New provisions to protect employees in Protection of Employment (Amendment) Act

Basseterre, St. Kitts, July 16th 2013 (CUOPM) – Amendments to the Protection of Employment Bill will make new provisions for the termination of employees by an employer.

According to a new section, an employer shall not terminate the employment of an employee without a valid and fair reason for such termination connected with the capacity or conduct of the employee, or with the operational requirements of the undertaking, establishment or service, pursuant to the provisions of sections 5C, 5D, 5I or 5J, and unless the notice requirements in section 7 are complied with.

Another new section will make it unfair and unlawful to terminate the employment of a person on the following grounds (a) trade union membership or participation in union activities outside working hours or, with the consent of the employer, during working hours; (b) seeking office as, or acting or having acted in the capacity of, a workers’ representative; (c) making a complaint or participating in proceedings against the employer involving alleged violation of any law or regulation or having recourse to competent administrative authorities; (d) participation or proposal participation in industrial action including a strike, which takes place in conformity with the provisions of this Code or any other labor relations law; (e) race, color, sex, religion, ethnic origin, nationality, political opinion or affiliation, disability or, except for purpose of retirement and restrictions on work and employment of young persons and children, age; (f) marital status, family responsibilities, pregnancy or absence from work during maternity leave as certified by a medical practitioner; (g) temporary absence from work due to illness or injury as certified in accordance with the provisions of this Act, provided that the employee informs the employer on the first day of absence and submits the certificate to his or her employer on or before the third day of absence;(h) absence from work due to compulsory military service or other civil obligation in accordance with law and (I) in exercise or proposed exercise of the right to remove himself or herself from a work situation which he or she reasonably believes presents an imminent or serious danger to life or health.

Under the sub-section, Constructive dismissal, (1) – An employee may terminate his or her employment contract without notice or with less notice than that to which the employer is entitled by any statutory provision or contractual term, where the employer’s conduct has made it unreasonable to expect the employee to continue the employment contract. (2) Where the employment contract is terminated by the employee pursuant to the provisions of subsection (1), the employee shall be deemed to have been unfairly dismissed by the employer for purposes of this Act.

Section 5E states that (1) – An employee who has been engaged for a specified term of employment of employment and who intends to quit his or her employment at the end of the specified term shall not be required to give advance notice of such intention unless the terms of his or her contract specify otherwise. (2) An employee, other than an employee mentioned in subsection (1), shall give advance notice to his or her employer of his or her intention to voluntarily quit the employment, which notice shall correspond to the periods of notice required of the employer specified in section 7 of this Act, and where the contract of employment is not in writing, the period of notice to be given by the employee shall not be less than two weeks.

(3) Where an employee gives notice in accordance with the provisions of subsection (2), the employer may require the employee to cease employment at the commencement of the period of notice and simultaneously pay the employee a sum equal to the wages and other remuneration, plus all other benefits that are due to the employee at the expiry of the required period of notice.

(4)Where an employee fails to give the employer notice as provided for by subsection (2), the employee shall be liable to pay to the employer an amount equal to a single time pay which the employee would have received had he or she worked for such part of the notice period which was not served.

(5) Where an employee is liable to make any payment pursuant to the provisions of subsection (4), the employer may deduct the amount payable from monies, if any, due to the employee from the employer.