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 circumstance