Cather­ine Ram­nar­ine

An em­ploy­ment con­tract is a legal­ly bind­ing agree­ment be­tween an em­ploy­er and an em­ploy­ee that out­lines the terms and con­di­tions of em­ploy­ment. There is no statu­to­ry re­quire­ment in T&T for an em­ploy­ment con­tract to be in writ­ing. There are al­so no re­quire­ments gov­ern­ing the form of the em­ploy­ment con­tract or the terms that must be in­clud­ed. That said, from a prac­ti­cal per­spec­tive, hav­ing a writ­ten em­ploy­ment con­tract en­sures that both the em­ploy­er and em­ploy­ee clear­ly un­der­stand their re­spec­tive rights and oblig­a­tions. Care­ful con­sid­er­a­tion should be giv­en to the terms of the em­ploy­ment con­tract as it pro­vides an op­por­tu­ni­ty to clar­i­fy many im­por­tant mat­ters.

An em­ploy­ment con­tract should typ­i­cal­ly in­clude and/or ad­dress the fol­low­ing:

• The le­gal name of the em­ploy­er and the em­ploy­ee;

• The du­ra­tion of the con­tract. Will it be for an in­def­i­nite pe­ri­od, or on­ly short term? If it is on­ly short term, is it tied to the com­ple­tion of a par­tic­u­lar project, or a fixed pe­ri­od of time?

• The em­ploy­ee’s job ti­tle;

• The em­ploy­ee’s du­ties and re­spon­si­bil­i­ties. This can be set out in the body of the em­ploy­ment con­tract it­self, or in a sep­a­rate de­tailed job de­scrip­tion that is ref­er­enced and/or at­tached to the em­ploy­ment con­tract. It may al­so be use­ful to set out who the em­ploy­ee will be ex­pect­ed to re­port to;

Whether em­ploy­ment is sub­ject to a pro­ba­tion­ary pe­ri­od. If so, how long will that pe­ri­od be? Will the em­ploy­er have the right to ex­tend the pro­ba­tion­ary pe­ri­od?

The em­ploy­ee’s nor­mal hours of work, whether they will be ex­pect­ed to work out­side of those hours and whether or not they will be en­ti­tled to re­ceive over­time pay for work out­side of their nor­mal work­ing hours.

In T&T, em­ploy­ees earn­ing more than 1.5 times the na­tion­al min­i­mum wage are not en­ti­tled to over­time pay un­less this is ex­press­ly pre­scribed un­der their em­ploy­ment con­tract or, where ap­plic­a­ble, a col­lec­tive agree­ment;

The em­ploy­ee’s nor­mal place of work. Where the em­ploy­ee may be re­quired to work in dif­fer­ent lo­ca­tions in T&T or to trav­el abroad as part of their du­ties and re­spon­si­bil­i­ties, this should be set out in the em­ploy­ment con­tract. Where the em­ploy­er al­lows work­ing from home, it may be use­ful to set out the re­quire­ments for do­ing so in a sep­a­rate pol­i­cy or guide­line, which can be ref­er­enced in the em­ploy­ment con­tract;

• The em­ploy­ees’ re­mu­ner­a­tion pack­age in­clud­ing their base salary (which should be ex­pressed to be sub­ject to ap­plic­a­ble tax­es and statu­to­ry de­duc­tions) as well as any ap­plic­a­ble ben­e­fits and bonus­es:

• Side Ac­tiv­i­ties: As a gen­er­al prin­ci­ple, an em­ploy­ee is pro­hib­it­ed from act­ing in a man­ner that is in­con­sis­tent with his du­ties or func­tions, or which cre­ates a con­flict of in­ter­est. As such, an em­ploy­er can valid­ly pro­hib­it an em­ploy­ee from do­ing ‘out­side work’ dur­ing his work­ing hours or from do­ing work in his spare time which com­petes or con­flicts with the em­ploy­er’s in­ter­ests.

• Sick Leave: There are, save for cer­tain in­dus­tries in re­spect of which spe­cif­ic pro­vi­sion is made un­der min­i­mum wages leg­is­la­tion, no statu­to­ry pro­vi­sions gov­ern­ing sick leave for pri­vate sec­tor em­ploy­ees in T&T. As such, it is use­ful for the em­ploy­ment con­tract to ex­press­ly set out how many paid sick days the em­ploy­ee will be en­ti­tled to per year, as well as oth­er re­lat­ed terms such as whether and/or in what cir­cum­stances the em­ploy­ee will be re­quired to sub­mit med­ical sick leave cer­tifi­cates and whether the em­ploy­ee will be re­quired to no­ti­fy the em­ploy­ee of their ab­sence by any par­tic­u­lar time. As a gen­er­al rule sick leave does not “roll over” if un­used, but to avoid any con­fu­sion or mis­un­der­stand­ing it may be use­ful to ex­press­ly set this out in the em­ploy­ment con­tract.

• Va­ca­tion Leave: There are, save for cer­tain in­dus­tries in re­spect of which spe­cif­ic pro­vi­sion is made un­der min­i­mum wages leg­is­la­tion, no statu­to­ry pro­vi­sions gov­ern­ing va­ca­tion leave for pri­vate sec­tor em­ploy­ees in T&T. As such, it is use­ful for the em­ploy­ment con­tract to ex­press­ly set out how many paid va­ca­tion days the em­ploy­ee will be en­ti­tled to per year, as well as oth­er re­lat­ed terms such as el­i­gi­bil­i­ty re­quire­ments (it is typ­i­cal for em­ploy­ees to be­come en­ti­tled to va­ca­tion leave on­ly af­ter com­plet­ing an agreed pe­ri­od of ser­vice, usu­al­ly one year) and whether and/or to what ex­tent un­used va­ca­tion will be al­lowed to “roll over” or must be utilised in the year in which the en­ti­tle­ment aris­es.

• Ter­mi­na­tion and Res­ig­na­tion: As a gen­er­al rule, ter­mi­na­tion “at will” is not recog­nised in Trinidad and To­ba­go. The em­ploy­ment con­tract can (and should) in­clude a clause specif­i­cal­ly ad­dress­ing ter­mi­na­tion, in­clud­ing ter­mi­na­tion by no­tice and ter­mi­na­tion for cause. How­ev­er, it should be borne in mind that these con­trac­tu­al pro­vi­sions will not be con­clu­sive. Ter­mi­na­tion will al­so be sub­ject to the re­quire­ments of the com­mon law and good in­dus­tri­al re­la­tions prac­tice.

• Any ap­plic­a­ble com­pa­ny poli­cies. The em­ploy­er should al­so en­sure that the em­ploy­ee is pro­vid­ed with copies of these poli­cies or a re­li­able way of ac­cess­ing them elec­tron­i­cal­ly;

• The em­ploy­ee’s du­ty of con­fi­den­tial­i­ty.

• Where ap­plic­a­ble, non-so­lic­i­ta­tion and/or non-com­pete claus­es. Note that where those claus­es are ex­pressed to ex­tend af­ter em­ploy­ment ceas­es, they may be con­sid­ered void as un­law­ful re­straints of trade un­less (i) the em­ploy­er has le­git­i­mate busi­ness in­ter­ests to pro­tect and (ii) the ac­tiv­i­ties pro­hib­it­ed are no wider than nec­es­sary to pro­tect the le­git­i­mate busi­ness in­ter­est; and

• Any oth­er mat­ters rel­e­vant to em­ploy­ment with that par­tic­u­lar em­ploy­er.

The em­ploy­er and em­ploy­ee are gen­er­al­ly free to con­tract at will and may ne­go­ti­ate and agree on the terms of the em­ploy­ment con­tract.

How­ev­er, it is im­por­tant to note that com­mon law, stat­ue and the re­quire­ments of “good in­dus­tri­al re­la­tions prac­tice” im­pose du­ties, oblig­a­tions and re­quire­ments on em­ploy­ers in ad­di­tion to those that may be ex­press­ly in­clud­ed in the em­ploy­ment con­tract.

It is im­por­tant for em­ploy­ers to be aware of these du­ties, oblig­a­tions and re­quire­ments, as, even where an em­ploy­er acts in ac­cor­dance with the ex­press pro­vi­sions of the em­ploy­ment con­tract, its ac­tions may be open to chal­lenge on the grounds that it has breached same.

Out­lin­ing all of these re­quire­ments is be­yond the scope of this Ar­ti­cle. How­ev­er, for more in­for­ma­tion see our pre­vi­ous ar­ti­cle on em­ploy­ment law FAQs pub­lished in the Sep­tem­ber 4, 2023 edi­tion of this news­pa­per.