While employers can encourage their employees to take the COVID-19 vaccine, attorney Martin George says not rostering them to work could land them in the courthouse.
He was speaking on the controversial topic on CNC3’s The Morning Brew programme yesterday.
This comes as food businesses such as Prestige Holdings and Mario’s took a position that workers must be vaccinated to return to work.
While the Government has been sending messages and signals, George said it has not made a clear decision on whether they are going to make vaccination mandatory because it is not an easy decision.
He said, “And they know it is going to create mass reactions all over the country some in favour some against. It will have those who will file Constitutional Motions. It will have those who will file applications for Judicial Review. They will claim constitutional rights are being infringed so it’s a very, very touchy subject in terms of Government intervention to say that you are going to legislate to vaccinate. So I think that’s why you see the Government is basically stepping gingerly around the issue, of course, it’s sending its signal as to what it will like because you heard from the prime minister himself—vaccinate to operate. Basically, he is trying to signal to persons, hey listen you need to be vaccinated in order to be able to function.”
While employers have not stated that unvaccinated workers will be fired, he said they are pressuring workers by not rostering them for work and if they don’t work they will not be paid.
Geroge said employers use the Occupational Health and Safety Act as a basis for insisting that workers be vaccinated to ensure a safe working environment for workers.
Citing an Industrial Court case of the Communication Workers Union versus the National Training Academy, George said in that case it was held that the terms of employment cannot be changed and altered unilaterally in keeping with good industrial relations practices.
He said an employee can argue that it amounts to a fundamental change in his/her term of employment.
Therefore, he said employees who are not being given work because they are unvaccinated can seek redress at the court.
“And say listen my term of employment has been changed and therefore I am seeking redress because essentially I am fired because essentially this could amount to constructive dismissal. If I am put on leave, I have been rotated out of the roster on almost a permanent basis then effectively I have been constructively dismissed,” he added.
Weighing in on the issue Employers Consultative Association (ECA) Chief executive officer Stephanie Fingal said, “At this juncture there being no legislation in Trinidad and Tobago indicating a mandatory vaccination for employees then unless it is employees’ contract terms provide for such, then to do otherwise will be a difficulty for employers.”
Noting that employers have been reaching out to them, Fingal said they have been advising them to engage employees with a view to educate, inform, clarify, understand, acknowledge what might be their concerns.
“Because different people are reading different things and that presents a problem as you know so that if the challenge of education information, collaboration and dialogue, explanations are provided, we believe that encouragement is the way to go because when you insist you sometimes get resistance,” he said.
Fingal said they also advised that an Employee Assistance Programme councillor be provided for those employees who may have genuine fear all with a view to helping the employee understand the benefits of taking the vaccine.