Employment Contracts – Part 2

Continuing with some more components to consider when preparing an employment contract:

  • Leave entitlements – state the employee’s apportionment of leave – vacation/holiday, sickness or any other special leave e.g. study leave, bereavement leave etc. Include the conditions for each type of leave and the method of calculation of the employee’s pay during these leave periods (or reference the necessary legislation and/or policies where these calculations and other leave details can be found).

 

  • Employee Training & Development – State if the employee is entitled to receive any training from the employer. Also indicate if the employee is required to complete any part of that training entitlement, or any other training, that may have to be employee-funded.

 

  • Rules, disciplinary procedures, grievance process – Reference applicable Employee Handbook, Workplace/HR policies, that contain this information, that the employee is required to follow. State whether copies will be given to the employee or where these can be accessed by the employee.

 

  • Conditions of employment relating to trade union membership (if applicable) – In T&T, even if the workplace environment is not unionised, employees can join certain unions to enjoy the relevant benefits and seek representation for needed legal redress.

 

  • Job Description – Reference and include the employee’s job description as an Appendix to the agreement. The exercise of drafting and preparing job descriptions should be given considered thought, time and attention. This should really not just be the copy from the advert used for print or social media.

 

  • Performance appraisals – Provide for performance appraisals and the performance standards required of the employee in the employment contract. Having a properly drafted employee job description helps with this clause and with the conduct of performance appraisals, on a whole, as the employee’s duties and responsibilities and the metrics would have been made clear from upfront.

 

  • Collective agreements – If applicable, state if there are any collective agreements in force, who are the parties and where these agreements can be accessed by the employee.

 

  • Confidentiality – Non-disclosure provisions can be included in the contract. While the Data Protection Act is not fully proclaimed in Trinidad & Tobago, organisations may want to consider adopting and practicing the international standards of data privacy and protection in its operations. The General Data Protection Regulation (“GDPR”) or California Consumer Privacy Act (“CCPA”) standards may be helpful here.  The employer will have to decide whether a policy a privacy standard or data protection policy will be operational in its business and state where this can be found for the employee’s perusal and information.

 

  • Non-compete, non-solicitation non-dealing clauses (where applicable) – The period of restraint for these clauses should be reasonable because many of these clauses may not pass muster if they are contested in court.

 

Consider the nature of the job the employee will perform in the organisation’s business, where the employee will be performing their role, will the employee be heavily involved with the employer’s customers/clients and what period of restraint would be necessary in order to protect the employer’s legitimate business interests etc. These clauses should really not be included for all categories of workers or for jobs of a certain level. These clauses are restrictive covenants and they need to be drafted so that they are enforceable.

 

For more information see:

General Data Protection Regulation (GDPR) – Official Legal Text (gdpr-info.eu)

California Consumer Privacy Act (CCPA) | State of California – Department of Justice – Office of the Attorney General

and

https://tenorequelegalandconsulting.com/employment-contracts/

 

Judicial Review

This an avenue for the High Court to exercise its supervisory jurisdiction over the work and activities of public bodies/authorities, inferior tribunals etc. Judicial review cannot be pursued against decisions of private entities or against superior courts.

Objective

The intention is not for the High Court to substitute its opinion for that of the public body/authority instead; it is for the Court to judicially review the decision-making process of the particular public body/authority.  For example:

  • Where a public authority has made a clear and unambiguous promise that is devoid of any relevant qualification a legitimate expectation may arise; and a challenge can be raised in this instance.
  • A challenge can be raised against a decision as being substantively unfair if there was an erroneous impression caused by a mistake as to a relevant fact (for which the aggrieved wasn’t responsible); if this fact can be objectively established and it played a material part in the reasoning and decision making of the public authority.

In Trinidad and Tobago, the Judicial Review Act, 2000 (Act No 60 of 2000), the Civil Proceedings Rules, case law and any material legislation (which touches and concerns the relevant public body/authority under review) are instructive for judicial review matters.

Some of the fundamental common law grounds for judicial review are: illegality, irrationality and procedural impropriety (Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374 (HL)).

Process and role of the Court

Judicial review involves a two-stage process – an application for leave (or permission) which can be made without notice; and if leave is granted the judicial review claim can be made thereafter. The role of the Court at the leave stage of the proceedings is not to make any final findings of fact. Instead, it is to determine whether there are serious issues of law or fact to be tried.

On an application for leave the Court should, “make a preliminary or provisional assessment of the evidence and the relevant law and determine whether there are serious issues to be tried.” (Kublalsingh et al v Attorney General CA No. P142 of 2014). The Court has jurisdiction to grant interim relief for e.g. an injunction/conservatory order protecting property rights pending the determination of the claim for judicial review (Attorney General v Sumair Bansraj 38 WIR 286, 292 and 305).

Available relief

In Trinidad & Tobago, if the claim for judicial review is successful the Court may grant declarations, injunctions, damages (in certain circumstances) and such other orders, directions or writs it considers just and warranted in the circumstances.

For more information see:  The Judicial Review Act, 2000 (ttparliament.org) and for related information see: ⚖️Take it to the Court on time! ⚖️ – Tenoreque Legal and Consulting

 

Damages

Claimants often commence (or wish to commence) Court claims in contract or in tort. Damages are the compensation available for the Court to award to a Claimant who is successful at their claim.

Objective of a damages award

In tort claims, the purpose of an award of damages is to put a Claimant in the position as if the tort did not occur. For e.g. damages may be awarded in a negligence claim. In contract claims, an award of damages is meant to put a Claimant in the position as if the contract had been performed. For example damages may be awarded for a breach of employment contract.

Some types of damages

Damages may be – special, general, liquidated, unliquidated, exemplary, nominal etc. Provisions related to liquidated damages may commonly be negotiated and included in particular contracts. For some contracts (e.g. agreements for the sale of land); damages may not be a suitable remedy and the discretionary remedy of specific performance may be available to the aggrieved party.

Exemplary Damages

These damages are awarded to punish a Defendant and/or to compensate a Claimant for the harm done by the Defendant. These damages are not applicable to every claim which a Claimant wishes to bring in Court. Exemplary damages are generally awarded in certain (tort) claims for e.g. false imprisonment, malicious prosecution or assault and battery by an officer of the state etc.

An award of exemplary damages is directed at the oppressive, arbitrary or unconstitutional conduct of the wrongdoer. It is meant to condemn, denounce and deter and it should be proportional to the Defendant’s conduct.

In the past, in Trinidad & Tobago, there has been a “split award” of exemplary damages and there has even been the rare award of exemplary damages for breach of contract.

For related information see: ⚖️Take it to the Court on time! ⚖️ – Tenoreque Legal and Consulting

 

Employment Contracts – Part 1

Here are some useful components to consider when preparing employment contracts:

  • The parties i.e. state the proper names of the employer and employee and other relevant particulars for e.g. addresses of the parties.

 

  • Nature of the Employment Contract – state whether it’s a Fixed Term or Permanent Contract and that it is a Contract of Service (which differs from and is not to be confused with a Contract for Services).

 

  • The Term – If it is a fixed term contract, state the start or effective date of employment, duration of the employment term (and the contract end date). State whether the contract term is subject to renewal (upon review). If it’s a contract for permanent employment, state the start or effective date of employment.

 

  • State the employee’s job title, the department/division under which the employee’s job falls and possibly include the key reporting lines which concern the employee.

 

  • State the work location and working arrangements – For a geographically dispersed organisation, it may be useful to state which location the employee will be working from and also include that there may be the possibility for relocation to other branches. If Work-From-Home or a hybrid arrangement applies to the employee; you may want to state certain particulars in relation to this.

 

  • State the salary and any applicable benefits, allowances and perks. State the pay period and method of payment.

 

  • State the relevant statutory contributions that will be deducted from the employee’s remuneration. In Trinidad & Tobago the statutory deductions that are generally relevant to employees are Income Tax/Pay as You Earn – P.A.Y.E (above a certain income level), National Insurance and Health Surcharge.

 

Employers usually deduct/withhold the relevant statutory contributions that an employee is supposed to pay to the relevant statutory authorities and remits these on behalf of the employee. (An independent contractor or someone engaged via a contract for services would usually be responsible for the payment of the statutory deductions applicable to them. More on this in a subsequent post.)

 

An employee can monitor an employer’s remittance of national insurance contributions by requesting the employee’s Contribution Statement from the National Insurance Board. This is important to monitor as a certain number of national insurance contributions are important for a person to be able to enjoy certain benefits that the National Insurance Board of Trinidad & Tobago has to offer.

  • State any other deductions that would be made from the employee’s remuneration (due to the requirement of some employee contribution to the particular benefit) e.g. insurance, pension etc. State the relevant ratio or percentage of contribution that is applicable to the employee and the employer.

 

  • Normal hours of work and related break times e.g. time and length of lunch/ meal breaks or any other breaks that are allowed.

 

For more information see: On Line Request for Contribution Statement (nibtt.net)

or

https://tenorequelegalandconsulting.com/Employment Contract /

Pre-Action Protocol Letter

Whether it is described as a pre-action protocol letter, pre-action letter, demand letter, letter before action, letter of claim or letter before claim the purpose and content is generally the same.

 

Objective of the Pre-Action Protocol Letter 

Relevant disclosure is important for this letter because the objective of this correspondence is for parties to act in accordance with the overriding objective (in the Civil Proceedings Rules in Trinidad & Tobago (T&T)) by reasonably exchanging relevant information and documents; with a view to avoiding litigation.

 

Pre-Action Protocols

In T&T, pre-action letters are guided by Protocols laid down via a Practice Direction on Pre-Action Protocols issued pursuant to Part 4 of our Civil Proceedings Rules. In this Practice Direction, there are protocols for letters for different types of claims.

 

Considerations and components for Pre-Action Protocol Letter 

A Claimant’s Pre-action Letter should (among other things):

  • Be concise but comprehensive enough for the receiver to understand and investigate the claim.

(N.B. A pre-action letter for a defamation or administrative order may not be as brief as a pre-action letter for a simple road traffic accident.).

  • Enclose documents that are relevant to the claim (or documents that the proposed claimant intends to rely on.).
  • Request an acknowledgement and require a response usually within a month (though this period can be shortened based on the circumstances of the case. However, the receiver should be alerted if the usual period is being shortened).
  • Indicate whether legal proceedings will be initiated if there is no response within the prescribed time.
  • State whether the sender wishes to enter into mediation or any other form of alternative dispute resolution.
  • Request the receiver’s disclosure of relevant documents that the sender wishes to see.
  • Draw the receiver’s attention to the Court’s power to impose sanctions for failure to comply with the Practice Direction (should the matter proceed to Court.).

This letter should be personally served or served via pre-paid post (or courier) and it will be deemed to have been received on the 14th day after posting.

Different appendices in this Practice Direction provide the framework for pre-action letters for various claims for e.g. claims for a specified sum of money, road traffic accidents, defamation and administrative orders.

 

Confidentiality of   the Pre-Action Protocol Letter

In T&T, it is not unusual to see certain pre-action letters somehow make their way into social or traditional media.  However, the veil of confidentiality must be maintained when it comes to (pre-action) correspondence that is issued “without prejudice’.

 

For more information see: The Judiciary of Trinidad and Tobago : Law Library : Practice Directions & Guides : Supreme Court : Under C.P.R. : Pre-Action Protocols (ttlawcourts.org) 

Jurisdiction

This has different meanings in the legal context.  Jurisdiction is an important consideration in (commercial) contracts and also when initiating court proceedings. The principle is also important in international law.

Jurisdiction (as in power/authority)

A court or tribunal must have the power/authority to hear or decide a case and give a particular order.

A tribunal or court hearing and determining a matter on its merits, must be competent to do so. (Halsbury’s Laws of England; Volume 12A (2015) paragraph 1612). Disputes must be brought before the proper court/tribunal with authority to hear the particular case and grant the required relief or orders; or objections to jurisdiction can be made before the start of a matter.  If a court lacks jurisdiction, its judgment and orders are of no legal consequence (Leacock v Griffith (2017) CCJ 1 (AJ).

A court’s/tribunal’s authority may be outlined in statute and it can arise in a monetary limit or other stipulations in relation to the matters that can be brought before it.

In Trinidad & Tobago (T&T), a Magistrate and the Magistrates’ Court are creatures of statute and they have to operate within those confines (see Sect. 6, Summary Courts Act).  In T&T, the Petty Civil Courts Act currently provides for a monetary limit of under $50,000, for a petty civil case to be brought before the Magistrates’ Court – Petty Civil Court. While civil claims above $50,000 have to be brought in the High Court.

Any power exercised outside that statutory power is unlawful (ex parte World Development Movement (1995) 1AER 611).  Additionally, “…an order made by a court of unlimited jurisdiction… must be obeyed unless or until it has been set aside by the court.” (Isaacs v Robertson PCA No. 2 of 1983).

Jurisdiction (as in country/territory)

Court disputes or alternative dispute resolution hearings must be conducted in the proper country/territory.

In contracts, parties include jurisdiction clauses so that in the event of litigation or dispute resolution; parties are clear as to where these proceedings must be initiated. The parties may even identify the tribunal or court depending on the nature of the dispute. If proceedings are brought in the wrong jurisdiction, a party may be able to invoke the principle of forum non conveniens (not the convenient forum).

Jurisdiction in international law

In international law jurisdiction is exercised on the grounds of a number of principles – territorial, nationality, protective, passive personality and universality principles.

Count all of the costs

Like there is a cost of doing business there is a cost to litigating.

The courthouse is not a place you just rush to “to get your pound of flesh”, “make the other party pay” or “make an example of the other party” without considering the cost of the entire exercise.

Costs have what may be considered to be a different meaning, in the court setting, for those who may be unfamiliar. They are generally not equivalent to the legal fees/expenses incurred by a particular party.

Costs may be fixed, prescribed, budgeted, assessed or wasted. The applicability and the approach to quantifying each of these is provided for in the Trinidad & Tobago Civil Proceedings Rules (CPR) or has been determined in various cases.

Traditionally, costs would follow the event i.e. the unsuccessful party would pay the successful party’s costs. But now, the Court has the discretion to determine who should pay costs. The Court can engage in issue-based analysis to determine where costs should fall by considering – the conduct of the parties, a party’s success on particular issues, settlement offers etc.

Our CPR also stipulates that a party may not recover costs except by order of the Court, CPR provision or via agreement between the parties. The Court may award:

  • No costs or parties bear their own costs
  • A particular amount with respect to another party’s costs
  • Costs in relation to a specific part of the proceedings
  • Costs from or until a particular date
In the more general sense of the word:

A phrase which is often used is, “The candle costs more than the funeral.” This occurs if the cost of bringing the action outstripped the amount of money a successful party actually recovered at the end of the matter.

This phrase is often used as a warning to litigants who sue without contemplating the cost of the exercise; and at the end of the matter they are sorely disappointed.

��� Litigation can be inevitable sometimes and it has its place. However, as a lot of litigation is a marathon; not a spirit, it may be prudent before initiating Court action to do a cost benefit analysis and possibly consider the opportunity cost and the time, energy and resources that need to be allocated for the duration of a court matter.

��� Corporates, high-profile persons and professionals consider whether there are any reputational costs? Is it worth it? Will a Gag Order or Sealing Order provide an adequate amount of protection from disclosure to prevent reputational harm?

Before taking it to Court, please properly count all of the costs!

 

For further information:

https://tenorequelegalandconsulting.com/take-it-to-the-court-on-time/

 

When can we sign? – The non est factum edition. ✒️

In a previous blog I shared about the importance of reading and understanding what you are signing; because a person is usually bound by their signature to a document (save and except in certain circumstances).

The essence of the principle of non est factum (it is not my deed) is that the person signing believed that the document that they signed had one character or effect where in fact its character or effect was quite different.

This principle (or plea) is not available to anyone who was content to sign without taking the trouble to try to find out the general effect of the document that they are signing (at the very least).

A document or Deed may be null, void and of no effect by reason of the party not knowing what they were signing. However, the elements of non est factum have to be proved.

For non est factum to succeed, the party must show that:

(a) he was under a disability

(b) the document which he had signed was fundamentally different from the document he thought he was signing; and

(c) he was not careless in that he had not failed to take proper precautions to ascertain the significance of the document he was signing – Lloyd’s Bank PLC v Waterhouse [1993] 2FLR 97

“Whenever a man of full age and understanding, who can read and write, signs a legal document which is put before him for signature–by which I mean a document which, it is apparent on the face of it, is intended to have legal consequences–then, if he does not take the trouble to read it but signs it as it is, relying on the word of another as to its character or contents or effect, he cannot be heard to say that it is not his document. By his conduct in signing it he has represented, to all those into whose hands it may come, that it is his document…” – Gallie v Lee and Another [1969] 1 All ER 1062 per Lord Denning at p.1072

“The plea (non est factum) cannot be available to anyone who was content to sign without taking the trouble to try to find out at least the general effect of the document… But the essence of the plea non est factum is that the person signing believed that the document he signed had one character or one effect whereas in fact its character or effect was quite different. He could not have such belief unless he had taken steps or been given information which gave him some grounds for his belief…” – Saunders v Anglia Building Society Limited [1970] 3 All ER 961, p. 961.

If the deed was not your deed at all:

  • You are not bound by the signature.
  • The document is a nullity.
  • No one can claim title under it, not even an innocent purchaser who bought on the faith of it, nor an innocent lender who lent their money on the faith of it. No matter that this innocent person acted in the utmost good faith, without notice of anything wrong, they take nothing by the document.

Gallie v Lee and Another [1969] 1 All ER 1062 per Lord Denning at pp. 1066 – 1067

 

For part one of  this topic: https://tenorequelegalandconsulting.com/when-can-we-sign/

⚖️ When can we sign? ⚖️

“When can we sign?”  is a  question that  has been asked of lawyers a million times over; because people can tend to be eager to rush to execute contracts, court documents, deeds, other documents etc.

But, did you really read and understand what is being said in the document – the fine print?

The other MAJOR question you should also be asking yourself, particularly in this time of heightened digital transacting and business – are you approaching execution safely and legally?

You may want to seriously consider and apply the following (which is not an exhaustive list):

��� Read and understand what you are signing. If you are unsure of the legal implications, seek legal counsel. (The principle of non est factum may not (always) be available. I will share more about that in another blog).

��� If Attorneys are not involved, at least make sure you execute safely and legally. Speak to experts who can guide you in this area if you are uncertain.

��� Guard your e-signature (particularly a basic electronic signature) with your life i.e. any scanned version, image or PDF of it. And this ought not to be in the custody of anyone other than you.

��� Do not copy and paste your e-signature into a MS Word document and then convert this MS Word document to a PDF. First convert the MS Word document to a PDF and then use the Fill and Sign option in Adobe to sign the document.

For part two of  of this topic:https://tenorequelegalandconsulting.com/when-can-we-sign-non-est-factum-edition/

⚖️Take it to the Court on time! ⚖️

Ascertaining the limitation period of a claim will determine whether a proposed claimant has a chance at bringing a claim; or if they are time barred altogether. It is important to take heed of and adhere to timelines for initiating court actions.

 

Limitation periods are provided for in limitation legislation (and/or in limitation related statutory provisions). While the Court has the power to override limitation periods based on its consideration of certain factors, one should make best efforts to take the matter to the Court on time!

 

Some examples of current limitation periods in Trinidad & Tobago

��� Simple contract – Action expires 4 years after the cause of action arose. [N/A to contract made by Deed].

 

��� Negligence, nuisance and other tort claims – Action expires 4 years after the cause of action arose.

 

��� Enforcement of Judgment – Action expires 12 years after the date of final judgment.

 

��� Enforcement of arbitrator’s award (under arbitration agreement) – Action expires after 4 years. [N/A to agreement made by Deed].

 

��� Workmen’s Compensation – Claim for the recovery to be made within 1 year from the occurrence of the accident (or, in case of death, from the time of death).

 

Where an adult workman receives compensation for injury by accident (arising at or in the course of employment) no action shall be brought against the employer for compensation independently of the Act after the expiration of 4 years from the date of the cause of action.

 

��� Judicial Review – Application to be made within 3 months from date the grounds for the application first arose.

 

��� Real Property Limitation – No person shall make an entry or distress, or bring an action to recover any land or rent, but within 16 years after the right of action accrued.

 

��� Remedies of Creditors – Judgments must be registered within 3 years from the date of the entry (and re-registered within 3 year intervals).

 

Further information can be found here: https://rgd.legalaffairs.gov.tt/Laws2/Alphabetical_List/lawspdfs/7.09.pdf