WORKERS ON PROBATION ARE TENACIOUSLY PROTECTED BY THE INDUSTRIAL COURT

IS A WORKER WHO IS A PROBATIONER PROTECTED FROM AN OPPRESSIVE AND UNFAIR DISMISSAL?

?In Trade Dispute No. 313 of 1978 (Delivered on March 15th 1979) the Industrial Court had to deliberate on whether an employee could bring as a dispute “that notwithstanding the fact that she was on probation, the Company had exercised its right during the period of probation harshly.” As far as the Court was concerned it concluded that “the question really is one whether the Company was entitled to terminate Ali’s employment without giving reasons for its action.” In arriving at its decision, the Court gave us the following last paragraph:

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“In this case it is clear that the period of probation had not expired and whether the reasons which I have not heard were harsh or oppressive or not I do not find that the employer was unjustified in dismissing Ali. I therefore dismiss this dispute.”

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Clearly, on that memorable occasion, the Court was of the view that it did not even need to hear any reason from a probationer because the employer had an absolute right to terminate such an employee at will. Therefore, it came in a stunning manner the decision in Trade Dispute No. 101 of 1992 (Delivered on June 28th 1994) when Acting President, His Honour Addison Khan, stated the following:

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“It is well known in industrial relations practice that there are varying degrees of dissatisfaction with worker’s services. ?For summary dismissal to result, there must be dissatisfaction of a very serious nature and the Company must have taken steps to bring the dissatisfaction to the worker’s notice and allow a worker an opportunity to correct any deficiencies. There is also the matter of progressive disciplinary action. Summary dismissal is rarely justified where a worker has not been told beforehand of his shortcomings in performance and given an opportunity to improve his performance.

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It was, moreover, in a case like this where the worker was required to serve a defined period of probation in a stated position, important for the worker to be given a fair opportunity to perform in the stated position in order for her performance to be properly assessed.

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We find that the worker was transferred prematurely from the position of Secretary to Showroom assistant and that she was not given sufficient time to perform in either position for her performance to be properly assessed. Additionally, we find that she had completed the agreed probationary period of three months before the Company dismissed her notwithstanding that the Company did not issue to her a letter of confirmation. We find that if, after the worker had completed the three-month probationary period, the Company was dissatisfied with her performance but still desired to employ her, the Company was required to inform her of the extension her probationary period. This the Company did not do and we do not accept that the Company had at any time decided to extend the worker’s probationary period. Such a decision cannot be kept as a secret of management. The principles of good industrial relations practice require that in such an event. The worker must be informed.”

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With the passing of time, it has become evident that the ruling contained within Trade Dispute No. 313 of 1978 has now been unequivocally rejected by the precedents delivered at the Industrial Court and the ruling contained within Trade Dispute No. 101 of 1992 is considered as a foundation ruling when it comes to the job security of a probationer. Proof of my assertion here can be easily ascertained when you put your hands and eyes on Trade Dispute No. 386 of 1997 which was delivered on November 25th 1998. The following two (2) quotations from it will suffice as it relates to the amelioration of the concept of the probationary period in Trinidad and Tobago:

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“… We are constrained to say with regret and with all due respect to the author of that judgment (referring to Trade Dispute No. 313 of 1978) that his dictum is not a correct statement of the law even as it was twenty years ago. If the dismissal of a probationer is found to be harsh and oppressive, then it is ipso facto unjustified. In fact, the law requires that the dismissal of any worker, whether he is on probation or permanently employed, should be in conformity with the principles and practices of good industrial relations. In practice, this means that a probationer must be given ample and adequate opportunities to prove himself to be qualified for permanent employment, and he should be subject to fair and adequate assessment and appraisal of his performance.

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The law on this point was reaffirmed in two fairly recent decisions of this Court namely Trade Dispute No. 101 of 1992 Communications Workers’ Union vs. Busy Business Systems and Equipment Ltd. [28th June, 1994] and Trade Dispute No. 5 of 1994 Public Services Association of Trinidad and Tobago vs. princess Elizabeth Centre [4th May, 1995]. In the first case a worker was appointed as a Secretary on three months’ probation on 13th August, 1991 but within two months she was transferred to the position of a showroom clerk, and her employment was eventually terminated on 29th November, 1991 because of the employer’s alleged dissatisfaction with the performance of her duties. The Court found that her dismissal contravened the principles and practices of good industrial relations and awarded damages… .”

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“… From all of the evidence and arguments both written and oral put forward on behalf of the Company, it is clear to us that the Company took the view that the worker as a probationer, was in virtually the same position as a temporary employee, and that it had the right to dismiss him without cause during the probationary period. This is a serious error, and we take this opportunity to restate the correct legal position. A probationer does not have the security of tenure which a permanent worker enjoys; what he does have is a promise of pledge from the employer that he will be given that security of tenure if he proves himself suitable and worthy of it during his period of probation or any extensions of it. The employer therefore has a duty to ensure that such a worker is properly and adequately supervised, and that he is given ample opportunity to correct any shortcomings which the employer may detect. Failure on the part of the employer to do this is a failure to observe the principles and practices of good industrial relations.”

HOW EXPENSIVE ARE THE MISTAKES WHICH MAY BE MADE WITH THE MODERN PROBATIONER?

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In Trade Dispute No. 264 of 2016 (Delivered on December 11th 2020), the Industrial Court ordered $1,055,000.00 for an employee who was on probation and had 13 months of service because her three (3) year contract was prematurely terminated without any performance appraisal and other lawful requirements as mentioned above. The following two (2) quotations may reveal the nature and scope of the thinking of the Industrial Court in this matter:

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“… Analysis:-

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A detailed analysis of the facts and law in this trade dispute has revealed that there are two facts for the consideration of the Court, the first is that the Worker was summarily dismissed, that is to say, without due recourse to any form of natural justice and secondly the employment relationship was totally destroyed, that is to say, there was a loss of trust and confidence on both sides.

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Considering the fact that the Worker was dismissed without due recourse to any form of natural justice the Court noted the extent to which the Authority failed to observe the probationary clause in the Worker’s contract of employment which stated as follows:

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“The probationary period clearly stated that the person engaged shall serve a probationary period of six (6) months. At the end of the period the performance of the person engaged shall be assessed to determine his suitability for continued employment.”

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However, at the end of the worker’s probationary period, the Authority did not, in any manner, assess the Worker’s performance to determine her suitability for continued employment.

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Actually, the Chairman of the Board issued three letters to the Worker raising concerns about her conduct and or performance and had failed to discuss the issues raised in the letters with other members of the Board. Furthermore, the concerns were raised during the Worker’s probationary period and subsequently the Worker was dismissed months after for completely different reasons which were never addressed by the Chairman of the Board. Additionally, nowhere in the Worker’s letter of termination was any reference made to the previous allegations on which the Worker was written.”

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“… Findings:-

1.???? This is a most extreme case of a worker being dismissed without due recourse to natural justice.

2.???? The Authority had failed to implement any form of disciplinary procedure which would have afforded the Worker an opportunity to be heard.”

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Similarly, in TRADE DISPUTE NO. 210 OF 2016 (delivered on December 16th 2019) a probationer with two (2) months service was awarded $670,000.00 for the premature termination of a three (3) year contract. The following quotation will be quite instructive for you to appreciate the cavalier manner in which certain managers conduct themselves when taxpayers’ monies have been put under their control:

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????????? “… The worker’s termination letter stated inter alia:-

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Based on review of the structure and staffing of the Communications Unit, a decision has been taken to assign public service established post to the said unit.

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In light of the above decision, the contract position of Senior Corporate Communications Officer will no longer be required for the said Unit. Therefore your employment on contract as Senior Corporate Communications Officer is terminated with immediate effect. ”?

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At no time prior to issuing this letter was the worker called in and told about any restructuring exercise.

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In fact, in her witness statement, the worker stated inter alia:-

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“I found the process to be unfair and extremely harsh as I was given no warning whatsoever and I was being terminated a mere two (2) months after assuming the position.

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The Ministry must have known that a restructure was being planned and could have avoided me leaving my job at NAMDEVCO.”

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Earlier in this judgment, I referred to the timelines with respect to the restructuring exercise and the very concerning failure of the employer to furnish the Court with the relevant dates of the exercise.

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In the absence of evidence to the contrary, I agree with the worker’s sentiments that the Ministry must have known that such an exercise was being planned. However, for reasons best known to them, they still proceeded to employ the worker.

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This flawed approach by the employer is further compounded by the unchallenged evidence of the worker that she left her job at NAMDEVCO to take up her appointment at the Ministry.

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Obviously, the worker would have reasonably expected to at least complete her three (3) year period of employment.

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On the basis of all of the evidence, arguments and submissions received, it is quite clear that the manner in which the worker was terminated constituted a violation and a fundamental breach of the principles of procedural fairness and the rules of natural justice.

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All terminations, all dismissals, are governed by and attract the principles and practices of good industrial relations.

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Irrespective of the reason or cause, all workers are entitled to the opportunity to be heard and informed of any exercise or issue being pursued by his or her employer that has the potential to impact negatively on their future employment.

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CONCLUSION

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As a consequence of the above analysis and findings, I find and so hold that the dismissal of the worker was effected in circumstances that were harsh, oppressive and contrary to the very basic principles and practices of good Industrial Relations.

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ORDER

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In arriving at the Quantum, I took into consideration the unexpired period of the worker’s contract and the manner of the worker’s termination.”

FAILURE BY A MANAGER TO APPLY DUE PROCESS WITH A PROBATIONER EXPOSES HIM OR HER TO BEING PROCESSED FOR GROSS NEGLIGENCE

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The following three (3) quotations from the landmark judgment of TRADE DISPUTE NO. 80 of 2000 (Delivered on July 16th 2002) are instructive in this regard:

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“… The performance issue:

The Worker’s Performance Appraisal

At the end of her three (3) months of probation, a performance appraisal was conducted by the Worker’s supervisor, Mr. Aqui. He rated her overall performance in relation to agreed objectives as 5. He commented that her performance was at the highest level, and therefore recommended that she be confirmed in the post of General Manager.

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The Court noted as well the comments made by the Worker of her appraisal. Although the Worker agreed with Mr. Aqui’s assessment, she highlighted that the format of the document did not capture all of her accomplishments during the period under review.

The Court heard evidence that the Board did not concur with the views of Mr. Aqui on his findings of the Worker’s performance. However, it is the Court’s view that since he was the Worker’s immediate supervisor, his evaluation of her performance would have been the most pragmatic and objective.

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Evidence was also given about an attempt that was being made by the Company to redesign the performance appraisal. The exercise which was expected to be undertaken by Mr. Cox, was however, never completed.

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It is our view that the Company’s failure to complete the Worker’s appraisal amounted to GROSS NEGLIGENCE and was contrary to good industrial relations practices. The worker was placed on probation for an extended period of nine (9) months, and given the Company’s opinion of her performance it was crucial to both the Worker and the Company that other written appraisals should have been conducted.

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Although the Company claimed that it frequently met with the worker and made a proper assessment of her performance during the extended probationary period, the Court found that the manner in which the Company conducted its evaluation of the worker, particularly over the probationary period for such a critical position in the organization, left much to be desired and certainly fell short of proper industrial relations practices and procedures.”

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“… The Probation and Employment Contract

The Probation:

Regarding the extension of the probationary period, it is to be noted that the Worker’s original employment agreement contained no provision for extending her probation beyond an initial three (3) months. We noted that the Worker did not object when her probation was initially extended by a further three (3) months. However, at the end of that three (3) months’ probation, the Company decided to extend her probationary period by a further six (6) months. On this occasion the Worker demonstrated her objection overtly while continuing to fulfill her obligations under the existing employment agreement.

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In the Court’s view probation is a testing period. We are fortified in this opinion by ESD No. 6 of 1981 between Trinidad and Tobago External Telecommunications Company Limited (TELCO) and the Communication Workers’ Union (CWU) where the Court affirmed that:

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“New workers are usually required to serve a period of probation which by its very name connotes testing. Testing both for the employer and the worker. It is a period required by the employer to judge the worker’s ability and capability for the job and by the worker to determine whether the job meets his expectations. In many instances the element of training is involved in which case the probationary period is in addition a “breaking-in” period.

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During probation the worker is to establish himself and the employer is to give him a reasonable opportunity of so doing.”

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We are also of the opinion that a probationary period is:

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“… a period in which both employee and employer are entitled to take the measure of each other and to decide before the expiration of the period of probation whether they wish to continue the relationship of employer and employee.” (See ESD 6 of 1981, Supra)

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Further we hold the view that an employer has the right to terminate the services of a worker whose performance he finds unsatisfactory.

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However, the Court finds that since the Company detected areas of weakness in the Worker’s performance, there was an obligation on the part of the employer to ensure that the Worker was properly supervised and evaluated over the extended periods of her probation.

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We are of the view that the explanation given by Mr. Cox, her immediate supervisor that the revised format of the performance appraisal was misplaced and therefore he could not have completed his assessment of the Worker’s performance, was a poor excuse and a clear indication of the NEGLIGENCE AND COMPLACENCY.”

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“It is our opinion that extended periods of probation are not only for evaluation of an employee’s performance, and we are fortified in our view by the judgment in TD No. 76 of 1995, between the Communication Workers’ Union and the Tye Manufacturing Company Limited, that probation is as well, a period of “guidance and training when the employer was expected to provide support and encouragement to the worker as may be necessary…”

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Further, we agree that:

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“… workers on probation should at all times be safeguarded against, employers who unduly prolong the period of probation so as to be accorded the benefit of the workers’ output while keeping them dangling on a string, holding their confirmation in abeyance.” (See ESD 6 of 1981, Supra)

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We hold that the worker was treated unfairly by being placed on unduly prolonged periods of probation. Her confirmation of employment was held in abeyance while the Company benefitted from her services as general Manager.”

CONCLUSION

For your own growth and development in this topic, I strongly recommend that you read TRADE DISPUTE NO. 335 OF 2014 (Delivered on February 1st 2017) to see how almost 12 years had passed in the Industrial Relations Jurisdiction of Trinidad and Tobago and yet another credit union once again failed to apply the principles and practices which were identified 12 years earlier by the Industrial Court. Small wonder then that the earlier judgment mentioned above had awarded damages equal to approximately 19 months’ salary while in the latter matter the damages were equal to approximately 30 months’ salary. In the above former case the worker had 12 months of service. In this latter case the worker had 9 months of service. Hopefully, you are not thinking about making that mistake in the contemporary period by ignoring the advice from the Industrial Court, contained within the court judgments which I have quoted in this article.