Banking Insurance and General Workers' Union v Tobago House of Assembly
| Jurisdiction | Trinidad & Tobago |
| Judge | Thomas-Felix, P. |
| Judgment Date | 17 August 2015 |
| Court | Industrial Court (Trinidad and Tobago) |
| Docket Number | Trade Dispute No. 21 of 2015 |
| Date | 17 August 2015 |
Industrial Court
Thomas-Felix, P.; Achong, C.; Aberdeen, M.
Trade Dispute No. 21 of 2015
Mr. M. AIs Deputy President for Party No. 1.
Mr. K. Anderson Attorney-at-law for Party No. 2.
Employment Law - Trade dispute — Termination of employment — Dismissal — Indefinite contract — Legitimate expectation — Whether worker was effectively dismissed — Whether dismissal inconsistent with principles of good industrial relations practices — Dismissal found to be unjustifiable — Damages awarded — Quantum.
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.
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”).
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.
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. [Clause 5 of the Contractual Agreement appended to Witness Statement of Carl Hector]
As a normal contract of service, the worker was under the total control of the Assembly, the expressed terms of the employment contract providing that the worker “occupy himself” as the employer directs and to “fully devote the whole of his time and attention whilst on duty to the services of The Assembly.” Clearly, the worker was not in business of his own and but for the designation that it is a ‘fixed term’ contract, nothing distinguished the worker from a regular employee. He was paid a monthly salary less income tax and other statutory employee deductions and was subject to periodic performance appraisal.
The worker by means of this Trade Dispute referred to us asks to be afforded the same protection that the Parliament of this country has given to all employees, with special reference to the provisions of the Industrial Relations Act (“IRA”) which expressly grants the power and provides the principles for the resolution of employment disputes to this Court. Section 10(3) of the IRA states:
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(3) Notwithstanding anything in this Act or in any other rule of law to the contrary, the Court in the exercise of its powers shall -
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(a) make such order or award in relation to a dispute before it as it considers fair and just, having regard to the interests of the persons immediately concerned and the community as a whole;
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(b) 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.
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The IRA singled out the most crucial issue in employment disputes - termination of a worker from employment, - explicitly adding clarity to these sweeping powers in s.10(4) — (6):
“(4) Notwithstanding any rule of law to the contrary, but subject to subsections (5) and (6), in addition to its jurisdiction and powers under this Part, in any dispute concerning the dismissal of a worker, order the reemployment or reinstatement (in his former or a similar position) of any worker, subject to such conditions as the Court thinks fit to impose, or the payment of compensation or damages whether or not in lieu of such re-employment or reinstatement, or the payment of exemplary damages in lieu of such re-employment or reinstatement.
(5) An order under subsection (4) may be made where, in the opinion of the Court, a worker has been dismissed in circumstances that are harsh and oppressive or not in accordance with the principle of good industrial relations practice; and in the case of an order for compensation or damages, the Court in making an assessment thereon shall not be bound to follow any rule of law for the assessment of compensation or damages and the Court may make an assessment that is in its opinion fair and appropriate.
(6) The opinion of the Court as to whether a worker has been dismissed in circumstances that are harsh and oppressive or not in accordance with the principles of good industrial relations practice and any order for compensation or damages including the assessment thereof made pursuant to subsection (5) shall not be challenged, appealed against, reviewed, quashed or called in question in any Court on any account whatever.”
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”.
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.
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.
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.
The vast majority of employment contracts are of a permanent nature, meaning that they are of indefinite duration in relation to the date of their termination. At common law, however, any employment contract may be terminated by either party giving notice. In relation to the use of fixed term contracts genuine motives exists for using it instead of the indefinite contract. As Gwendolyn Pitt in her book Employment Law explains in relation to the UK:
“[S]ometimes an employer may have a genuinely short-term need for workers and in these circumstances will wish to employ the worker for that specific period only. Examples might be catering staff to work during Wimbledon fortnight, fruit pickers to bring in the harvest, someone to cover another employee's maternity leave or a builder to work on a construction project.” [] Gwyneth Pitt, Employment Law (6th edn. Thompson/Sweet & Maxwell) 3-020
As the learned author continues, it does make sense for employers to be able to make use of fixed-term contracts when there is a genuine short-term need. However, it is capable of abuse by using a succession of short fixed-term contracts, because at common law at the end of the defined term the contract would terminate automatically and the protection of the employee in terms of, for example, redundancy and unfair dismissal would be negated and the employers avoid incurring the responsibilities which they would have to a permanent employee.[Id]
While in the UK specific legislation has been passed to combat this abuse, under our IRA, the broad power given to the Industrial Court under s.10, referred to above, “to make such order or award in relation to a dispute before it as it considers fair and just, having regard to the interests of the persons immediately concerned and the community as a whole” and further 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...
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