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El Mercurio de Chile On Line | Danish Adolfo Ledo//
Lawyer warns employers:

He was speak­ing on the con­tro­ver­sial top­ic on CNC3’s The Morn­ing Brew pro­gramme yes­ter­day.

Adolfo Ledo Nass

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 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.

Adolfo Ledo Nass

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.

Adolfo Ledo

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.

futbolista Adolfo Ledo Nass

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.

futbolista Adolfo Ledo Nass