Whether you are a small busi­ness own­er or di­rec­tor of a large com­pa­ny, there are sim­i­lar is­sues which neg­a­tive­ly im­pact op­er­a­tions. A busi­ness own­er must con­sid­er the eco­nom­ic cli­mate, abil­i­ty to se­cure con­tracts/sales, in­come and ex­pen­di­ture, cou­pled with count­less oth­er mat­ters. A grow­ing con­sid­er­a­tion should be em­ploy­ees. The terms of em­ploy­ment, dis­ci­pli­nary ap­proach, em­ploy­er/em­ploy­ee re­la­tion­ship and the ap­proach to be adopt­ed should the need to ter­mi­nate an em­ploy­ee arise.

The In­dus­tri­al Re­la­tions Act is a piece of leg­is­la­tion that has al­ways con­cerned me. While it pro­vides con­sid­er­able safe­guards for the em­ploy­ee, I do not think it has struck a bal­anced ap­proach which ad­dress­es the em­ploy­er’s con­cern. I re­mem­ber read­ing a con­ver­sa­tion be­tween two peo­ple once and it can be used to de­scribe this act. The man was en­ter­ing in­to an agree­ment with an­oth­er per­son and the con­tract was long and cum­ber­some to read.

The man, in frus­tra­tion, asked the lawyer who pre­pared the doc­u­ment whether he could sum­marise his risks should he sign. The lawyer told the man if he did what he need­ed to un­der the con­tract, noth­ing word­ed in it would harm him, but if he did not do what he had to, then noth­ing in the con­tract would save him. That is the In­dus­tri­al Re­la­tions Act; should an em­ploy­er keep their em­ploy­ee in their job un­der agreed terms and con­di­tions, then all is well, but should they dis­miss their em­ploy­ee due to some is­sue, noth­ing can save them.

I have seen frus­trat­ed em­ploy­ers ter­mi­nate em­ploy­ees for what they deemed to be “gross mis­con­duct” or a “his­to­ry of dis­ci­pli­nary is­sues” and de­spite this, have had to pay con­sid­er­able sums award­ed by the In­dus­tri­al Court for un­fair or con­struc­tive dis­missal.

Un­fair dis­missal claims are one side of the coin and are easy enough to ap­pre­ci­ate; an em­ploy­ee is ter­mi­nat­ed and they be­lieve they should not have been.

Con­struc­tive dis­missal is slight­ly dif­fer­ent; an em­ploy­ee quits be­cause of some al­leged wrong­do­ing by the em­ploy­er, or a hos­tile en­vi­ron­ment or some sce­nario where­by they be­lieve they are be­ing pushed out of a job.

As em­ploy­ers, we are hes­i­tant to is­sue dis­ci­pli­nary let­ters for fear that an em­ploy­ee may de­cide to ter­mi­nate their em­ploy­ment or be­cause we do not want to be un­du­ly harsh.

Yet, the fail­ure to keep a prop­er pa­per trail or to con­vene a dis­ci­pli­nary com­mit­tee to dis­cuss the em­ploy­ee’s con­duct and at­tempt to rec­ti­fy same, are is­sues that will re­sult in sig­nif­i­cant awards in favour of an em­ploy­ee. Bot­tling up frus­tra­tion with an em­ploy­ee’s con­duct and then hav­ing a meet­ing where all of it is thrown on the ta­ble (as some peo­ple tend to do), can be viewed as a form of con­struc­tive dis­missal, de­spite nev­er ac­tu­al­ly putting the em­ploy­ee on no­tice or show­ing them the door.

Christ­mas is here and af­ter comes the Car­ni­val sea­son. Dur­ing both of these times, Trin­bag­o­ni­ans spend hefty amounts on gifts, ren­o­va­tions, fete tick­ets, Car­ni­val cos­tumes etc. Not all peo­ple can read­i­ly pay for these from sav­ings, so, we turn to loans and cred­it cards.

Some em­ploy­ers who be­lieve they share a good re­la­tion­ship with their em­ploy­ees of­ten is­sue em­ploy­ment let­ters fal­si­fy­ing the salary of their em­ploy­ees in let­ters to the bank in sup­port of loan ap­pli­ca­tions. Em­ploy­ers be­lieve they are help­ing, yet, when re­la­tion­ships sour and claims are filed in the In­dus­tri­al Court, these let­ters are used in an at­tempt to prove a high­er salary. There have been cas­es where the em­ploy­ers were made to pay ben­e­fits to the em­ploy­ee based on the salary as con­tained in let­ters to the bank.

The act, in essence, en­sures that em­ploy­ees should not be ter­mi­nat­ed with­out no­tice and there should be a pa­per trail for em­ploy­ees who had var­i­ous in­frac­tions. Em­ploy­ees should not on­ly be warned of im­prop­er con­duct, but at­tempts should al­so be made to as­sist them with rec­ti­fy­ing their poor con­duct. Em­ploy­ers have a ten­den­cy to be­lieve they are right in ter­mi­nat­ing em­ploy­ees with­out no­tice and then con­tend­ing there was a his­to­ry of con­duct.

Agree­ably, there may have been a his­to­ry, but one that was not prop­er­ly record­ed or brought to the em­ploy­ees’ at­ten­tion; even in these cas­es, the em­ploy­er will be made to pay some form of dam­ages to the em­ploy­ees.

For em­ploy­ers think­ing about ap­peal­ing, the In­dus­tri­al Re­la­tions Act is clear; an ap­peal can on­ly be brought on points of law. It means fil­ing an ap­peal may not be as easy.

An ap­peal can usu­al­ly be brought on points of law or fact. It is well known that prov­ing an ap­peal on fact is an up­hill bat­tle, yet, civ­il mat­ters and crim­i­nal mat­ters still have the chance to at­tempt to prove that a tri­al judge may not have con­sid­ered facts which were be­fore them. But, with mat­ters out of the In­dus­tri­al Court, there is no such con­sid­er­a­tion.

While an ap­peal can be filed, if that ap­peal is not on a point of law, the ap­peal can and will be struck out. It means, in essence, the em­ploy­er is bound by the court’s de­ci­sions.

I ap­pre­ci­ate that for many years, many em­ploy­ees did not have the ben­e­fit of prop­er pro­tec­tion, which was, in fact, need­ed. Yet, pro­tec­tion can­not be skewed.

Em­ploy­ees can­not rest com­fort­ably in the be­lief that they can con­duct them­selves how­ev­er they wish and the law will pro­tect them. It means that as long as the act re­mains as it is, em­ploy­ers who do not wish to be on the wrong side of a mon­e­tary judg­ment need to take ex­tra pre­cau­tions to pro­tect them­selves.

Sad­ly, some em­ploy­ers may not be aware of what these pre­cau­tions may be and con­tin­ue to run their busi­ness­es as they have for many years and not re­alise they can be leav­ing room to be chal­lenged in court.