead, as in this case, to unnecessary expense.” (Emphasis by me – DPM)

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Within this same judgment, His Honour Mr. Khan had also stated that the Industrial Court has to be accessible to the lawyer and the layman in the same manner. The following quotation will lucidly demonstrate that the Industrial Court is indeed a layman’s court:

(Page 32)

“…even though the Court is a Superior court of Record, the Court is charged with the responsibility of hearing and determining trade disputes and related matters and as a result it must be accessible to lawyers, trade union officials and employers’ representatives. Section 9 (2) provides that the parties to the proceedings are entitled to appear before the Court in person or be assisted in the presentation of their respective cases by Attorneys at Law or by duly authorized representatives. The court’s procedures must, therefore, be capable of being understood by lay persons and lawyers alike.”

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From the above two (2) quotations, I am hoping that everyone would easily appreciate what I meant when I stated in the past that the pursuit of Industrial Relations knowledge is not to pass an exam because it is not a class room subject. Industrial Relations principles and practices are actually about the HUMAN RIGHTS of every individual worker and how such rights engage with the routine operations at every company, therefore, competence within this field is mainly based on on-the-job training in the same manner as other areas of the operations. Ironically, the most technically sound worker in any area of operations is put in charge of those areas of operations while under Industrial Relations, almost every company places the HR Department over the most technically sound worker within the field of Industrial Relations although the HR staff are in no position to second guess the advice from any Industrial Relations worker because they are too busy to find the many hours a week to read the judgments being referred to by His Honour Mr. Addison Khan. The bottom line, after all has been said and done, is that every worker at a company must conduct themselves in accordance with the principles and practices of good Industrial Relations which include, not only the rights of workers but also the rights of a company. Whether or not workers wrote an exam in Industrial Relations, every worker is expected to recognize the rights of every company once there is an employment relationship. Similarly, as you will see in this article, even though the operational managers and supervisors did not participate in class-room training in Industrial Relations, they still remain the first-hand witnesses that the Industrial Court wants to hear from instead of the HR Managers who are deemed to be second-hand and even third-hand witnesses because they are never in direct contact with most operational employees. HR Managers are first-hand witnesses only to the staff of the HR Department. It is not premature to state at this stage of this article that first-hand witnesses are those members of staff who have to deal with documents as a direct representative of the company including such integral documents as letters applying progressive disciplinary action, statements making complaints that may result in a fact-finding investigation and even an inquiry. Such operational staff also directly conduct performance appraisals and recommend promotions as well as determine who should stay in a company during a restructuring exercise. Small wonder then that their decisions must be influenced by the principles of good Industrial Relations practice. To do otherwise may expose a company to damages amounting to thousands, tens of thousands, hundreds of thousands and even millions of dollars. The same mistake could cost $20,000.00 in a small company with few workers and it could cost $20,000,000.00 in a big company with many workers. Consequently, strategic thinking is also critical when industrial relations are being discussed. Therefore, the continuous training of all levels of any company within the field of industrial relations is fundamental. This is what mentorship caters for.

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In view of the above goals, it would be integral to present, first of all, the statutory provisions of the Retrenchment and Severance Benefits, Act No. 32 of 1985. Then I would examine certain landmark judgments which have embellished these statutory provisions. Finally, I will look at the impact which these principles have made within judgments dealing with the fixed-term contracts of employment because this is an area whereby many companies have been erroneously advised that workers have no rights whatsoever.? Readers will discover that there are many examples when the judgments will speak to both permanent workers and fixed-term contracts workers simultaneously. ???

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The following sections are contained within this article:

1.???? INTRODUCTION

2.???? STATUTORY PROVISIONS: Relevant Excerpts From The Retrenchment And Severance Benefits Act, Act No. 32 of 1985 (hereinafter referred to as “the RSBA”)

3.???? LANDMARK JUDGMENTS Which Capture The Principles From Redundancy And Retrenchment Precedents

4.???? LANDMARK JUDGMENTS Which Applied The Principles Of Retrenchment And Redundancy To Fixed-Term Contracts Of Employment Due To Legitimate Expectation

5.???? A POTENTIAL LANDMARK JUDGMENT Delivered In 2024 Applying The Principles Of Retrenchment And Redundancy Which May Impact The Fixed-Term Contracts In The Future

6.???? CONCLUSION

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2.????????????? STATUTORY PROVISIONS: Relevant Excerpts From The Retrenchment And Severance Benefits Act, Act No. 32 of 1985 (hereinafter referred to as “the RSBA”)

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The definitions below have been extracted from Section 2 of the RSBA and they will be necessary for the remainder of this article. Therefore, please read them meticulously in order for you to be able to grasp the main ideas which emanate from the Court judgments.

“casual worker” means a person who is employed on a temporary or on an irregular or intermittent basis;

“completed year of service” means continuous service over a period of twelve successive months;

“employer” means an employer within the meaning of the Industrial Relations Act;

“involved worker” means a worker earmarked for retrenchment and named by the employer in the formal notice required by section 4;

“Minister” means the Minister to whom responsibility for the administration of labour matters has been assigned;

“redundancy” means the existence of surplus labour in an undertaking for whatever cause;

“retrenchment” means the termination of employment of a worker at the initiative of an employer for the reason of redundancy;

“seasonal worker” means a person who is regularly employed each year, but not throughout the year, to perform work which is limited to a certain time or certain times of the year because of the seasonal nature of the work involved;

“service” means the period of continuous employment of an involved worker with his employer immediately prior to his retrenchment;

“worker” means a worker within the meaning of the Industrial Relations Act.

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Below are excerpts from Section 3 (1) and (2), Section 4 (1) and (2), Section 5, Section 6, Section 14 (1) and (2), and Section 23 (1) and (2) of the RSBA which have also made their impact within the landmark judgments that we will explore within this article. Consequently, it would also be in the interest of assimilation of pronouncements from the judgments if you familiarize yourself with these excerpts from the RSBA.

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“3. (1) ???????? This Act applies to persons falling within the definition of “workers” under the Industrial Relations Act with the exception of—

(a) subject to paragraph (d), workers who have not had more than one completed year of service;

(b) workers serving a known pre-determined probationary or qualifying period of employment;

(c) casual workers;

(d) seasonal workers, unless such workers are employed as part of the regular work force for at least three consecutive seasons with the same employer and for at least one hundred days each season;

(e) workers employed on a specified fixed term basis or workers engaged to perform a specific task over an estimated period of time where these conditions are made known to the worker at the time of engagement, and does not apply to independent contractors.

(2) ????????????? For the purposes of subsection (1), the “estimated period of time” shall be taken to mean a period not exceeding the contract period of a project, including any extensions granted for completion of the project, except that where such workers are transferred from project to project, notwithstanding any short breaks between projects, they shall not be regarded as being excluded from subsection (1).”

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“4. (1) ???????? Where an employer proposes to terminate the services of five or more workers for the reason of redundancy he shall give formal notice of termination in writing to each involved worker, to the recognised majority union and to the Minister.

(2) ????????????? The notice shall state—

(a) the names and classifications of the involved workers;

(b) the length of service and current wage rates of the involved workers; (c) the reasons for the redundancy;

(d) the proposed date of the termination of employment;

(e) the criteria used in the selection of the workers to be retrenched;

(f) any other relevant information.”

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“5. ????????????? Notwithstanding section 4, an employer may, prior to the giving of formal notice in writing of retrenchment, enter into consultation with the recognised majority union with a view to exploring the possibility of averting, reducing or mitigating the effects of the proposed retrenchment.”

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“6. ????????????? Subject to section 7, the minimum period of formal notice required by section 4 shall be forty-five days before the proposed date of retrenchment.”

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“14. (1) ?????? During the period of notice of retrenchment stipulated in section 6, or such shorter period as the employer may have given under section 7, it shall be an offence for the employer to put into effect the whole or any part of his retrenchment proposals.

(2) ????????????? Notwithstanding subsection (1) the employer is not precluded during the period of notice from terminating the services of a worker for valid cause relating to the worker’s conduct or job performance.”

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“23. (1) ?????? A dispute arising out of a retrenchment issue including—

(a) a dispute which alleges unfair dismissal;

(b) a difference of opinion as to the reasonableness or otherwise of any action taken or not taken by an employer or a worker; or

(c) a dispute as to what is reasonably comparable in respect of a terminal benefit scheme, may be reported to the Minister as a trade dispute and shall be dealt with as such under the Industrial Relations Act.

(2) ????????????? A claim against an employer for unpaid severance benefits under this Act is deemed to be a trade dispute.”

3.????????????? LANDMARK JUDGMENTS Which Capture The Principles From Redundancy And Retrenchment Precedents

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RSBA – LANDMARK JUDGMENT #1

In RSBD No. 4 of 1996, delivered on February 24th, 1997, in the Industrial Court between Oilfields Workers’ Trade Union and Schlumberger Trinidad Inc, the Industrial Court held that it was a fraud on the Retrenchment and Severance Benefits Act to give an employee twenty (20) six (6) months fixed-term contract over a ten (10) year period and then deny him severance when he became redundant to the needs of the Company. The following two (2) quotations will be self-explanatory in this regard:

Quotation #1: Page 2

“…The Aggrieved was employed by the Company on or about 7th February 1985 as a casual wireline helper, a position in which he worked continuously until August 1987 when the Company requested him to sign a “temporary worker agreement” for employment in the position of “wireline testing assistant.” That agreement was for a period of six months. On expiry of the agreement the Aggrieved was required by the Company to sign a series of similar six-monthly contracts. Where there was a gap between the expiry of one contract and the commencement of the succeeding one (usually not more than a week or two) the Aggrieved was employed by the Company as a casual worker. There was, therefore, no break in his services with the Company over a period of more than ten years when the last of these “temporary worker agreements” expired on or about 26th April 1995. The Company then employed the Aggrieved as a casual worker until 4th May 1995 when, by letter, it informed him that due to a downturn in its activities it was not possible for the Company to renew his contract. At that time the Aggrieved had been in receipt of a salary of $4,918 per month. The Company did not then pay and has not up to now, paid the Aggrieved any severance benefits. The Union contends that the Aggrieved is entitled to such benefits under the Retrenchment and Severance Benefits Act, 1985 (the Act).”

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Quotation #2: Pages 15 and 16

“…We have come to the conclusion that the same spirit which guided the courts in those cases to which we have referred should guide this Court in interpreting the relevant provisions of the Retrenchment and Severance Benefits Act. We must look beyond the veneer of the contract and expose to full view what in reality is a mere attempt at circumvention of the Act. Can it be said in this case that the contract which the Company asks this Court to uphold was not, by implication, forbidden by the Act – an Act made for the benefit of persons in the position of the Aggrieved? A contract which seeks to take away from him such benefit must lead to infringement of the Act. We so hold.

Section 18 (5) of the Act creates an entitlement for every worker to whom the Act applies who is retrenched on or after 1st January 1985. We hold that a worker, for whose benefit the legislation was enacted, cannot contract out of its provisions and that any attempt to do so by agreement with his employer would be null and void and of no effect. Any such provision in a contract of employment of a worker would be severable from that contract on the ground of repugnancy to the Act and the Court would treat the term as severed from the contract and would give no effect to it. We venture to say that contracts containing terms such as those found in the successive short term contracts which the Aggrieved was required to sign constitute a fraud on the Retrenchment and Severance Benefits Act and are contrary to the policy of the Act and the common good. It is for the protection of workers such as the Aggrieved that the Court must refuse to enforce such a provision in a contract of employment, where to enforce it would result in depriving the worker of benefits which Parliament had conferred on him by statute. In the circumstances we deem the offending provision, in so far as it would have disentitled the Aggrieved to be paid severance benefits to be severed from each of the successive six monthly contracts which the worker was required to sign. We therefore find that the Aggrieved had been a worker in continuous employment with the Company from 17th February 1985 to 4th May 1995 and order that severance benefits be calculated in accordance with section 18 of the Act for the period 17th February 1985 to 4th May 1995 and paid by the Company Schlumberger Trinidad Inc. to the Aggrieved, Mr. Trevor Dewsbury, within 21 days of the date of this judgment.” (Emphasis by me – DPM)

(Severance ordered for the 10 years of service)

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RSBA - LANDMARK JUDGMENT #2

The genuineness of a retrenchment exercise could be faulted if permanent employees are retrenched and shortly after they are rehired on contract to perform the same duties under new and inferior terms and conditions. This is exactly what was discovered by the Industrial Court in TRADE DISPUTE NO. 3 OF 1997, delivered on April 28th 1999, in the Industrial Court between BANK AND GENERAL WORKERS’ UNION and TRINIDAD EXPRESS NEWSPAPER LIMITED at the conclusion of the hearing. The following two (2) quotations will be instructive:

Quotation #1: Page 2

“The Bank and General Workers’ Union (hereinafter called “the Union”) alleged that the Trinidad Newspaper (hereinafter called “the Company”) improperly retrenched Germaine Coggins, Albert Joseph and Anthony Simon (hereinafter called “the First Worker, Second Worker and Third Worker” respectively). The Union further alleged that the Company’s actions in severing the employment relationship with the Second and Third Workers was a transparent attempt to reduce its labour costs and the Workers were terminated in circumstances not consistent with the intent of the Retrenchment and Severance Benefits Act No. 32 of 1985.

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The issue which the Court has to consider is whether or not on the totality of the evidence before it whether the Company’s retrenchment of the Workers was genuine or was it a sham to reduce its labour costs as alleged by the Union.” (Emphasis by me – DPM)

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Quotation #2: Pages 16 to 17

“The Company appeared to have terminated the employment of a senior worker, placed a junior employee who was receiving a lower rate of pay to perform in the dismissed First Worker’s position. In those circumstances the Court finds that there was in fact no surplus of labour at the time of the purported retrenchment of the First Worker. We hold that the First Worker’s termination in the circumstances of this dispute to be unfair.

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The Second and Third Workers were terminated as submitted by the Company because of a surplus of labour in the Process Department. We find that the evidence as adduced by the Company does not support that submission. The Court accepted the evidence of the Second and Third Workers when they both testified that they were recalled by the Company shortly after their dismissal on the ground of redundancy, and they performed the same tasks thereafter as they performed prior to termination of their employment. The Company was unable to persuade the Court that the Second and Third Workers were merely filling in for those permanent (sic) who were sent on compensatory time off.

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We find that the Workers were employed continuously for the period that they remained with the Company, seventeen months and six months respectively. The Company called no witnesses to rebut or challenge the testimony of these two Workers, it sought merely to discredit their testimony during cross-examination of the Workers and the Union’s other witness Clive Thom. The Court finds that the Company at the time of termination of the Workers and certainly for an indefinite time thereafter was in need of the Workers’ services. We therefore hold that at the time of the termination of the Workers (sic) employment there was no surplus of labour which warranted the Company taking the action taken. In the circumstances the Court finds that the Second and Third Workers’ employment was unfairly terminated.”

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RSBA – LANDMARK JUDGMENT #3

In Trade Disputes No. 10 and 12 of 1998, in the Industrial Court between Transport and Industrial Workers’ Union and C.G.A. Limited, delivered on October 16th 2000, the Court enunciated that it was their duty to examine the hiring practice of a company for up to twelve (12) months after a retrenchment in order to explore whether the redundancy was genuine or was a manifestation of victimization. In this regard, the following quotation will be instructive:

(Page 6)

“Now at the end of the day, the resolution of these disputes turns on the answer to two questions; the first is whether the redundancy was genuine; in other words, whether Pierre and Jones were in truth and indeed surplus to the requirements of the Company, and the second question is whether these two workers were selected for retrenchment in accordance with the principle “last in first out, all other things being equal”. This is an established principle of good industrial relations practices, and it is buttressed by an express provision in Article 23 of the applicable collective agreement. An invariably accurate way of determining whether a retrenchment is genuine or not is to ascertain whether the employer has replaced the retrenched worker or workers by human labour within a reasonable period subsequent to the retrenchment. The evidence that would enable a trade union or a Court to make such a determination is usually information peculiarly within the knowledge of the employer, and the Court often finds it necessary to direct the employer concerned to submit such information as the Court may deem necessary. In the instant dispute, the Court required the Company to produce detailed information about its hiring practices for the period immediately following the retrenchment of the workers in May 1997 up to May 1998, and this data was of considerable assistance to us in adjudicating these disputes.” (Emphasis by me – DPM)

($90,000.00 awarded as damages)

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RSBA – LANDMARK JUDGMENT #4

The Court’s pronouncements on the retrenchment being a fallacy was vividly exposed in ESD TD No. 32 of 1999, delivered January 16th 2004, in the Industrial Court between THE SUPERINTENDENTS’ ASSOCIATION OF TRINIDAD AND TOBAGO and BWIA INTERNATIONAL AIRWAYS LIMITED. In this regard, the following quotation will be instructive on why the Court saw this approach to a retrenchment as a manifestation of a CONSTRUCTIVE DISMISSAL:

(Pages 7 to 10)

“The “in-depth analysis” which the Employer claimed led to the redundancy of Mr. Ottley failed despite repeated requests and opportunity for production to manifest beyond a bald assertion that the words “in-depth analysis” used in the redundancy notice “refer to several meetings held by Executive management for the purpose of creating a more cost effective and efficient management structure for the Company as a result of serious economic difficulties being experienced at the time.”

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This bald statement unsupported by any oral or documentary evidence and incapable of serious scrutiny in cross-examination in our view affords no support for the Employer’s assertion that the redundancy was genuine.

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The evidence of the Employer’s own witness Nimmi Persad is that Mr. Ottley’s post was “redundant” but his functions and duties continued in existence up to this day (i.e. while she was giving evidence) and were being performed by other employees.

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Confronted with an issue of the corporate newsletter of the Employer dated 21 March 1998 (about 10 months after Mr. Ottley’s redundancy notice was issued and 8 months after its effective date) which contained references to a post of Head Employee Service she admitted that the post of Head Employee Service came into existence around the time of the newsletter and the incumbent performed virtually the same duties that Mr. Ottley had performed as Manager Employee Services. The Employee Service work unit with the addition of a function called ‘culture transformation and with a ‘Head’ instead of a ‘Manager’ had the same functions as Ottley’s work unit and was still in existence.

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Against this evidence the termination of Mr. Ottley on the ground of redundancy clearly cannot be sustained in equity and good conscience. Less than a year after the “redundancy” everything is back to the way it was – Employee Services is back with a ‘Head’ instead of a ‘Manager’, with one additional function and a slight change of name, the final ‘s’ in Services being deleted. The good faith of the redundancy assertion in Mr. Ottley’s termination letter is more than questionable in the circumstances of this case.

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This Court has repeatedly declared the principle that:

“employers are free and entitled to organize and/or reorganize and/or restructure their business operations as they see fit, this being one of the rights and prerogatives of management that are expressly recognized by law. We would also say that where an employer chooses to reorganize or restructure his business to any appreciable degree it would be extremely difficult for an outsider be it a Union of a Court to successfully challenge the resultant organization. However, where the restructuring or reorganization appears to be quite superficial involving as it does the mere reallocation of storage space for goods and the redeployment of managers, it is in our? opinion incumbent on an employer to furnish to an aggrieved worker (and consequently to this Court) a much more convincing and satisfactory explanation” TD4/91 TIWU v Trinidad Distributors Limited [page 375 of the Court’s 1992 report at 379]. ??

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It is also an established principle that no worker can be said to be redundant if his job functions continue to be substantially performed by another human being [TD 119/93 SWWTU v Port Authority of T & T at page 14].

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On a balance of probabilities, it appears to us that there was in fact no true redundancy but instead what the Association termed a “wrongful” dismissal. In this Court it is of course? more correct to speak of a dismissal or termination of employment that was harsh, oppressive and in breach of good industrial relations practices, in this case clothed with the language of redundancy.

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

That the worker accepted a sum offered as a redundancy payment is not in our view any barrier to his challenging the genuineness of his termination on grounds of claimed redundancy. An employer who terminates his employee on a basis of redundancy which basis is on examination found to be impeachable as the instant case cannot be allowed in equity and good conscience to use an “acceptance” by such employee who is now unemployed and virtually clutching at straws, against that employee.”

($360,000.00 awarded as damages)

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RSBA - LANDMARK JUDGMENT #5

TRADE DISPUTE NO. 242 OF 2004, delivered on February 9th 2006, in the Industrial Court between COMMUNICATION WORKERS’ UNION and TRINIDAD & TOBAGO TRANS-CABLE COMPANY LIMITED demonstrates that the Court will place the burden on the Company to provide evidence about redundancy if it made the claim that based on the “operational requirements of an Employer’s business”, the worker has become surplus to the labour requirements of the Company. The following quotation vividly demonstrates what is expected from a company which makes this claim:

????????? (Pages 14 to 17)

“The Company contended that in the event that the Court were to find that the unilateral alteration of the expiry date was invalid, (as it has found) in the alternative, it would invoke Clause 5, the termination clause, which gave the Company the right to terminate the worker’s employment for “non requirement of services”. I now turn to this issue.

(2)???? Whether the “non requirement of services” contained in the Termination Clause constitutes a valid reason and/or just cause for the termination of the worker’s services.

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I find that the “non requirement of services” was not ‘ipso facto’ proof of the existence of surplus labour and was not a valid reason for termination. The “non requirement of services” of the worker should be based on the “operational requirements of an Employer’s business” where the worker has become surplus to the labour requirements of the Company and has given rise to a redundancy situation. In which case, the Retrenchment and Severance Benefits Act No. 32 of 1985 would apply if the requirements are satisfied. However, where there is no genuine surplus justifying same, the termination of the worker’s services would be deemed contrary to the principles of good industrial relations practice, for lack of just cause.

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A factually similar dispute is T.D. 140/1997 between Bank and General Workers Union and Home Mortgage Bank where the worker’s employment was terminated prematurely and the Company invoked the provisions of the termination clause without giving the worker a reason. The Court found that: ??

(c)????? the Employer was entitled to terminate the contract in accordance with the provisions of clause 11 provided that it also observed the principles of good industrial relations practice.

(d)???? in terminating the contract under clause 11, the Employer did not inform the worker of the reason or reasons why it decided to bring his employment to an end.”

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The Court emphasised that:

“the principles of good industrial relations practice dictate that no worker’s employment may be terminated except for a valid reason connected with the capacity to perform the work for which he was employed or which is founded on the operational requirements of an employer’s business…” The principles of good industrial relations practice, on the other hand, require an employer not only to inform a worker of the reason or reasons for a proposed dismissal but also to give a worker save in exceptional circumstances, a fair opportunity to be heard before proceeding with a decision to dismiss for such reason or reasons”

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I concur with the above reasoning.

Mr. Cezair submitted that the worker was told that the Company was contracting out the work and he referred the Court to the evidence of Debra Thomas and Marsha G. Thomas.

In my considered opinion the Company did not explain to the worker whether “contracting out” the work gave rise to surplus labour and what criteria the Company used, if any, to determine the worker’s suitability for retrenchment. The only evidence the Company alluded to in this regard, was that the worker was told that he was not the only one.

I find that the Company acted contrary to the principles of good industrial relations practice in terminating the worker’s services prematurely, without giving him a valid reason and thus denying him an opportunity to be heard.

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OBSERVATIONS

Based on my observations the undermentioned factors revealed management’s incompetence and cavalier approach in dealing with the situation.

i)?????????????????? The untimely preparation and delivery of the worker’s employment contracts/correspondence.

ii)??????????????? The miscommunication between the Human Resource staff and the Manager and Supervisor.

iii)???????????? The giving of notice to the worker after his services were terminated.

iv)????????????? Lack of knowledge that the worker worked for five days after he was terminated.

v)??????????????? Not being aware from whom the authorization came to permit him to work with an expired ID barge (sic).

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DECISION

In my decision of an appropriate award in this dispute, I am mandated to consider the provisions, under Section 10 (3) of the Act, to act in accordance with equity, good conscience and the substantial merits of the case before it, having regard to the principles and practices of good industrial relations. Had the worker been allowed to fulfil his contractual obligation he would have worked approximately one year, for which he would have been paid. Accordingly, the Court orders the Company to pay to the worker one year’s salary as damages on or before 1st March, 2006.”

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RSBA - LANDMARK JUDGMENT #6

In TRADE DISPUTE NO. 93 OF 2000, delivered on February 18th 2008, in the Industrial Court between OILFIELDS WORKERS TRADE UNION and PCS NITROGEN TRINIDAD LIMITED, the Court adopted the position that only the direct supervisors and managers would be competent to give evidence on who should be selected for a retrenchment exercise when the performance factor had been used to determine the list of persons to be retrenched. Such a selection could not have been done properly by the Human Resources Manager as he was not familiar with the skills possessed by the employees who were being assessed for the retrenchment exercise and he was also not familiar with the assessment mechanisms being used by the affected and retrenched employees. In this regard, the following quotation from that judgment is reproduced below to ascertain this claim:

????????? (Pages 20 to 24)

????????? “(iv) The Company’s evaluation of the workers’ skill, ability and merit

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We have already stated that the Company must prove on the balance of probabilities whether there is a significant difference between the skill, ability and merit of the eleven (11) retrenched workers and those retained. These criteria are relational.

The Concise Oxford Dictionary [1982] defines significant as “having a meaning, noteworthy, of considerable amount or effect or importance.”

The Concise Oxford Dictionary defines skill as “expertness, practiced ability.” In the case of U.E.W. Local 524 and Canadian General Electric, July 29, 1971, Unreported, the majority of the Board stated that: “skill connotes innate or potential ability that has been trained, applied or directed both for theoretical understanding and practical repetition to produce an operating “know-how” or sophistication.” Having key specializations like alloy welding or an operating sophistication of the technologies or a particular plant is classified under the rubric of skill.

Ability refers to whether the employee’s capability of handling the job at hand and may include how he or she gets along with other people. In the absence of a contract provision for the method to be used or the factors to be considered in measuring ability, the Grievance Guide, supra, page 286, lists the methods and factors, including: use of written, oral, performance or aptitude tests, reliance upon a merit rating plan or on the opinion of a supervisor, consideration of production records, disciplinary record or absenteeism, education, experience, physical fitness, age and potential for further advancement.

The Concise Oxford Dictionary defines merit as “excellence, worth.”

Having the technical competence, relevant training and appropriate behaviours were identified by Boochoon as tantamount to having skill, ability and merit.

But Boochoon gave no definite evidence on the tests used by PCS in measuring the skill, ability and merit of workers – those dismissed and those retained. In this regard, it is important to reiterate Boochoon’s earlier testimony that the departmental managers were assigned the responsibility of assessing the functional competencies as well as the behavioural characteristics of the workers. Those workers who demonstrated appropriate behavioural characteristics mentioned earlier had a clear advantage and were retained.

However, the Company tendered no evidence that such behavioural characteristics were entry requirements when the workers were employed. Additionally, there was no intimation from PCS to the workers in the course of their employment that such characteristics conferred an advantage. More importantly, there is no evidence that the workers failed to demonstrate these characteristics.

In the circumstances, we find the Court’s observation in T.D. No. 162 of 1983 between O.W.T.U. and Schlumberger Trinidad Incorporated as pertinent in this dispute. The Court said:

“that no such evidence was produced indicated to the Court that no such evidence existed.”

We so find.

As we see it, the dispute comes to this – all employees were qualified to perform the jobs in question, but their skills and abilities were not equal. The proper “judges” of these attributes were the departmental managers and in their absence, the supervisors – not Boochoon. He was not the direct supervisor or manager of any of the eleven dismissed workers. Boochoon acknowledges this fact. He stated that he was unable to “judge” the competencies of Anand Maharaj, since the test was “hands-on on the job.” We agree with Boochoon’s “judgment” and hold that he was also unable to “judge” the competencies of the remaining workers and/or occupiers of the position listed in pool #3. Indeed the managers were the competent witnesses to give relevant evidence for and on behalf of PCS.

In this regard, it was incumbent on the Company to prove the existence of its pleading in para. 17 of its E&A by having the departmental managers testify in court as to how they defined and measured the skill, ability and merit of their subordinates in the selection process. We asked: What were the tests used in measuring the skill, ability and merit of workers? Were ability, aptitude and attainment tests conducted and over what period, remembering that criteria are dynamic – they will change over time. What weight was given to each criterion? With the exception of training, technical competence and behavioural characteristics, what were the other components of the selected criteria? Suffice it to point out that no supervisor or manager gave evidence.

The Company was also unable to support its pleading with documentary evidence obtained from the employment records of workers. These documents included performance appraisals or other performance measures and usually assesses among other things the worker’s knowledge of the job, ability to learn, the degree of pertinent experience and training and in some instances, even compatible behaviours.

Boochoon confirmed the existence of an “informal performance appraisal system”, which “was not used in all cases.” Clearly it was used in some cases in measuring the performance and competencies of some workers. We therefore reject Boochoon’s clarification in re-examination, that the “informal performance appraisal system” was inconsequential in the selection of workers. We are fortified in our finding based on the following evidence elicited in cross-examination involving Mr. Thompson, the Union’s representative and Boochoon:

“Q.??? Did you have, or you did not have?

A.?????????????? We did not have a formal appraisal system.

Q.?????????????? But in any event what it had was used. Correct?

A.?????????????? By the department.

Q.?????????????? So, you as the HR Manager in PCS Nitrogen were not aware of any performance assessment and commitment? You do not know about that?

A.?????????????? Yes, I am aware of that.

Q.?????????????? But when it is done you wouldn’t see it?

A.?????????????? Not necessarily.”???

Boochoon also said that the departmental managers had all records of their employees “work, training, appraisal and certificate.” (Our emphasis.)

En passant we asked: What really is an informal performance appraisal?

Based on the foregoing facts, we find that the dismissal of the eleven (11) workers by reason of redundancy was arbitrary, capricious and inconsistent with the principles and practices of good industrial relations.

This finding is sufficient to dispose of the dispute regarding the aforementioned eleven (11) workers in the Union’s favour. However for the sake of completeness, we shall address the issues of training and consultation, which also touch and concern the dispute.”

(Sixty percent {60%} of severance ordered as damages to the affected worker)

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RSBA – LANDMARK JUDGMENT #7

In TRADE DISPUTE NO. 49 OF 2010, delivered on July 3rd 2014, in the Industrial Court between OILFIELD WORKERS’ TRADE UNION and IAL ENGINEERING SERVICES LIMITED, the Court identified the ways in which employees were denied their rights when an employer failed to give sufficient notice about a retrenchment and also failed to apply the selection criteria of Last In First Out, All Other Things Being Equal. The following three (3) quotations will be instructive:

Quotation #1: Page 2

“2.???? The Company sells and repairs equipment in the energy sector. At the time his services were terminated the Worker was a Supervisor-Technical Services Upstream. He was in receipt of a monthly salary of twelve thousand seven hundred dollars ($12,700.00), a travelling allowance of four thousand dollars ($4,000.00) and a monthly commission that ranged between two thousand ($2,000.00) to five thousand dollars ($5000.00).

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3.???????????????? By letter dated July 20, 2009, the Company informed the Worker of its difficult and challenging situation and advised him that his services would be “retrenched effective 31 July 2009 on the grounds of redundancy.” He was further informed that he would be paid final salary in the amount of twenty-seven thousand two hundred and seventy dollars ($27,270.00) comprising eighteen (18) days vacation leave and forty-five (45) days in lieu of notice. In addition, he was informed that he would be paid severance payment of one hundred and eleven thousand, nine hundred and sixty-seven dollars and forty cents ($111, 967.40) for his period of employment from July 1st, 1995. His severance benefits were also calculated from that date.”

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Quotation #2: Pages 3 to 4:

“8.???? The Court had before it the statements of Evidence and Arguments of both parties and the evidence of the Worker. There was no contention that the Worker was the most senior Supervisor in his Department. At lease one Supervisor junior to him, Mr. Michael Marcellin was retained while he was retrenched. The Company gives as a reason for letting him go the fact that he was not a certified Technician and in order to have the best chance for survival they had to keep the best talent.

9.?????? The Worker testified that he was certified in training abroad by the Company as well as at his own instance from courses taken at the San Fernando Technical Institute. It was also his evidence that he was first contacted the afternoon before he was retrenched and informed that he had to attend a meeting the next day. He was not told what the meeting was about. Prior to the meeting he was not informed that his job was redundant or was he offered alternative employment and asked whether he was prepared to accept it. He was also not advised of the criteria used in retrenching workers nor given the proposed date of retrenchment before the meeting. No reason was given to him why he was informed of his retrenchment only on that day. ?

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10.???? We have carefully reviewed the statements of Evidence and Arguments of both parties and the evidence of the Worker. We find the Worker to be truthful and forthright. Based on his evidence he was without a permanent job roughly fourteen months. When he secured permanent employment it was as a Valve Technician and was not at supervisory level. His salary is now eight thousand six hundred and sixty-seven dollars ($8,667.00) less half of the total compensation he received with the Company.”

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Quotation #3: Pages 5 to 6:

“12.?? We find that the Worker’s retrenchment was effected contrary to the provisions of the RSBA. The Company did not comply with the provisions of section 4 (1) regarding the procedure for retrenchment. By failing to provide notice in the prescribed form, the Worker was deprived of the opportunity to raise with the Employer issues regarding LIFO (last in first out) as it related to him and other employees, specifically other Supervisors who were not earmarked for retrenchment. ?

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13.???? We find that the Employer’s approach was both unlawful and prejudicial to the Worker because “the principles of good industrial relations practice require that where retrenchment is to be effected in an undertaking it should be done on the basis of “Last-in first-out, all things being equal”. The Company’s error in determining his employment date as much later than it was, therefore, had the effect of depriving him of the advantage of his seniority which is crucial in a retrenchment exercise. The Company did not adduce any evidence to confirm or deny whether the error in his date of employment had an effect on his selection for retrenchment.

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14.???? On the evidence before us, we find that the Worker was retrenched in circumstances that were harsh and oppressive and contrary to the principles of good industrial relations practice. ?

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15.???? We find it fair and just, having regard to the merits of this case that the Worker, Benedict Mc Call, be paid damages of one hundred and ninety-five thousand ($195,000.00) for his dismissal on the basis of retrenchment, which we have held was harsh and oppressive and contrary to the principles of good industrial relations practice. This sum, which is exclusive of the severance benefits already paid to the Worker, is to be paid on or before July 31, 2014.”

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RSBA – LANDMARK JUDGMENT #8

In RSBD NO. 09 of 2016, delivered on November 26th 2020, in the Industrial Court between Oilfields Workers’ Trade Union and British Petroleum of Trinidad and Tobago (BPTT), the Company was reprimanded by the Court for failing to recognize the need for it to recognize that the statutory provisions of the Retrenchment and Severance Benefits Act are compulsory when dealing with the redundancy of any worker. The following two (2) quotations will elucidate salient principles identified by this modern-day landmark judgment:

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Quotation #1: Pages 9 to 11

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“ANALYSIS

The evidence adduced points to fundamental and fatal flaws or shortcomings in the process adopted or implemented on the part of the Employer to effect the termination of the worker on the ground of redundancy.

At the outset, the Court draws attention to:-

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(i)?????????????? The long title of the RSBA which stipulates as far as is material “An Act to prescribe the procedure to be followed in the event of redundancy ….”

This procedure is compulsory unless otherwise stipulated in the Act.

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(ii)???????????? Section 23 of the Act provides as follows:-

“23 (1) “A dispute arising out of a retrenchment issue including –

(a) A dispute which alleges unfair dismissal;

(b) A difference of opinion as to the reasonableness or otherwise of any action taken or not taken by an employer or a worker; or

(c)? A dispute as to what is reasonably comparable in respect of a terminal benefit scheme,

may be reported to the Minister as a trade dispute and shall be dealt with as such under the Industrial Relations Act.”

The importance of this sub-section is that as far as is relevant to the instant dispute, lies in the following words “a dispute shall be dealt with as such under the Industrial Relations Act.”

As a result, the Court is expressly empowered to invoke all its powers and privileges conferred in the Industrial Relations Act, Chapter 88:01 (the Act) in the hearing and determining of this dispute, as and where necessary and relevant.

As far as is material, the procedure for retrenchment at Section 4 (2) of the R.S.B.A. commands:-

“4(2) The notice shall state –

(a) The names and classifications of the involved workers;

(b) The length of service and current wage rates of the involved workers;

(c)? The reasons for the redundancy;

(d) The proposed date of the termination of employment;

(e)? The criteria used in the selection of the workers to be retrenched;

(f)?? Any other relevant information.”?

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In keeping with Section 4 (2) (e) of the RSBA, the Employer informed in the said letter that “the process for selecting employees for separation involved a review of performance scores and an assessment of technical competencies, values and behaviour.”

While an employer has the prerogative to select its workers, the Court will interfere with such selection if the process by which it was done proves to be unfair and not in keeping with the principle of good industrial practice and the relevant pieces of legislation.”

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Quotation #2: Pages 14 to 15

“Another significant and important statement of Mr. Ramsingh’s testimony concerns the retention of lower graded workers in the same position as the worker, in preference to her.

Indeed, by his testimony, Mr. Ramsingh confirmed that lower graded workers in the same position as the worker were retained in employment in preference to her. It is axiomatic that being in a higher grade of the same position means that such a worker can discharge the duties and responsibilities of the lower grade position at the minimum. In keeping with the principle of good industrial relations practices, the appropriate step would have been to offer the worker employment in the lower grade while red-circling her terms and conditions of service if need be, especially in cases where the worker had more service than the workers in the lower graded position and enjoyed seniority over them, both in terms of years of service as well as by being in a higher grade of the position.

To quote Mr. Ramsingh, he stated that “during the process that wasn’t factored”; in other words, the seniority of the workers over those who were in lower positions was not considered. A worker progresses in an organization with the approval of the Employer on the basis of merit, in keeping with the principle of good industrial relations practice. In recognition of such progression, the worker is entitled to be preferred, and retained in employment before those workers who have not so progressed. Since according to Mr. Ramsingh, that was not “factored” is to act contrary to the principle of good industrial relations practice.

The Court concludes that by its action, the Employer had breached the principles of good industrial relations practice, the R.S.B.A. and the Act.” (Emphasis by me - DPM)

($1,500,000.00 was awarded as damages)

4.????????????? LANDMARK JUDGMENTS Which Applied The Principles Of Retrenchment And Redundancy To Fixed-Term Contracts Of Employment Due To Legitimate Expectation

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LEGITIMATE EXPECTATION IN LANDMARK JUDGMENT # 1

TRADE DISPUTE NO. 21 OF 2015, delivered on 17th August, 2015, in the Industrial Court between BANKING, INSURANCE AND GENERAL WORKERS UNION and TOBAGO HOUSE OF ASSEMBLY

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Quotation #1: Pages 1 to 2?

“1. ??? This Trade Dispute which was referred to the Industrial Court by the Minister of Labour and Small and Micro Enterprises Development and concerns the termination of the services of Carl Hector (hereinafter referred to as “the worker”) by way of letter dated 29th September, 2010.

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2. ????? The parties to this Trade Dispute are the Banking, Insurance and General Workers Union (hereinafter called “the Union”) and Tobago House of Assembly (hereinafter called “the Assembly”).

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3. ????? The worker was employed as an Environmental Investigator in the Division of Agriculture, Marine Affairs and the Environment, Tobago House of Assembly from September 19, 1999 until he was informed by letter which he received on October 4, 2010 that “this Division is unable to offer you a new contract with effect from October 2nd 2010” while expressing “sincere thanks” for his contribution “to the Division’s efforts in serving the people of Tobago.” The inability to offer the worker a new contract was not because of a diminution of work resulting in there being no need for the position because the undisputed evidence before this court is that this is a position which continues to exist at the Assembly.

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4. ????? During those eleven years and several days, he worked as any normal worker who is in indefinite employment. There was provision for 14 working days’ sick leave per year, five working days’ personal leave and 25 working days’ vacation leave. He was paid a monthly salary with statutory deductions made like a regular employee. Normal working days, like that of the indefinite worker, was Monday to Friday. There was no fixed task specified, just the “the duties of Environmental Investigator” and, consistent with a regular employment engagement, “any other duties that may be assigned to him by the Administrator or any other duly authorised officers of The Assembly at any office or place of business of The Assembly.” ” (Emphasis by me – DPM)

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Quotation #2: Pages 4 to 5

“8. ??? The Assembly in this case before us seeks to deprive the worker of this protection given and the wide jurisdiction of this Court conferred by the legislature by the simple but colourable device of labelling the employment relationship with the worker a “fixed term contract”.

9. ????? To this end, the Assembly did not file any Witness Statements neither did it present any witnesses to give evidence in Court. The Assembly’s case is that the Worker was employed as an Environmental Investigator on a one year fixed-term formal written contract which commenced on the 2nd October 2009. To this end it mattered not to the Assembly that the contractual employment relationship in fact lasted eleven years, and urged us to completely ignore the fact that this was a series of successive contracts amounting to eleven years.

10. ??? The Assembly contends that it is only the worker’s last year of employment commencing on 2nd October 2009 that is relevant. It explained that the relationship came to an end with the effluxion of time stated in the formal written contract and not with the letter dated September 29, 2010 which was received by the Worker on October 4. There was therefore no “termination of the worker’s employment” by the Assembly “given that the Worker’s employment came to an end due to the effluxion of time.” The Assembly further contends that its letter dated 29th September 2010 and received by the worker on 4th October 2010 which notified the worker that the eleven years of employment relationship was at an end was not a termination letter. It does not say what is the significance of this letter, which seems implicitly to thank the Worker for his services to the people of Tobago in relation to the previous eleven years of service.

11. ??? Fixed term employment contracts have often come before this Court as disputes and this case provides us with a further opportunity to clarify the principles which guide this Court in relation to the resolution of these disputes.” (Emphasis by me – DPM)

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Quotation #3: Pages 13 to 17

“29. ? In this case before us, the worker was employed under three successive three-year contracts and then under two one year contracts. We do not have before us any of the three-year contracts, but the Union did exhibit the final two contracts, namely the one-year contracts. An examination of these two contracts and the irresistible inferences flowing therefrom is sufficient to dispose of the argument that this was a genuine fixed-term contract. In the first place, a fixed-term contract must have a definite beginning date and a definite ending date which must not only be known at the outset but effectively govern the actions of the parties.

30. ??? An examination of the 2008-2009 one-year contract indicates that it was not executed until February 12, 2010, although it was stated to begin on October 1, 2008 and end on October 2, 2009. Thus, the contract was a mere formality and had no effect and bore no relationship to defining the relationship between the parties, having been made retroactively. The Assembly presented no evidence to explain this discrepancy and therefore it must be taken at face value. There is no basis for any judicial notice to be taken of any custom or practice not urged and proved before the Court. What was clear, from the testimony of the worker is that he continued to work without interruption and continued to be paid in an indefinite contract, even without there being a signed contract in place.

31. ??? In any event, even if there is an explanation offered, presenting a contract several months after the employment is in progress with the stipulation that it retroactively govern what has already been done, is grossly contrary to good industrial relations principles and practice and this Court cannot give much weight to this document in terms of its evidential value in classifying the relationship. The written contract is the only evidence of a fixed-term contract relied on by the Assembly and it seems, based on our finding, that it was irrelevant to the reality of the relationship between the parties.

32. ??? We arrive at a similar conclusion with regard to the last written contract on which the Assembly expressly relies. In that case, although stated to commence October 1, 2009, the written contract was not signed until May 7, 2010, some eight months after the commencement date. It was therefore irrelevant to the reality of the relationship between the parties as the worker continued working as before. This being the case, there is nothing before us to refute the inference that this was in fact an indefinite contract of employment of a permanent nature until terminated by either party.

33. ??? Another important consideration in coming to this conclusion is that there is no reason demonstrated for the Assembly entering a fixed-term contract as distinct from the normal indefinite contract. This was a continuing post not a series of specific projects or jobs. No purpose was served and none urged before us that there was a good reason and a genuine need to employ this worker on a fixed term contract.

34. ??? It is also important to note, in assessing the genuineness of the fixed term contract, that the process of formal renewal of the written contract was initiated by the worker indicating to the Assembly in writing before the end of the particular stated term that he wished to continue. This was also a formality insisted on by the Assembly with which the worker unwittingly complied. It is instructive however that since the signing of the formal contract did not coincide with the continuation of the worker’s employment, like the retroactive formal written contract, the inference is that the requirement of an indication by the worker that he wished to continue was a mere formality and indeed a sham to disguise the reality of the relationship. Put another way, like the written contract there is no proof that it bore a fundamental and functional prerequisite to his continued employment. The likelihood is that if the worker did not so indicate and showed up and performed his job as usual, nothing would have changed.

35. ??? The worker was subject to performance review before the end of each term and the record is that he received very favourable performance appraisal reports before the end of each term of his contract, including the last. The Union argues that these performance appraisal reports “informed the decision” to continue the worker’s employment. In other words, this creates a legitimate expectation on the part of the worker that nothing would be done to jeopardise his job given a favourable evaluation, and, indeed, this was the course of conduct between the parties upon which the worker was legitimately entitled to rely.

36. ??? The Union’s case is that, in keeping with the established procedure and practice, the worker wrote to the Assembly expressing his desire to continue in the employment of the Assembly in the form of a Request for Renewal of Contract letter dated June 30, 2010.

37. ??? In spite of this three-month notice, it was not until literally the last day of the term of the alleged contract that the Assembly wrote a letter to the worker, dated September 29, 2010, acknowledging his letter of June 30, 2010, and informing the worker that after eleven years and perfect performance appraisals, “this Division is unable to offer you a new contract with effect from October 2nd, 2010.” There was no meeting, no discussion, no consultation, and no explanation.

38. ??? In cross examination, the worker testified that he received the letter on October 4, 2010, which is the following Monday and after the date of the expiration of the last formal written contract. The notice was therefore given after the expiration date, and in the scheme of things, during a new succeed contract. The habitual practice between the parties over several successive so-called terms was that the worker continued working and notification of a new contract would only come several months later. Without any evidence from the Assembly that communication was made other than by means of the written contract, the irresistible inference is, as was said before, that the written contract was a mere formality and unimportant to the continuation of the employment and to which the employer itself paid little heed.

39. ??? If as a matter of practice between the parties the worker continued his employment as he did previously, uninterrupted and independent of a formal written contract, it meant that the effect of the letter he received on October 4, 2010 was a retroactive termination after a new contract had de facto begun, effectively without any notice and without any reason being given for the termination.

40. ??? The evidence before this Court is that the job of Environmental Investigator continues to exist in the organization. This was the uncontroverted testimony of the worker. The purpose for which the employment relationship was created continued and there is no basis upon which it could be said that by signing a written fixed term contract, continued employment could not be reasonably be expected, in light of the history of the relationship between the parties.

41. ??? We find as a fact, based on all of the above, that the worker had a legitimate expectation, reasonably grounded in the history of the parties’ conduct and relationship, of continued employment and that the letter of non-renewal amounted to a dismissal and that this dismissal or non-renewal was harsh, oppressive or not in conformity with the principles and practices of good industrial relations, no reason having been given therefor.” (Emphasis by me – DPM)

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Quotation #3: Pages 18 to 19

????????? “CONCLUSION

46. ??? Finding of Fact

On the totality of all of the evidence we find as fact:

1) That the worker was not employed under one year fixed term contract.

2) The worker was continuously employed by the Assembly for some eleven (11) years on an indefinite contract.

3) The Assembly has provided no evidence to justify the removal of the worker from its employ.

4) The job of Environmental Investigator, which the worker performed continues to exist at the Assembly.

5) That the worker was removed from the employ of the Assembly in circumstances which were harsh, oppressive and contrary to the principles and practice of good industrial relations. The Assembly is hereby ordered to pay to the worker, Mr. Carl Hector, the sum of three hundred and twenty five thousand dollars ($325,000.00) as damages. The said sum is to be paid on or before the 21st September, 2015.

We so rule.” (Emphasis by me – DPM)

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LEGITIMATE EXPECTATION IN LANDMARK JUDGMENT # 2

GSD-TD 367 OF 2013, delivered on March 22nd 2017, in the Industrial Court between COMMUNICATION WORKERS’ UNION and NATIONAL TRAINING AGENCY is another landmark judgment which demonstrates the failure by the employer to recognize that renewal of a fixed-term contract of employment must apply the principles governing retrenchment and redundancy. The following quotations will be instructive:

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Quotation #1: Pages 2 to 4

“This trade dispute concerns the termination of the services of Mr. Alfred Green (the worker) effective 25th October, 2012 by the National Training Agency (the Employer).

The Communication Workers’ Union (the Union) applied to the Industrial Court for the determination of this trade dispute.

To support its application, the Union contended that :-

“a. The Employer terminated the services of the worker without cause or taking into account his ten (10) years of dedicated service.

b. The Employer did not raise any concern with the worker which would have indicated that there was an issue as to his performance of his job. It was clear that an expectation for continued employment and discussion in meeting held on September 12, 2011 for the period November 1, 2011 to October 7, 2012 was based on a good performance appraisal which the worker received on October 23, 2012 and it was a formality based on policy.

c. This was a termination without cause not a situation of end of contract as the worker worked past his contract period.

2. In the circumstances, the worker’s termination was effected contrary to the rules of natural justice and good industrial relations practices and in any event was harsh and unjust.”

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In turn, the Employer argued that –

“a. That contract was never intended to be long-term as the NTA had a duty to assess and evaluate its new responsibility to determine its manpower needs.

b. Following the expiration of his contract of service he was retained to 25 October 2012, without written contract.

c. A dispute therefore that the worker’s services were terminated with effect from 25 October, 2012 is ill-founded and should be dismissed as the worker’s contract of service was terminated by effluxion of time.

d. In the alternative, the job of Programme Coordinator, which was established by the NTA as an interim position to facilitate the transfer of the OJT from the MSTTE to the NTA, was disestablished and the new position of Senior Coordinator, Operations and Placement was established in its place and advertised nationally. The job of Senior Coordinator, Operations and Placement is therefore not the same job as Programme Coordinator, which was held by the worker.

e. That the worker is not entitled to severance pay as his appointment was for a fixed term.

f. That the worker’s employment in the previous job on a fixed term contract did not confer on him any right to be considered exclusively to fill the vacancy.

g. That the NTA has a duty to its stakeholders to give consideration to all qualified nationals and to select that person who in its mature judgement is best qualified to fill the position.

h. That the NTA honoured all of its obligations to the worker in the period of his employment.” ”

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Quotation #2: Pages 16 to 20

“After much vacillations, Mr. Bissessar admitted there was a contract of employment after 7th October, 2012.

The question arises as to the criteria used in employing him on that new contract. Mr. Bissessar deposed that –

“Upon the expiration of the worker’s contract of service on 7th October, 2012 he was requested to defer his departure pending finalization of the Agency’s plans for the department.”

We noted that –

(i)?????????????? The Employer did not inform the worker of any such deferral

(ii)???????????? The worker was on vacation leave from before the end of the first contract until 19th October, 2012, resumed work on 22nd October, 2012 and then he was terminated on 25th October, 2012, three days later.

(iii)????????? The worker would have only actually worked for three days.

That deposition is not support by the facts and we are unable to accept that deposition.

It is undeniable that the worker was retained on the basis on his performance in accordance with the provision of his contract. Prior to resuming work, he had sent an e-mail to Ms Murray, the Industrial Relations Officer of the Employer saying that his leave had ended. She told him that he should come back to work on Monday 22nd October, 2012, circulated via e-mail that he was again in office after his vacation leave, and said that he had nothing to worry about in terms of his continuation in employment. As indicated, he resumed work on 22nd October, 2012 and on the day following day the C.E.O. completed his performance appraisal, commending him on his performance and assured him that there would be continuity in his employment. During the hearing there appeared to be a problem with the nomenclature of the particular position with it sometimes being identified as Regional Co-ordinator and other times as Programme Co-ordinator. The Employer, however clarified that they were interchangeable and were one and the same. Juxtaposing the provisions of the contract with the very good appraisal of the worker and his acting in the senior position of Regional Manager, this was an appropriate case for the application of the principle of Industrial Relations practice that an Employer should look within its Organization before seeking workers from the outside. On that basis, the worker qualified for the position. The Employer submitted in part that the worker was bypassed because he “was 69 years of age at the time. The Agency it went on, will only employ persons at that age if he/she had qualifications which were not available on the open job market. This was not the case.” We observed that –

(i)?????????????? The contract between the Employer and the worker did not contain provisions on age restrictions.

(ii)???????????? The Employer did not inform the worker that it would only employ persons at that age if he had qualification which were not available on the open market.

(iii)????????? The Employer did not inform the worker of any review of the structure of its organization.

Industrial Relations is living and dynamic and modern principles of good Industrial Relations practice abhor age discrimination which the Employer appears to be practicing. In the absence of relevant provisions in a contract or the worker being so informed, the Court will not and cannot entertain the Employer’s submissions and the Court is unable to condone such actions on the Employer’s part.

We find that –

(i)?????????????? The worker was employed after 7th October, 2012 that is after the end of the first contract, The Employer submitted that the worker was requested to defer his departure pending finalization of the Employer’s plans for the Department. However, we noted that –

(a) There is no written communication of the Employer outlining that position, and

(b) There is no written communication of the Employer on the worker’s continued employment

Such absence or lack of communication creates confusion and uncertainty and entirely weakens the Employer’s case.

(ii)???????????? He had earned twenty-three (23) working days vacation leave

(iii)????????? He attended, on the invitation of the Employer, two workshops on 12th October, 2012 and 18th October, 2012 while on vacation leave.

(iv)?????????? He reported for work on 22nd October, 2012, and worked and was paid up to 25th October, 2012.

(v)???????????? He attended a meeting on 25th October, 2012, at which Mr. Bissessar informed him that there was an instruction to send him home and he was given a letter confirming that his contract was being terminated that day.

(vi)?????????? The Employer invited the worker to apply for his own job, Regional Co-ordinator and the worker complied.

In light of the worker’s position, his performance appraisal, his intermittent acting as Regional Manager and the relevant provision of the contract of employment, these represent further evidence to apply the principle of good Industrial Relations practice that for purposes of employment, it is required to consider the employed worker before extending one’s consideration to others. The Employer infringed that principle.

At this stage we wish to highlight that the dispute concerns the termination of the services of the worker effective 25th October, 2012 (emphasis ours) and consequently, that is all the Court has jurisdiction to hear and determine so that any action taken by the Employer thereafter will have no bearing or impact on the determination of the dispute in this case. Depending on the nature of such action, it may go to mitigation but the review and creation of a new position in this case has no effect whatsoever on this dispute. In any case, the matter which the Court has to determine is the termination of the services of the worker and if determined in the worker’s favor, then such action will be considered in assessing damages as petitioned by the Union.

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In light of these provisions in the contract on continued employment, the Employer should have, at least, continued the worker’s employment after 7th October, 2012 under a new contract for the same period as the last contract, that is, three years; but for the Employer’s action of terminating the worker, he would have been employed thereafter. That meant that he would have continued in employment while the Employer undertook its purported review of its structure and no doubt, the Employer would have held discussions with the worker on its new structure in keeping with the principle of good Industrial Relations practice but, again for the Employer’s termination of the worker.

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By its action, the Employer denied the worker such an opportunity for discussions and hence an opportunity to be employed in that new position without any stoppage of his employment as happened in the instant matter.

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When that action or inaction of the Employer is considered, its reference to the review and consequential creation of a new position cannot be accepted as a reason to support the worker’s termination since it was the Employer’s action in the first instance which lead to the worker’s termination and his denial of continued employment.

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In the circumstances, and acting under Section 10 (3) of the Act we are of the opinion that the action of the Employer to terminate the worker was harsh and oppressive and also done in circumstances that were contrary to the principle of good industrial relations practice.”

($390,000.00 as damages ordered)

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LEGITIMATE EXPECTATION IN LANDMARK JUDGMENT # 3

TRADE GSD-MPD NO. 003 OF 2012, delivered on 12th June 2020, in the Industrial Court between OILFIELDS WORKERS’ TRADE UNION and MINISTRY OF EDUCATION and THE CHIEF PERSONNEL OFFICER demonstrates that the service that a worker achieves due to principles established under retrenchment and redundancy judgments will qualify the worker to receive full maternity protection and benefits once the statutory qualifications have been achieved by the worker who was being denied same by a fixed term contract of employment. The following quotations from this judgment will be instructive:-

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(Pages 6 to 8) –

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“ANALYSIS

19. ??? In order for the Court to determine the true legal nature of the employment relationship which existed between the parties, we need to examine the legal framework and the protection which the law provides for pregnant women. The Court also needs to ascertain what is the true legal import of the “fixed term” contract which has been cited by the CPO.?

20. ??? Contracts of employment for fixed terms have become common place in the workplace in this country, and, more and more, the Industrial Court is called upon to make pronouncements on the legal import of these contracts in the industrial relations context. The Court therefore takes judicial notice that, in Trinidad and Tobago, a number of persons are employed in the public and private sector under what are often labelled as “fixed term” contracts.?

21. ??? In the general sense, there are particularities of a fixed term contract, such as, it is for a particular purpose which is discharged by performance, and also, that both parties end the arrangement at the end of the stated contract. When the Court examines a contract, including those which has been labelled as “fixed term”, what is of paramount consideration, is the true legal nature of the employment relationship which exists between the parties and not the label which the parties may use to describe their relationship. It is therefore important for us to lift the veil or to remove the label which has been ascribed to this employment contract to determine the true nature of the relationship between the CPO and the Worker.???

22. ??? In Industrial Relations, when a Worker is employed on a bona fide fixed term contract this type of employment is usually considered as “temporary” or “casual work”. Employment of this type may happen for various reasons; there might be uncertainty about the duration of the job, or there might be a need for the short engagement for that position at that moment, among other things.?

23. ??? When we examine the evidence of the employment relationship between the parties in this Trade Dispute, we note that the Worker was initially employed on 14 September, 2004 on a three-year contract and she continued to be employed on several successive contracts for varying periods with the Ministry. Throughout her employment with the Ministry, she performed the same functions and the same duties as she did in 2004. Some thirteen (13) years later, when this dispute was listed for hearing by the Court, the Worker was still employed at the Ministry where she was still performing the same duties and functions and the job continued to exist. The only difference, which is superficial, is that the job title has changed, the job is no longer referred to as School Clerical Officer as it was in 2010, instead it is now titled Business Operations Assistant (BOA). The parties agree that the job description, duties and functions of Business Operations Assistant are identical to that of School Clerical Officer, and that what has occurred was merely a name change.?

24. ??? This employment relationship has been labelled as a “fixed term” contract by the CPO and the Ministry, even though the evidence is that the relationship, between the Worker, the CPO and the Ministry is for an indeterminate period. Is this a fixed term contract?”

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(Pages 12 to 15) –

“37.?? … The CPO and the Ministry must operate within the confines of the law, they do not have the power to circumvent the provisions of the Act by a contract or any other legal arrangements.

38.???? We must point out, that the interpretation and the implementation of the provisions of the Act, as have been done in this case by the CPO, lead to absurdities and defy industrial relations commonsense. Industrial relations commonsense is the approach we use to resolve disputes at the Industrial Court. Industrial Relations commonsense demands that a worker who has a six (6) year employment history and who is pregnant, during the course of her employment, receives all the respective benefits from the Employer and the National Insurance Board. These are benefits to which she is entitled; her rights and her entitlement to those benefits cannot be disaggregated by the whim and fancy of an employer who chooses to label the employment relationship as “fixed term”.??? ?????????

39. ??? We wish to state that it is very disturbing to this Court, that the CPO has labelled the employment relationship between the parties as “fixed-term” and has limited that relationship to only one contract for the purpose of determining the Worker’s maternity leave entitlement.

40. ??? We remind parties that: “The National Industrial relations Court is a court, but a court with a difference. All courts are concerned with people. So is this Court … Why, then, is this court different? It is different in its composition, in its objects and in its procedures. It is a court of law, but it is not a court of lawyers …. The Industrial Court is more than a court of law, it is a court of industrial common sense. The Court’s procedure is different. It is designed to be quick, informal and suited to the needs of those who are not lawyers.’ This is indeed the case with the Industrial Court of Trinidad and Tobago, …”

41. ??? The duty and responsibility of the Industrial Court of Trinidad and Tobago, as provided by Section 10 (3) (b) of the IRA, is to make decisions in accordance with “equity, good conscience and the substantial merits of the case before it having regard to the principles and practices of good industrial relations.”

42. ??? Equity in the workplace is not a theoretical construct. It means something. It means, in essence, that each Worker has the right to receive fair treatment and to have equal access to opportunities and benefits in the workplace. Equity and good conscience, in accordance to the IRA, demand that this Worker receives the same treatment as pregnant women who are permanently employed at the Ministry and indeed across the public sector in Trinidad and Tobago.

43. ??? We find that it is contrary the principles of equity and good conscience to disaggregate the maternity leave due to the Worker, and to pay her a portion of that leave, especially at a period when she is vulnerable. We condemn this decision of the CPO in the strongest terms and reiterate that “… the reasoning applied to the interpretation of social legislation; that is, that such legislation is to be seen as an instrument of social engineering and that the Court must not lose sight of its function to ensure that the intended beneficiaries of such social engineering are not deprived of their rights by reason of their relatively bargaining strength. …We must look beyond the veneer of the contract and expose to full view what in reality is a mere attempt at circumvention of the Act. …????? A contract which seeks to take away from him such benefit must lead to infringement of the Act.”?

44. ??? The true purpose and intent of the Act have been vitiated by the policy approach which has been articulated by the CPO; a policy which is contrary, not only to the spirit of the Act, but also to the spirit of equity, good conscience and to the principles and practices of good industrial relations. These principles, which are contained in the IRA, are the bulwark against unfairness and injustice and they are among the fundamental canons of the of the practice of good industrial relations in this country.

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FINDING OF FACT

45. ??? On the totality of the evidence and the facts, we find as fact:????????

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a.????????????????? That in 2010 the Worker was employed in the same job with the Ministry for six (6) years and that she performed the same functions at work for the entire period.

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b.???????????????? ?The CPO has labelled the Worker’s employment history in 2010 as a “fixed term” contract for three years.

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c.????????????????? the labelling of this contract as “fixed term” by the CPO is a disguise to hide the true employment relationship which existed between parties and to deprive the Worker of her rights and entitlement to receive all of her maternity benefits and the protection of the law.

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d.???????????????? we find that the worker has been employed continuously on successive contracts for an indeterminate period with the Ministry, and, that the employment relationship is not “fixed term” as labelled by the CPO and the Ministry.

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e.????????????????? we find that the Worker is entitled to the same maternity rights and benefits as a permanent worker in the same circumstance.

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RULING

46. ??? On the totality of the evidence, it is the ruling of this Court, that the worker is entitled to the full protection of the law. We rule that in 2010 she was entitled to receive thirteen (13) weeks maternity leave benefits. The worker was deprived by the CPO of her rights to receive all of her maternity leave benefits when she was only given leave for the period 13th August, 2010 to 16th September, 2010.

47.? ?? We also rule that the decision by the CPO to deprive the Worker of her rights to receive all of her maternity leave benefits is harsh, oppressive and contrary to the principles and practices of good industrial relations.

48.? ?? Further, it is the ruling of this Court that the CPO’s decision to disguise the true nature of the legal employment relationship between the parties and thereby deprive the Worker of her legal rights and benefits, is not in accord with the principles of equity and good conscience. The Court deems this decision of the CPO to be unjust, unfair and egregious and that it warrants an order for the payment of damages.”

(Full Maternity Benefits were ordered)

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LEGITIMATE EXPECTATION IN LANDMARK JUDGMENT # 4

Likewise, in TRADE DISPUTES ESD-TD 003 OF 2015 (S), delivered on 29th January 2021, in the Industrial Court between Public Services Association of Trinidad and Tobago and South West Regional Health Authority, the Court submitted that where an employee had been performing the same duties over many years that good industrial relations would recognize that employee as a permanent employee even though the employer would state otherwise, as can be discerned from the following quotation –

(Page 13) –

“36. ? Party No. 2 made an issue over the fact that the position of Laboratory Quality manager was never one on its establishment of permanent positions and therefore the question of the Worker being considered a permanent employee as claimed by Party No. 1 does not arise. We disagree with the above for the following reasons:

(1)?????????????? The mere fact that a position is not classified as a permanent one, but the job function is being performed continuously by persons over a prolonged period (in this instant case a minimum of 12 years) could only mean the position is a permanent one, regardless of how the Authority may choose to call it for whatever reason. The Worker was functioning in that position for six years and therefore must be deemed to be a permanent employee in spite of any other nomenclature attached to the holders of the position, such as temporary, casual, contract, et cetera.

(2)?????????????? Party No. 2 reminded the Court that in TD 21 of 2015, the worker had 11 years’ service with five consecutive fixed term contracts while in the instant case the Worker had six years’ service and two consecutive fixed term contracts. In our view, that six-year period is sufficient, once the person is being employed to perform a job function which is permanent as indeed this one is. In fact, the Worker was employed for a total of seven and one-half years.”

($200K awarded as damages)

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LEGITIMATE EXPECTATION IN LANDMARK JUDGMENT # 5

As recent as December 12th 2023, within Essential Services Division – Trade Dispute No. 049 of 2021, in the Industrial Court between Government Industrial and General Workers Union and North West Regional Health Authority, the Industrial Court affirmed its conclusive position that an employee may have reasonable expectation to have his or her fixed-term contract of service renewed if certain conditions are prevailing at the time for the renewal. The following quotation from Essential Services Division – Trade Dispute No. 049 of 2021 will elucidate the position of the Industrial Court in this type of matter:

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“…24. ??????? Did the Worker in this matter have a reasonable belief comparable to a legitimate expectation that her contract would be renewed? Did the successive renewal of her contract over the 10 years in which she was employed create such an expectation?

25. ????????????? In TD 21 of 2015 between PSA and THA, the Court was called upon to address a similar matter where a worker was employed on successive fixed term contracts for 11 years until he was informed that the Employer was unable to offer him a new contract. The Employer’s inability to offer the worker a new contract was not due to a reduction of work resulting in there being no need for the position.

26. ????????????? In their judgment, Court stated:

“The Union’s case is that, in keeping with the established procedure and practice, the worker wrote to the Assembly expressing his desire to continue in the employment of the Assembly in the form of a Request for Renewal of Contract letter dated June 30, 2010. In spite of this three-month notice, it was not until literally the last day of the term of the alleged contract that the Assembly wrote a letter to the worker, dated September 29, 2010, acknowledging his letter of June 30, 2010, and informing the worker that after 11 years and perfect performance appraisals, “this division is unable to offer you a new contract with effect from October 2nd 2010.” There was no meeting, no discussion, no consultation, and no explanation.”

27. ????????????? The Court went on to state at page 17 of the Judgment:

“We find as a fact, based on all of the above, that the worker had a legitimate expectation, reasonably grounded in the history of the parties’ conduct and relationship and that this dismissal or non-renewal was harsh, oppressive or not in conformity with the principles of good industrial relations, no reason having been given therefor.”

28. ????????????? The facts in this Trade Dispute are clearly similar to the facts in TD 21 of 2015, and our conclusions are similar. The history of the Parties’ conduct and relationship of continued employment gave the worker a reasonable belief, comparable to a legitimate expectation, that her contract would be renewed.

29. ????????????? Therefore, the Employer’s failure to employ or renew the worker’s contract, amounted to a dismissal. Moreover, the dismissal of the worker was effected without any reasons being given to the Worker by the Employer for its decision.”?????????

($351,348.00 in damages ordered)

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LEGITIMATE EXPECTATION IN LANDMARK JUDGMENT # 6

Similarly, 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.

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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)

5.????????????? A POTENTIAL LANDMARK JUDGMENT Delivered In 2024 Applying The Principles Of Retrenchment And Redundancy Which May Impact Future Rulings On Fixed-Term Contracts In The Future

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Where an employer failed to consult an affected Worker in a redundancy / retrenchment matter it would be a violation of the Retrenchment and Severance Benefits Act. In TRADE DISPUTE NO. GSD-RSBD 34 OF 2021, delivered on March 7th 2024, in the Industrial Court between NATIONAL WORKERS UNION and INTERNATIONAL SHIPPING LIMITED, the Court held that the failure to apply the mechanism of consultation nullifies the retrenchment by itself as will be exemplified by the following excerpts from that judgment:

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(Pages 8 to 9)

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“In assessing the substantive justification of redundancy dismissals, two key elements must be met for an employer to justify an employee’s [retrenchment]: These are:

Substantive justification – The main question is whether there was redundancy. Was the employee genuinely surplus or redundant, which justified retrenchment within the meaning of the test in the RSBA? Accordingly, what is the true reason for the dismissal and whether it is made bona fide? For instance, is the dismissal carried out for collateral purpose, such as to exit employees with performance issues or victimize employees for their legitimate participation in trade union duties and activities? Again, these are questions of fact and degree, depending on the case’s circumstances.?

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ii. Procedural fairness – a fair process must have been followed in implementing the redundancy and incorporates implied obligations of good faith. Fairness includes:-

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a.????? Genuine consultation;

b.???? Consideration of alternatives; and

c.????? Fair selection process.

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21. The principles of good industrial relations practice do not sacrifice procedural fairness for substantive justification – some question whether it makes sense to emphasize procedural fairness. The answer is yes. Without fair procedure, there is no guarantee that substantive justice will be achieved. As such, procedural fairness is seen as a necessary condition for substantive justice. As we see it, justice is achieved as long as the retrenchment (selection) process is fair, transparent, and consistent with the principles of good industrial relations practice. Accordingly, the court requires the employer to show how, by whom, and on what basis the selection for redundancy was made. Put simply, the court will not permit an assault on fairness … ” (Emphasis by me - DPM)

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(Pages 15 to 16)

“37. This Honourable Court has held that “Section 5 of the RSBA prescribes the fundamental principle of good industrial relations practice concerning meeting, treating, and consulting. In this case, although there is no recognized majority union, the RSBA bound the Company to consult with individual employees, thereby imposing the rules of natural justice and right to be heard to all terminations, retrenchment or otherwise.

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1.???? Lord Justice Glidewell dicta on consultation outlays for employers their responsibility in retrenchment exercise about “Fair consultation” and outlined as follows –

a.????? Consultation where the proposals are still at a formative stage;

b.???? Adequate information on which to respond;

c.????? Adequate time in which to respond;

d.???? Conscientious consideration by an authority of the response to consultation (sic)

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38. Another way of putting the point more succinctly is that fair consultation involves giving the body constituted a fair and proper opportunity to understand the matters about which it is being consulted fully and to express its views on those subjects, with the consultor then considering those views properly and genuinely.

39. Further, the Court has identified three (3) peremptory components of fairness which routinely arise in redundancy dismissals, namely, selection, consideration of alternative employment and consultation. The consultation process is at the core of procedural fairness in the case of dismissal for operational requirements. Therefore, consultation must take place when the employer contemplates dismissal. The word ‘contemplates’ indicates that the employer must consult at the stage when a final decision to dismiss has not yet been reached when the possibility of dismissal has only been foreseen. Though the Company’s Witness asserted familiarity with the provisions of the RSBA, her oral testimony has unequivocally confirmed an absolute absence of consultation with the Worker.”

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(Page 17)

“42. ? In examining the principles associated with redundancy in RSBD No. 10 of 2008 – Seamen and Waterfront Workers Trade Union and West Indian Tobacco Company Limited, it was held, among other things, that: “Each event on its own accord is sufficient and can give rise to an invalidation of or nullifying a retrenchment. There is, therefore, no need to prove all since a breach of one is sufficient to overturn a retrenchment and in so doing may be deemed to be an unfair dismissal.”

Finally, the Company’s Representative openly conceded to breaches of the RSBA by the Company.

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Findings.

On the totality of the evidence, the Court has established that the Company did not meet the statutory obligations for retrenching the Worker.

The Company’s action constituted breaches in sections of the RSBA –

·??????? Section 2, Redundancy and Retrenchment

·??????? Section 4, Criteria

·??????? Section 5, Consultation and

·??????? Section 14, no retrenchment during the period of Notice as outlined in the RSBA

The Company’s action was harsh, oppressive, and contrary to the principles and practices of Good industrial relations and in direct contravention of the RSBA.” ?

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(Page 19)

????????? “Order

47.?????? The Court has considered that the Worker received severance payments of $19,215.00. Therefore, pursuant to Section 10 (3) of the Industrial Relations Act, the Court orders the Company International Shipping Limited to pay the Worker Crystal Williams Damages in the sum of One Hundred Thousand Dollars ($100,000.00) on or before April 30th 2014.”

6.????????????? CONCLUSION

Once again, the judgments from the Industrial Court have revealed that the non-renewal of a fixed-term contract of employment is not a foregone, cut-and-dry conclusion. This is the proverbial “price of the coffee”. No exam will change the orientation dealing with this price. Some of the quoted rulings above have also vividly exposed the harsh and oppressive thinking by the state enterprises operating in Trinidad and Tobago even today, as we start 2025 (January). These types of discoveries should jolt taxpayers about the wastage, incompetence and negligence which they are paying for from the industrial relations advisors of the state enterprises. Undoubtedly, unconscionable and uncorroborated advice/evidence continue to mislead employers because they seem to believe in the rubbish advice that they keep receiving since such employers are clearly hard-headed or are being advised by yes-men and yes-women who do not take the time to read the judgments which I have quoted above, which are available from the library of the Industrial Court, and which His Honour Mr. Addison Khan directed you to. Unfortunately, many so-called industrial relations experts have never heard about His Honour Mr. Addison Khan. Are most employers being advised by experts who never visit the library of the Industrial Court in order to discover what is taking place in the world of Industrial Relations? Do advisors of the employers in Trinidad and Tobago even know where the libraries of the Industrial Court are located and the services which are available there? If employers come to their senses in this Country in 2025, because they have read my articles on the fixed-term contracts of employment, I am convinced that they will absolutely agree that any decisions whether to renew a fixed term contract requires technical decision making on whether there are certain operational needs at the Company which mandate the renewal of the fixed-term contract in order to look after those operational needs of the Company. The technical decision making would see the need for the managers in operations being called upon to help with the selection of employees to be retrenched or to be returned via a fixed-term contract of employment. Such managers would definitely make far less mistakes in their selections if they are mentored properly in understanding the principles and statutes dealing with the restructuring and retrenchment exercise. Mentorship does not start at the first week of the month and ends within the 3rd week of that same month. Mentorship is an ongoing thing that is done throughout the years at companies which wish to embellish their staffing needs and their relationship with their workers.

For those of you who may want to obtain a clarification of any of the issues mentioned within this article, you can contact me conveniently at [email protected] .

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END.

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