By Ravi Nanga
THIS week I will look briefly at contracts of employment.
As with any contract, you can have a written contract or an oral contract. Such contracts will contain the terms and conditions of a person’s employment and define the rights and obligations of the employer and employee.
There can be individual contracts of employment between individuals or a document such as a collective agreement entered into between a union and an employer. This collective agreement will be regarded as an employee’s contract of employment, however, it will be equally applicable to a group of persons.
In Trinidad and Tobago, there are two courts that have jurisdiction to determine disputes relating to contracts of employment. These courts are the High Court and the Industrial Court.
With respect to the enforcement of collective agreements, the Industrial Court has exclusive jurisdiction. Prior to the establishment of the Industrial Court, where a dispute arose between an employer and an employee the High Court enjoyed exclusive jurisdiction with respect to such disputes and these disputes were settled in accordance with common law principles.
What this meant was that the High Court would look at the contract of employment, interpret the terms and conditions and determine the dispute accordingly within the four corners of the contract.
Given the state of the common law, there was a certain view that there was insufficient protection being afforded to employees. For example, at common law, where a contract had a provision providing for the termination of the contract, the High Court would strictly apply that provision. Accordingly, there could be a situation where an employee worked for thirty years, whose contract provided for termination with one month’s notice, and after that length of service, have his employment terminated by one month’s notice, with no benefits. It is readily apparent the hardship that an employee could face should that have occurred.
Even where there was no provision for termination, the High Court could then determine what constituted reasonable notice in order to terminate the employee.
Given these circumstances, it was determined that employees required protection from the harshness of the common law. Accordingly, the Industrial Court was established.
The Industrial Court has jurisdiction to determine disputes involving contracts of employment and the remedies that were available to employees were expanded.
As opposed to determining disputes in accordance with the strictures of the common law, the Industrial Court determined whether the treatment complained of was done in circumstances that were harsh and oppressive. The establishment of the Industrial Court gave birth to the concept of good industrial relations practice, which simply meant that employers are expected to act reasonably and fairly when dealing with employees. The Industrial Court therefore offered protection to employees where the High Court could not due to the strictures of the common law.
One of the important differences between the powers of the High Court and the Industrial Court is that in the case of a termination the Industrial Court has the power to order the reinstatement of a terminated employee, whereas the High Court has very limited powers to do so. In the High Court, if there was a public law element, in that the employment was subject to statutory terms, the High Court could quash an employer’s decision to terminate an employee. However, this remedy is available in limited circumstances and only where the employer is a public body.
However, it should be noted that not all employment with a public body will automatically enjoy this protection. It will depend on the particular circumstances. The reason behind the High Court’s limited powers in this regard was due to the policy that the law was not to be used to force two unwilling parties to enter into a contract.
Accordingly, if an employer no longer wished to employ an employee, the common law will not force such an employer to continue with the employment.
The Industrial Court however, has the power to order an employer to reinstate an employee, whose termination was done in circumstances that were harsh and oppressive.
Generally, a termination will be regarded as harsh and oppressive if there was a failure to follow proper procedure. Even where there was a termination clause, the Industrial Court would determine whether reliance on such a clause was exercised in circumstances that were harsh and oppressive.
Therefore, if there was no good reason to rely on a termination clause, the Industrial Court was clothed with the power to set aside such a termination.
The Industrial Court administers the Industrial Relations Act, which provides a comprehensive code that governs employment matters. In a subsequent article I will examine the jurisdiction of the Industrial Court, as well as some basic principles of good industrial relations practice.
In order to access the Industrial Court, it is necessary that a person be regarded as a worker. A worker is defined in the Industrial Relations Act.
If a person does not fall within the definition of a worker and such a person has a dispute involving their contract of employment, they will have to pursue recourse in the High Court. Further, if a person is regarded as a “worker”, unlike in the High Court where an individual can commence an action, in the majority of cases it is only a trade union who can approach the Industrial Court.
Accordingly, in order to access the Industrial Court, a worker must be a member in good standing of a trade union. It must be pointed out that the usual matters that are determined by the Industrial Court must first be reported to the Ministry of Labour and Small Enterprise Development. The ministry will attempt to resolve the dispute through conciliation and in the event that the dispute cannot be resolved, it will then be referred to the Industrial Court for determination.
Therefore, where an employee feels that he has been aggrieved by his employer, there are a number of remedies that may be available to him. Depending on the circumstances of the employment, such remedies can either be pursued in the High Court, where in the majority of cases, the remedy will be limited to monetary compensation. If the employee is regarded as a worker under the Industrial Relations Act, he can pursue his remedies in the Industrial Court through a Trade Union, where that Court has some additional powers prescribed by that Act.
Ravi Nanga is an attorney-at-law.
(Please note that this article is intended only to provide general information on the topic being addressed and should not be taken as providing legal advice. In order to be properly advised it will be necessary for an attorney to examine the relevant documents and obtain the necessary instructions before properly advising as to rights and obligations).