Question: Dear AFETT a friend of mine was recently terminated from her job. She was taken completely by surprise, and she does not believe the dismissal is justified. Does she have any recourse?
You did it! You finally landed that job at your dream company. The hard part is over, but now another major challenge is on the horizon: starting the job. A contractual agreement has been printed and signed between you and your employer, and you are anxious to start the following Monday. The long-awaited day has arrived; you show up for work only to realise, you were dismissed from your job without any former notification. Do I have any rights as a new employee? What recourse do I have? Was I wrongfully dismissed?
Employment laws can be perceived as an unsolvable maze but having a basic understanding of your employment rights is essential.
In situations where there is a breach of contract by the employer in the termination of an employee, it can be considered wrongful dismissal depending on the method used. For instance, wrongful dismissal occurs when an employee is dismissed from their place of employment without notice, or without the correct amount of notice in accordance with their contract. Wrongful dismissal also occurs when employment is terminated in breach of the terms of the contract. In other words, the “wrongful” act is only associated with the method in which the employee is terminated and not the reason for termination. Furthermore, according to Section 10(5) of the Industrial Relations Act 1972 as amended, "a worker has been dismissed in circumstances that are harsh and oppressive or not in accordance with the principles of good industrial relations practice”.
Have I been a victim of wrongful dismissal?
The following are factors to help determine whether or not you have been wrongfully dismissed.
Termination of employment in breach of contract – Common Law phenomenon:
- Insufficient notice
- Inadequate payment in lieu of notice
- Failure to follow contractual procedure
- Unjustified summary dismissal
- Constructive dismissal
- No entitlement of worker to reasons for termination
- No entitlement of worker to be heard in his or her defence
- Absence of need to state reasons or to give worker an opportunity to be heard means that worker is treated as a commodity and not as a person
- Contrary to worker’s right of autonomy to permit employer to rely on an uncommunicated disciplinary code to justify dismissal
Can I seek Protection and Rights under the Industrial Relations Act (IRA)?
The National Labour Law of Trinidad and Tobago states, “In order to seek the protection and rights afforded by the IRA, a person must fall within the definition of worker as set out in the Act. In the IRA a "worker" is defined as:
- any person who has entered into or works under a contract with an employer to do any skilled, unskilled, manual, technical, clerical or other work for hire or reward, whether the contract is expressed or implied, oral or in writing, or partly oral and partly in writing, and whether it is a contract of service or apprenticeship or a contract personally to execute any work or labour;
- any person who by any trade usage or custom or as a result of any established pattern of employment or recruitment of labour in any business or industry is usually employed or usually offers himself for and accepts employment accordingly
- any person who provides services or performs duties for an employer under a labour only contract, within the meaning of subsection (4)(b)
- any such person who -
- has been dismissed, discharged, retrenched, refused employment, or not employed, if in connection with, or in consequence of a dispute
- whose dismissal, discharge, retrenchment or refusal of employment has led to a dispute
- any such person who has ceased to work as a result of a lockout or of a strike, whether or not in contravention of Part 5, as the case may be.
Remedies in case of unjustified dismissal according to the National Labour Law of Trinidad and Tobago
Where an employee alleges wrongful dismissal, he or she may seek union representation and failing settlement, have his or her matter heard and determined by the Industrial Court. Remedies that may be granted by the Court for wrongful dismissal include reinstatement or re-employment, compensation or damages, including exemplary damages in lieu of reinstatement. In assessing compensation or damages, the Court is not bound to follow any rule of law, but may make an assessment that is in its opinion fair and appropriate.
AFETT is a not-for-profit organisation formed in 2002 with the goal of bringing together professional women and engaging in networking opportunities, professional training and business ideas. ASK AFETT is a column meant to address issues and concerns of professionals seeking advice to assist in progressing in their careers. Today's response was written by AFETT member, Sally Ann Bharat, Corporate Training Consultant at Stratosa Consultancy Services. She can be reached at firstname.lastname@example.org. Learn more about AFETT at www.afett.com, search for AFETT Events on Facebook, follow us @AFETTEXECS on Twitter or contact us at 354-7130. Email us your career-related questions at email@example.com.