Almost every week the press reports on yet another government enterprise “reorganizing” or “restructuring” which translated into English means retrenchment. While the weekly, or almost daily retrenchments in the private sector do not make the headlines, or get reported to the Minister of Labour as the Retrenchment and Severance Benefits Act only requires employers who are retrenching five people at a time to do so, day by day one by one people are being laid off. Where it is a genuine case of jobs being redundant, there is no redress, providing the provisions in the Act are followed. Where cases end up in Court, however, is where there is no real redundancy and the “laying off” is changed to disciplinary action.
In Trinidad and Tobago, the Industrial Court has laid down specific guidelines to take into account where an employer is “exercising its disciplinary powers over an employee”. They are:
- The previous record of the employee
- The length of service of the employee
- Whether or not the offence was an isolated incident in the employment history of the employee
- Whether the offence was committed on the spur of the moment as a result of momentary aberration, due to strong emotional impulses or whether the offence was premeditated
- Whether the penalty imposed has created economic hardship for the employee in the light of his/her particular circumstances
- Evidence that the company rules of conduct, either written or posted have not been uniformly enforced, thus constituting a form of discrimination or condonation
- Circumstances negating intent, e.g. likelihood that the employee misunderstood the nature or intent or an order given to him and as a result disobeyed it
- The seriousness of the offence in terms of company policy and company obligation
- Any other circumstances which the Court should properly take into consideration e.g. failure of the employee to apologize and settle matters after being given an opportunity to do so
- Mitigating factors such as illness or personal domestic problems.
- TD Nos. 222 and 223 of 2004 OWTU v Courts (Trinidad) Limited, the Court cited Sharma CJ in Civil Appeal No. 83 of 2002 between Caribbean Development Company Limited v NUGFW.