Sources
of regulation
There is no general legislation governing termination of contracts of employment in Trinidad and Tobago. Common law principles
apply in the absence of termination provisions in an individual contract of employment and/or a collective agreement.
Specific provisions concerning termination of contract of employment are found in the following statutes:
- Industrial Relations Act, Chapter 88:01, 1972 (IRA);
- Retrenchment and Severance Benefits Act, No. 32 of 1985 (RSBA);
- Trade Unions Act Date, No. 20, 1932;
- Maternity Protection Act, 1998.
Trinidad and Tobago is a member of the Caribbean Community (CARICOM) whose Standing Committee of Ministers responsible for
Labour adopted in April 1995 the Model Harmonisation Act regarding Termination of Employment, drafted with the assistance of the
International Labour Office
(see below "Further Information").
Trinidad and Tobago has not ratified the ILO Termination of Employment Convention, 1982 (No. 158).
Scope
of legislation
The definition of "worker" in the Industrial Relations Act, 1972, is restrictive (Section 2(3), IRA) and excludes from
its scope the following persons:
- public officers;
- members of the Defence Force, the Police, Fire or Prison services, members of the Police Service of any Municipality or
persons employed as rural constables or estate constables;
- members of the Teaching Services as defined in the Education Act (or employed in a teaching capacity in "an institution of
higher learning");
- employees of the Central Bank;
- persons responsible for the formulation of policy in, or the effective control of, any enterprise (or who have an effective
voice in the formulation of policy in any enterprise);
- persons employed in any capacity of a domestic nature;
- apprentices within the meaning of the Industrial Training Act.
The Retrenchment and Severance Benefits Act, 1985 (Section 3(1)), is applicable to persons falling within the definition of
"workers" under the IRA, with the exception of:
- workers with less than one year of continuous service;
- workers serving a probationary or qualifying period of employment;
- casual workers;
- seasonal workers (unless they are employed as part of the regular work force for at least three consecutive seasons with the
same employer and for at least 100 days each season);
- 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
- independent contractors.
The Maternity Protection Act, 1998, is of much wider scope than the Industrial Relations Act. According to Section 4 of the
Maternity Protection Act, an "employee" includes a public officer and any person who has entered into or works under a contract
with an employer to carry out any trade, business, office, vocation, apprenticeship, or other work and whether the work is skilled,
unskilled, manual, technical, clerical, or otherwise for hire or reward, whether the contract is expressed or implied, oral or in
writing, whether the remuneration is calculated by time or by work done, and whether by the day, week, month, or with reference
to any other period, and includes an agricultural employee, a domestic employee, or a household assistant.
Contracts of employment
A contract of employment in Trinidad and Tobago may be oral or in writing, express or implied (Section 2(1), IRA).
Common law is applied by the Industrial Court when determining the question of whether a contract of employment or a
contract for service exists between a person and an employer. It is a question of fact in each case and the Court will go
beyond the wording of any written contract to determine the true nature of the relationship. This occurred in the case of
Oilfields Workers' Trade Union and Schlumberger Trinidad Inc. RSBD No. 4 of 1996, where the company claimed that since the worker,
who was employed for a period in excess of ten years on consecutive six month contracts, was employed on a fixed term basis, he
did not fall within the definition of 'worker' in the Retrenchment and Severance Benefits Act, and was therefore not entitled to
severance payment. The Court held that neither the worker nor the employer could contract out of the Act and found that the worker
was in continuous employment with the Company, despite the six month contracts, and was thereby entitled to severance pay
(See ILO National Labour Law Profile: Trinidad and Tobago).
As mentioned above, the Retrenchment and Severance Benefits Act, 1985, excludes from its scope of application workers on
fixed-term contracts, but specifies that the period covered by a fixed-term contract cannot exceed the period of a project
(including any extension granted for completion of the project). It adds, however, that, where workers are transferred from
project to project, notwithstanding any short breaks between projects, they are not regarded as being excluded from the
application of the Act (Sections 3(1) and (2), RSBA).
There is no statutory provision dealing with the probationary period, which may be decided by mutual agreement of the employer
and worker. Any recognised majority union is entitled to negotiate clauses relating to probationary periods for insertion into
the relevant collective agreement.
Termination of employment
There is no general legislation regulating termination of employment contracts.
Common law applies in the absence of termination provisions in an individual contract of employment and a collective agreement.
There may be termination of employment for reasons of performance, by agreement between the parties or by breach.
Whether a contract of employment is for a fixed-term or for an indefinite period, either the employer or the worker may terminate
it.
Dismissal
As regards dismissal at the initiative of the employer, the Industrial Court has ruled that the only acceptable reasons for
termination of an employment relationship are those relating to worker's misconduct or incapacity, as well as operational
requirements (retrenchment) of the enterprise.
An employer has the right to dismiss an employee for just cause. Common law applies, as there is no statutory provision on
termination of employment on the grounds of misconduct, unsatisfactory performance or breach of contract of employment, summary
dismissal, constructive dismissal, nor on the burden of proof as regards dismissals.
The Industrial Relations Act stipulates that, where a worker takes part in an industrial action which is not in conformity with
the dispute procedure set out in Part V of the said Act, the employer may treat the action as a fundamental breach of contract
going to the root of the contract of employment of the worker (Section 63(1)(c), IRA). However, the worker can be "excused" from
the consequences of such action if the Court is satisfied that the industrial action by the worker was caused by exceptional
circumstances and that it is otherwise fair and just to so excuse the worker (Section 64(1) and (2), IRA).
According to Section 42(1) of the Industrial Relations Act, an employer may not dismiss a worker by reason only of the
circumstances that the worker (a) is an officer, delegate or member of a trade union; (b) is entitled to the benefit of an order
or award under the Act; (c) has appeared as a witness or has given any evidence in a proceeding under the Act; or (d) has absented
him/herself from work without leave after an application for leave for the purpose of carrying out his/her duties as an officer
or delegate of a trade union has been unreasonably refused or withheld. An employer cannot dismiss a worker by reason of union
membership or because of participation in union activities outside working hours (Section 42(2), IRA).
In accordance with the Maternity Protection Act (Section 12(1)), where an employee's employment is terminated on any ground
relating to pregnancy, the matter may be referred to the Minister and it will be deemed a trade dispute and dealt with as such.
Notice and prior procedural safeguards
There is no provision concerning the period of notice for termination of employment in the Industrial Relations Act, 1972.
A requirement for notice of termination of employment may be stipulated in collective agreements and individual contracts.
For monthly paid employees, this notice is usually one month.
As a general rule of case law, the Industrial Court requires that, where a dismissal is based on misconduct, the employee
be given at least two written warnings and an opportunity to take corrective action before measures are taken for termination.
In several cases concerning termination of employment, the Court has held that "a fundamental principle of natural justice
developed under the common law is that a person has the right to be heard in defence of his person or property", and that
it was "a fundamental principle of good industrial relations". The Court also made reference to the ILO's Termination of
Employment Convention, 1982 (No. 158) in these cases (see the ILO International Training Centre Database
Use of International Labour Law by Domestic Courts.
The Retrenchment and Severance Benefits Act, 1985, lays out the procedure for retrenchment. However, the RSBA only applies to
workers with more than one year of service (with some exceptions and special provisions for seasonal workers). Where an employer
proposes to terminate the services of five or more workers for reason of redundancy, he/she must give formal notice of termination
in writing to each involved worker, to the recognised majority union and to the Minister. The notice must, in particular, state
the names and classifications of the workers concerned, reasons for redundancy, proposed date of the termination of employment,
and criteria used in the selection of the workers to be retrenched (Section 4, RSBA). The employer may consult with the
recognised majority union prior to the giving of formal notice with a view to averting, reducing or mitigating the effects of
the retrenchment (Section 5, RSBA).
Section 6 of the RSBA provides for a minimum period of formal notice of 45 days. If, due to "unforeseen circumstances", it is not
practicable to comply with the required notice period, the employer is entitled to give the maximum notice that he/she can
reasonably be expected to give in the circumstances and the onus will be on him/her to prove that the said circumstances were
indeed unforeseen (Section 7, RSBA).
If the recognised majority union disagrees with any aspect of the employer's proposal for retrenchment, the parties have an
obligation to enter into discussion. If no mutually acceptable solution is agreed upon, the Minister can intervene, either upon
a request from one of the parties or on his/her own initiative (Sections 10 and 11, RSBA).
Where there is no recognised majority union, a worker to whom formal notice is given may request the Minister to intervene on
his/her behalf (Section 12, RSBA).
Subject to the operational needs of the enterprise, an employer may not refuse the request of a worker concerned, made in advance,
for reasonable time off from his/her job for seeking alternative employment (Section 16, RBSA).
The parties to a collective agreement may adopt an alternative retrenchment procedure, provided the following requirements are
satisfied: a period of notice must be stipulated and the Minister must be notified in writing (Section 17, RSBA).
Severance pay
Workers terminated on the ground of redundancy are entitled to minimum severance benefits payable by the employer as follows (Section 18(3), RSBA):
- two weeks' pay at the basic rate for each year of service for workers having completed more than one year but less than
five years of continuous service; and
- three weeks' pay at the basic rate for the fifth year and for each succeeding year of service where workers have served the
employer for five years and more.
A collective agreement cannot set out severance benefits less favourable than those specified in the Act (Section 18(2), RSBA).
Avenues for redress
Where a worker alleges wrongful dismissal he/she may seek union representation for conciliation and, failing settlement,
have his/her case heard and determined by the Industrial Court.
The Court may, in any dispute concerning the dismissal of a worker, order the re-employment or reinstatement (in his/her 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 reinstatement, or the payment of exemplary damages in lieu of such reinstatement
(Section 10(4), IRA).
An order 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 principles of good industrial relations practice. In the case of an order
for compensation or damages, the Court in making its assessment is not bound to follow any rule of law for the assessment
of compensation or damages and the Court may make any assessment that is in its opinion fair and appropriate (Section10(5), IRA).
Further information
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