Victimisation and Grievance Procedure

Q: Email from Alana N. with 4 separate questions. This is question #3


A: Can the employee claim unfair dismissal for such a short period of employment at a company? There have been instances in which the employee is being side-lined (circumvented) and management have in instances been liaising with junior staff members instead of the employee who has responsibility for that department. Meetings are being conducted concerning projects that the employee has direct responsibility for and this employee is not included in the meetings. It has been drawn to the attention of the employee’s manager and is documented. How should the employee proceed to handle this situation?

Unfortunately, the qualification period for an employee to bring an unfair dismissal claim is 12 months. The employee has made the first key step, which is raising the matter with the Manager, but now it must be put into writing as an official grievance.  The employer should then arrange a meeting for facts to be presented, and then an appeal must be allowed, if necessary.

It does seem to be a prima facie case of victimisation, according to Section 6 of the Equal Opportunity Act 2000, which states that a person is victimised if he/she is treated less favourably than the employer would treat others under the same circumstances.

Rights of Employees on Probation

Q: Email from Alana N. with 4 separate questions; these are the first two:


A:

1. During the probationary period (in this case 3 months) does the employer have the right to extend the employee’s working hours (e.g. was 7.30am to 4:00pm and changed to 7:00am to 4:00pm) without the employee’s consent? The signed contract doesn’t specifically state the working hours however the HR department verbally indicated that the hours are 7.30 am to 4:00pm OR 8:00am to 4:30pm and for the past 2 months the employee has been following this time-frame. No discussions were held with the employee before a letter was sent informing the employee that the hours of work will now be extended. Note that other workers in that department didn't have the hours of work extended so it is not a departmental change/organisational change.

No, the employer CANNOT extend an employee’s work hours without notice, reason and increase in salary; and either way, it is a variation of the contract, so it will need to be accepted by both parties. The fact that it has only happened to one person is an even stronger reason why it will have no legal ground if it is forced on the employee and the matter goes to court. I would recommend that the employee raises a formal grievance concerning the matter.

2. Can the employer hold this against the employee if there is objection to the change when the probationary period is over and hence terminate the contract? At the end of the probationary period, can the employer choose not to continue the Contract without any reason or justifiable claim? Even if the employee’s supervisor provides a favourable performance appraisal?

An employer can terminate an employee’s contract without going through the procedures of warnings DURING the probationary period, but the proper procedure for dismissal (1 week notice) is still required. However, if at the END of the probationary period, the employee is fired for a non-performance related reason (and everyone is aware that the employee stood up for his/her rights), it will definitely be seen as victimisation, which is illegal according to the Equal Opportunity Act 2000. 

Also, in the case of Bank and General Workers’ Union v. Colonial Life Insurance (Company) Limited TD 265 of 1986, the Court opined:

“It is a well-established principle of industrial relations that the services of a worker on probation cannot be dispensed with for tenuous or improper reasons. An employer is not entitled at his will to terminate the appointment of a worker merely because he is on probation.”

T&T Employment Discrimination (Part 2)

According to Part III of the Trinidad and Tobago Equal Opportunity Act 2000, Sections 8-10 outline the instances where discrimination can occur, with sections 11-14 highlighting the execptions to discrimination.


Discrimination against applicants
8. An employer or a prospective employer shall not discriminate against a person—

(a) in the arrangements he makes for the purpose of determining who should be offered employment;

(b) in the terms or conditions on which employment is offered; or

(c) by refusing or deliberately omitting to offer employment.

Discrimination against employees
9. An employer shall not discriminate against a person employed by him—

(a) in the terms or conditions of employment that the employer affords the person;

(b) in the way the employer affords the person access to opportunities for promotion, transfer or training or to any other benefit, facility or service associated with employment, or by refusing or deliberately omitting to afford the person access to them; or

(c) by dismissing the person or subjecting the person to any other detriment.

Vocational training
10. A person shall not discriminate against another person where that other person is seeking or undergoing training for any employment—

(a) in the terms or conditions on which that other person is afforded access to any training course or other facilities concerned with such training; or

(b) by terminating that other person’s training or subjecting that other person to any detriment during the course of training.

Exception: Genuine occupational qualification
11. (1) Sections 8 to 9 shall not apply in respect of discrimination on the grounds of sex in a case where being of a particular sex is a genuine occupational qualification for employment, promotion, transfer or training.

11. (2) Without limiting the generality of subsection (1), being of a particular sex is a genuine occupational qualification if—

(a) the duties relating to the employment can be performed only by a person having physical attributes (excluding physical strength or stamina) which only a person of a particular sex possesses;

(b) the duties relating to the employment or training involve participation in a dramatic performance or other entertainment in a capacity for which a person of a particular sex is required for reasons of authenticity;

(c) the duties relating to the employment or training involve participation as an artist’s photographic or exhibition model in the production of a work of art, visual image or sequence of visual images for which a person of a particular sex is required for reasons of authenticity;

(d) the duties relating to the employment or training need to be performed by a person of a particular sex to preserve decency or privacy;

(e) the nature of the establishment, or the part of it within which the work is done, requires the employment to be held by a person of a particular sex; or

(f) the person employed or being trained provides or is to provide persons of a particular sex with personal services concerning their welfare, education or health or similar personal services, and those services can most effectively be provided by a person of that particular sex.

11. (3) Sections 8 to 10 shall not apply in a case where—

(a) the duties relating to the employment or training involve participation in a dramatic performance or other entertainment in a capacity for which a person of a particular race is required for reasons of authenticity;

(b) the duties relating to the employment or training involve participation as an artist’s photographic or exhibition model in the production of a work or art, visual image or sequence of visual images for which a person of a particular race is required for reasons of authenticity.

Exception: Religious shop
12. Sections 8 to 10 shall not apply in respect of discrimination on the ground of religion in a case where being of a particular religion is a necessary qualification for employment in a religious shop.

Exception: Domestic services and family business
13. (1) Sections 8 to 10 shall not apply to the employment of not more than three persons in domestic or personal services in or in relation to the home of the employer.

13. (2) Notwithstanding sections 8 to 10, a family business may employ relatives in favour of non-relatives.

Exception: Inherent requirements, unjustifiable hardship, risk
14. Sections 8 to 10 shall not apply to the employment of a person with a disability if—

(a) taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of disability—

(i) would be unable to carry out the inherent requirements of the particular employment; or

(ii) would, in order to carry out those requirements, require services or facilities that are not required by persons without a disability and the provision of which would impose an unjustifiable hardship on the employer;

(b) because of the nature of the disability and the environment in which the person works or is to work or the nature of the work performed or to be performed, there is or likely to be—

(i) a risk that the person will injure others, and it is not reasonable in all the circumstances to take that risk; or

(ii) a substantial risk that the person will injure himself.