21October2014

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What An Employer Should Know About Industrial Relations

1. Oral/Written Contract?

It is preferable to have a written contract, as written contracts reduce to writing what parties have agreed to.

2. Duration of Contract?

Contracts can be short term (6 mths, 1 yr.); fixed term (3 years); temporary; or permanent.

There are two types of contracts; these are contract for service and contract of service.

3. What is contract for service?

Contract for service refers to hiring an individual or group of individuals as an independent contract for services being provided by the individual or group e.g. caterers, gardeners, cleaning services etc. The independent contractor works for himself and is free to have other clients. The contractor has complete responsibility for his own statutory deductions and that of his employees.

4. What is contract of service?

Contract of service refers to an individual who is hired to provide a service to a company as an employee of the company. The company hires the person, has control of his time and the way he does the job, and the person is not free to work for other persons or firms. The company is liable to make all statutory deductions from the person’s wages.

5. What should a contract of employment contain?

The following list can be served as a guide to the construction of a contract of employment.
− Name of employer; name of employee;
− Date on which employment becomes effective. Period of contract (subject to renewal upon review).
− Job title;
− Rate of pay, period and method of payment. Information relevant to statutory deductions;
− Normal hours of work week and related conditions e.g. time and length of meal breaks/ overtime;
− Arrangement for annual leave and holiday pay, including means whereby both can be calculated precisely;
− Terms and conditions relation to sickness, injury and sick pay;
− Length of notice due to and from employees;
− Disciplinary rules and procedure;
− Arrangements for handling employee grievance;

− (Where applicable) Conditions of employment relating to trade union membership;
− Termination of contract (resignation, dismissal, retrenchment….)

6. What are the basic entitlements to decent work?

Employer’s responsibility:
− To provide a clean and safe working environment;

− To provide a fair wage for a fair day's work. The Minimum Wage Act provides specific instructions for this responsibility.

Questions 5, 6, and 7 below are guided by the Minimum Wage Act Section 3

7. How many hours must a worker work in a day?

The normal working day in Trinidad and Tobago shall not exceed eight (8) hours, exclusive of meal and rest breaks.

8. How many hours must a worker work in a week?

The normal workweek shall not exceed forty hours, exclusive of meals and rest breaks.

9. How many hours must a worker work in month?

The normal working month shall not exceed one hundred and seventy –three and one-third hours, exclusive of meals and rest breaks.

10. Are workers entitled to overtime payment?

The Second Schedule of the Minimum Wage Act specifies overtime wages for all workers.
i. For overtime worked beyond eight hours on a normal working day.
•    First four hours - one and one half times hourly rate
•    Second four hours - two times hourly rate

Thereafter - three time hourly rate
ii. For overtime worked beyond ten hours on a working day of a four day week
•    First four hours - one and one half times hourly rate
•    Second four hours - two times hourly rate

Thereafter - three time hourly rate
iii. For time worked on off day.
•    First eight hours - two times hourly rate

Thereafter - three times hourly rate
•    iv. For overtime on a Sunday where Sunday is a normal day
Same as (i)
•    v. For time worked on a Sunday where Sunday is not a normal day and on a Public Holiday.
•    First eight hours - two times hourly rate

•    Thereafter - three time hourly rate
vi For time worked beyond the forty-hour work week
First four hours - one and one half time hourly rate
Second four hours - two times hourly rate
Thereafter - three times hourly rate

11. Are all workers entitled to sick leave?

Generally No, however certain categories of workers are entitled to sick leave under the Minimum Wages Act in Trinidad and Tobago and a practice has developed across the board where a worker who has worked for six (6) months continuously qualifies for fourteen (14) working days sick leave. Employers shall have the right to discipline workers who is excessively absent. What is excessive has been pronounced by the Industrial Court overtime.

12. Are all workers entitled to vacation leave?

Generally No, however certain categories of workers are entitled to vacation leave under the Minimum Wages Act in Trinidad and Tobago, a practice has developed across the board where a worker who has worked for one year continuously qualifies for ten (10) working days annual leave.

13. Do employers have the unfettered right to dismiss?

No, employers had that right under common law, but since the enforcement of the Industrial Relations Act it has removed that right from employers.

14. What is the right way to terminate?

− “There must be a valid reason (convention 158) for terminating a worker’s service”.
− “To achieve the above, it is necessary and mandatory to conduct a thorough investigation of the allegation of misconduct against the worker. This is to determine whether or not; there is a valid reason.
− “Having established the reason for the termination i.e. breach of contract, violation of rules or regulation, or any thing in a laid down policy, principles and practices the reason or reasons must be communicated to the worker and Union (if any) so that he may respond.
− “The worker must always be given an opportunity to explain his situation concerning the reason against the proposed termination or dismissal.
− Save in exceptional cases a worker must be given an opportunity to be heard (Natural Justice) before any termination takes place.

15. So you are Contemplating Dismissal?

The principles of Natural Justice require that before making up his/her mind, the employer must.
− warn the employee concerned that the procedure is being operated in the context of the possibility of dismissal. Employees are entitled to know that their job is in jeopardy, as this could influence the seriousness which they attach to accusations and how they respond;

inform the employee of the accusations against him/her and the reasons why it is proposed that they be dismissed or otherwise seriously disciplined;

give the employee the right to reply to those reasons. Adequate time must be given. It may not, in all cases, be appropriate to require a response on the spot.

listen to all arguments, excuses or submissions made in relation to the matters and issues and give due consideration to them;

allow the employee the right to representation, waiting a reasonable period (at least one week, in one case before the Employee Appeal Tribunal, if necessary, for the employee’s union representative to be available;

not be a judge in his/her own case, i.e. if a manager was involved in the events which led to the disciplinary hearing, then he/she should be a witness only and a more senior or other manager should take over management of the disciplinary procedure. In small companies, it is recognised that this may not be possible and due allowance will be made for this. In such situations, however, very evident fairness will be required.

16. Do all female workers qualify for maternity leave?

No, a female worker qualifies for maternity leave under the Maternity Benefit and Protection Act once she has worked continuously for one year or more. She is entitled to thirteen weeks maternity leave; pay while on maternity leave and to resume work after such leave on terms no less favourable than were enjoyed by her immediately prior to her leave. She must comply with Section 7 of Act i.e. indicate her intention in writing to return to work etc.
During the period of maternity leave, an employee is entitled to receive pay from her employer to an amount equivalent to one month’s leave with full pay and two months leave with half pay (Section 9 (2)).

17. Are all workers entitled to severance pay?


No, once a worker has worked a year or more continuously he /she is entitled to severance pay once the position becomes redundant and there is surplus labour. The law that applies is No. 32 of 1985 Retrenchment and Severance Benefit Act (RSBA).
Under the Act Severance Benefit are as follows:
Weekly workers:
Weekly workers with 1 year - 4 years service - 2 weeks pay for each year of service or part thereof.
Weekly workers with 5 years and over service - 3 weeks pay for each year of service or part thereof.

Monthly workers:
Workers with 1-year – 4 years service - 1/2 months pay for each year of service or part thereof.
Workers with 5 years and over service -3/4 months pay for each year of service or part thereof.

NB.

An employer must give 45 days notice to each employee or payment in lieu of notice when deciding to retrench. Subject to the operational needs of his firm, an employer shall not refuse the request of an involved worker made in advance for reasonable time off on the job in order that he / she can seek employment.

 

ABSENTEEISM:

In Trinidad and Tobago a worker can tell you when he is going to get sick. He can take two days sick leave home without having to provide a medical certificate. He knows the principle so well that he comes to work on the third day, if not ensures that he has a medical certificate to support his illness. If he fails to do this he can be deemed by his employer to have abandoned his job.

Please note however: If a worker has taken ten percent (10%) or more of his total working days by absenting himself with or without a medical certificate he run the risk of committing persistent absenteeism and that is a dismissable offence.

ABANDONMENT:

It is within the right of the employer to cross the name of the worker off his payroll if the worker fails to turn up to work after three days and there is no communication or reason for his absence. The employee by his actions has repudiated the contract of employment.
This must be done after reasonable attempts have been made to contact the person at their last known address. Approximately one month would be reasonable enough.

DUTY OF THE WORKER: TRADE DISPUTE 142 OF 1997
SEE TD 142 OF 1993:
All workers are obligated to inform their employers as soon as possible for any reason if absent from work. Where because of illness, workers are unable to present themselves for work; they are under a similar duty to inform their employers of such illness as early as possible. The first two hours of the beginning of the workday would be reasonable.

“ The mere possession of a medical certificate does not entitle a worker to be absent from work; there is an additional duty to inform the employer of the worker's inability to present himself for work because of illness. These are accepted principles of good industrial relations practice but they are by no means inflexible rules”.
MEDICAL CERTIFICATES:
Fundamental principles governing Medical Certificates have been laid down.
− “ A medical certificate should be carefully written to satisfy employers who require justification to pay workers who are absent as a result of illness.
− A medical certificate should contain the date of issue and a statement verifying that medical attention was received from a medical practitioner on said day.
− A medical certificate should include the facts of the examination and the diagnosis, if it is such that these findings can be confirmed by another examination or otherwise.”

DISCIPLINING THE WORKER:

Yes! The employer has the right to discipline the worker. An employer has to get the work done through the efforts of the workers; he could only do this by co-ordinating and controlling men, machine, money, materials and motivation. As such he has the right to lay down rules and regulations, to take care of the five (5) M’s, in order to have efficient group action concentrated on the production of his goods and services.
REFUSING TO CARRY OUT A LAWFUL AND LEGITIMATE ORDER:
T.D. No 67/97 Johnson Kelvin and T.I.W.U.: A worker can refuse to carry out a lawful and legitimate order only when such order threatens his life and limb or is contrary to the law of the land. See also E.S.D. No. 25/81 T&TEC and O.W.T.U.

RETIREMENT OF WORKER ON MEDICAL GROUNDS:

Can an Employer unilaterally retire a worker on medical ground? Yes, if worker’s injury or sickness is interfering with the Company's production and goals, the employee supported with medical proof can be allowed to retire on medical grounds. This is subject to the Company satisfying itself that the worker is genuinely incapacitated through illness. See E.S.D. No. 7/95 T&TEC and O.W.T.U.

SAFETY AT THE WORK PLACE:

An employer is responsible for the safety of the worker at the work place.
That is why a worker can refuse to carry out a lawful and legitimate order that threatens his life, limb or contrary to the law. Otherwise, the worker must comply and then complain. OSHA needs to be complied with by all employers.

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