Business
Diana Mahabir-Wyatt
Diana Mahabir-Wyatt
Last week’s article left hanging the explanation of what is meant in today’s environment by constructive dismissal and under what circumstances it is an acceptable charge against an employer.
As the employment environment changes, these claims appear more often. This will be the first of a series of analyses of the term’s precedents and applicability.
Keeping in mind the ability of an aggrieved worker, only under section 18 (2) subsections (a), (b), (c), (d), and (e) of the Industrial Relations Act, to escalate a dispute before it, from the Industrial Court to the Court of Appeal, where the decision of the Industrial Court is disputed on any of these specific grounds listed.
It is assumed the dispute will be escalated to the Superior Court, most likely under subsection (e), reflecting the substantially different social, commercial, and industrial environment, the 50 years intervening since the act was passed, and the substantially different environment people are employed in now compared to 1972. It is escalated to a court where it will be judged under civil law, including common law and any other legislation that that court may consider relevant.
Keep in mind that taking such a case before the Court of Appeal does not require representation by a recognized trade union, as is required in the Industrial Court.
What is required is a legal representative accredited to practice in a court of law in TT, who may or may not be a member of a trade union, and may be somewhat more expensive for a worker or an employee outside the definition of “worker.”
Constructive dismissal happens when an individual leaves their employment owing to a perception of unfairness in their employment situation.
This decision must not be made lightly or in expectation of a financial consideration alone (although this usually forms part of it), but must be recognized as a justified grievance and the complainant usually intends to claim compensation for the resultant loss of income, or, as is also claimed, the loss of expectations.
Among the charges regarded as “justifiably constructive” in precedent are:
- Employer acted unreasonably
- Employer was guilty of abusive or unacceptable conduct, e.g., immoral or illegal acts
- Employer is guilty of contractual repudiation
- There was an unjustified or unreasonable change in job obligations not agreed to by both parties
- There was an unjustified change in the employer’s positive obligations
- There was an unreasonable insistence by one of the parties on the performance or lack of performance of an aspect of the job that may have been or is now becoming unsafe or a danger to the health or welfare of the employee
- Repeated prior intention to claim unreasonableness – there was no indication of a previous acceptance of a change in responsibilities
- There was a breach by the employer of a fundamental term of the contract or an implication that such a breach was about to occur
- Under some circumstances, an insistence on a change in the employee’s place of work has been considered appropriate
- A change in the remuneration calculation or an implied change in the employee’s remuneration.
Mainly, if there is evidence of an unreasonable or unjustified change in the employer’s common-law obligations without the knowledge, agreement, or consent of the employee, there may be grounds for a claim of constructive dismissal.
The first hurdle to cross in establishing the “constructiveness” of the employee’s action in leaving the job is to establish the organization’s internal tribunal and subsequently, if it comes to that, the “reasonableness” of the employee’s complaint, as well as a decision beginning with the argument that under the circumstances, the employee had no alternative other than to leave.
What is reasonable and who decides what is and what isn’t reasonable? Or fair? There is no hard-and-fast rule.
What is regarded as reasonable in one jurisdiction, such as Barbados, may not be seen as reasonable in TT. In the UK, it was traditionally what appears reasonable to the “man on the Clapham omnibus” or “the man in the street.”
That yardstick is used in the Caribbean as well, even in today’s employment environment, where the percentage of women in the labor force grows exponentially – a yardstick which may be and often is quite different to what “the woman in the street” considers reasonable, which for obvious reasons will be quite different, as responsibilities, obligations, and physical differences make gender roles and responsibilities quite distinct from each other.
When newborns are found abandoned in landfills, for example, we do not see charges of child abandonment against putative fathers, as though all such infants are the result of virgin births.
Labour law, as do most laws in the Commonwealth, assumes that a man is the default human. This has implications in cases of the reasonableness of dismissal penalties for persistent latecoming for women on early-morning or graveyard shifts.
Before a constructive dismissal is contemplated, the wording and nature of the worker’s employment contract must be considered in relation to the employer’s contractual authority.
This is particularly relevant in cases where the worker claims that their removal from a workplace location in Port of Spain to one in San Fernando (or vice versa) was unreasonable although the job responsibilities, the job title, and wages remained the same.
Halsbury’s Laws of England define constructive dismissal as a form of wrongful dismissal insofar as it involves a repudiatory breach by the employer of a fundamental expressed term or an essential common-law implied term.
The term “constructive dismissal” in TT jurisdiction is considered not just in relation to the test of reasonableness of a management action as it is in Barbados, but also whether those actions include an actual unfair termination, an actual firing on the part of the employer, as happened in the case of Capt Hernandez of BWIA – a termination classified as a constructive dismissal first, it was a genuine dismissal by BWIA – and second, because the court resolved that the overriding principle of liability is that the law holds people accountable for the consequence of their actions.
Normally this rests on the court’s assessment of the factual basis on which the employer’s opinion rests, which will take us back to the concept of reasonableness. The second most relevant principle is a breach of an expressed or implied term of the employment contract, which is why the wording of any employment contract is key to structure and grievance-handling in industrial relations in TT.
