Workers' Rights - 2 | You and the Law

By Dr. William Para Riviere

June 17, 2014

Citizens of our country do not have a right in law to have a job. Neither the Constitution nor any ordinary legislation provides us with that right. If one or the other did give us that right, in light of the excessively large number of persons who cannot find a job our courts would be overloaded with cases of unemployed persons suing Government. What the law does provide us with is a right to have our jobs respected by employers and protected against abuse by them. But, first, we have to find a job. Such respect and protection is provided for under the Protection of Employment Act, Chap 89:02.

The first thing you should know about the Act is that it does not apply to certain categories of workers. These include (1) a person responsible for employing and dismissing workers and suspending them without pay; (2) a person who advises his/her employer as to the employment, dismissal or suspension of workers; (3) a person who makes or helps to make policy for his/her employer's business; (4) a person whose job requires him/her to have full knowledge of the financial position of the employer's business; (5) an employee who is the father, mother, husband, wife, brother, sister, son or daughter of his/her employer; (6) any person employed as a stevedore, longshoreman or lighterman; (7) the government or any employee of the government; and (8) an employee who has reached the normal retirement age in the business in which he/she is employed.

Now, here are some protections given to workers under the law:

•Where you have obtained paid employment, your employer has a right to terminate such employment, that is to say, to dismiss you, only according to the law.

•Your employer has a right to terminate your employment summarily, that is to say, immediately, if you have been found guilty of serious misconduct on the job, and your employer has no other reasonable choice but to dismiss you. He or she has a right to do so without giving you any notice, and without any money in place of notice, as is normally given.

•If your employer has found you to be guilty, not of serious misconduct but, merely of misconduct on the job, but this does not call for immediate dismissal, your employer is bound by law to warn you in writing. Such warning must describe the misconduct with which you are charged, and state what action your employer intends to take if you do not change your behavior.

•Your employer has the same rights where you are found to be not performing your work to his or her satisfaction. And he or she has the same obligation to give you a warning.

•Your employer has a right to dismiss you if you do not change your behaviour within six (6) months after a warning. He or she may also dismiss you if within three (3) months after warning you do not improve your work to your employer's satisfaction.

•Your employer has no right to consider your joining a trade union to be serious misconduct or unsatisfactory performance. Or, if you attend union activities after work or during work hours, with your employer's consent. Or, if you file a complaint against your employer for breaking any law. Or, if you take part in any such legal proceedings against your employer. Or, if you belong to a particular race, colour, class, nationality, sex or marital status, which your employer does not like. Or, if you hold a religious or political opinion that is distasteful to him/her. Or, if, because of religious worship, you do not come to work on Saturdays or Sundays.

•If your employer decides to reduce the workforce, he/she has a right to terminate your employment. But he or she may do so only where any such reduction has been caused by factors such as (a) greater use of modern technology and methods, (b) decrease in the size of the business operations, (c) sale of part or all of the business, (d) a lesser need for workers, as compared with machines or equipment, (e) mechanical breakdown or shortage of materials, and (f) unfavourable economic conditions.

•Where your employer deliberately sells a part or the whole of his/her business only so as to prevent you from enjoying any of your rights under the Act, the new owner has no right to terminate your employment on the ground that he/she is reducing the workforce.

•Your employer has no right to reduce your hours of work without your consent.

•Your employer has no right to suspend you without pay except for continued serious misconduct or unsatisfactory performance after you have been given a warning in writing.

•Your employer has no right to lay you off except for serious misconduct, unsatisfactory performance or because of a reduction of his/her workforce.

•Where you are laid off, or your employment is terminated due to a reduction of the workforce, and your employer intends within six (6) months after the loss of your job to employ a person to do the same work which you did, he/she must give you preference over other applicants for that job.

•If your employer intends to terminate your employment, he/she must give you notice in writing, stating when your employment will cease and why. If you are paid monthly, you must be given one (1) month's notice if you have been on the job for less than ten (10) years, and two (2) months' notice if you have been employed for ten (10) years or more. But where you are paid, say, weekly or fortnightly, the period of notice must be (1) one week if you have been on the job for less than two (2) years, four (4) weeks if you have been employed for more than five (5) years, and two (2) weeks if you have been on the job between two (2) and five (5) years.

•Even though your employer does not have a good reason under the Act to terminate your employment, you can still lose your job if your employer seeks permission from the Authorities to do so, and the authorities grant his/her request.

•After your employer has given you notice of termination of employment, he/she must give you a reasonable amount of time off from work, if you so request, to look for another job.

•If you intend to terminate your employment of your own accord, you must give your employer notice in writing. But where your employer has been guilty of serious misconduct towards you, and leaving the job is the only reasonable thing to do, you have a right to leave the job without serving notice on your employer. In the language of the law that is called "constructive dismissal".

These are some of the rights and protections guaranteed by the Protection of Employment Act, Chap.89:02. If your employer infringes, that is to say denies you, any of these rights and protections you are entitled to bring an action against him or her in court. As your lawyer will tell you, such an action in the case of denial of a right provided by statutes will be for unlawful dismissal. That is not the same thing as wrongful dismissal. Wrongful dismissal has to do with determination of a contract of employment entered into between your employer and you.

(Dr. William Para Riviere is an Attorney-at-Law)