Navigating employment law in the Turks and Caicos can be a daunting task for any employer whilst doing business in the Islands. Employee rights, disciplinary procedures, and an employer’s obligations with respect to concerns like work permits, service charge, and sick leave are amongst a host of hot-button issues are quandaries employers routinely run into .
By publishing this entry guide to employment law for employers in the Turks and Caicos Islands, Griffiths & Partners aims to clarify some of the most frequently occurring questions, issues, and unforeseen obstacles that employers face in the course of running a business. This is no substitute for legal advice but will provide an employer with an entry into ensuring proper compliance with employment laws and understanding how to approach employment law issues as they arise.
1. What Laws Apply in the Turks and Caicos Islands (“TCI”)?
The Employment Ordinance of the TCI and the Employment Order (appended to the Ordinance) provides the regulatory framework for employment law within the Islands. Whilst the general principles of contract law derived from the English common law are often used to create employment contracts, terms of employment contained within employment contracts must comply with TCI employment law. In this vein, it is useful to know that the ground covered by the Employment Ordinance vs the Employment Order.
The Employment Ordinance provides the essential framework for:
- Written Particulars of Terms of Employment (Part II);
- Remuneration of Employees (Part III);
- Protection Against Unlawful Discrimination (Part IV);
- Termination of Employment (Part V); and
- Unfair Dismissal (Part VI).
The Employment Order provides the main framework for:
- Wages and Hours of Work (Part II); and
- Vacation Pay, Sick leave and Compassionate Leave.
Both the Employment Ordinance and the Employment Order are available to be read (but not downloaded or printed) on the Turks and Caicos Islands Government website at the following link:
2. Employment Contracts
While parties are otherwise free to agree terms of employment without regulatory inference, the Employment Ordinance does require a contract to:
- Identify the parties;
- Specify the date when the employment began; and
- Specify the date on which the employee’s period of continuous employment began.
The Employment Ordinance prescribes four types of employment contracts:
- A contract without reference to limit of time;
- A contract for a specified period of time;
- A contract for a specific task; or
- A contract for a probationary period of not more than three (3) months.
An employment contract must also contain particulars of the employment:
- The scale or rate of remuneration (or method of calculating remuneration);
- The intervals at which remuneration is paid (weekly, monthly or some other period);
- Terms and conditions relating to hours of work including terms and conditions relating to normal working hours;
- Holiday entitlement (including public holidays and holiday pay);
- Terms as to incapacity for work because of sickness or injury (including sick pay and a doctor’s sick note);
- Pensions and pension schemes;
- Length of notice an employee is required to give;
- Duties to be performed;
- Other agreed terms and conditions;
- Disciplinary rules specifying:
- To whom the employee can apply if dissatisfied with a disciplinary decision;
- To whom the employee many seek redress relating to a grievance
3. The Fundamental Terms and Conditions
Hours of Work
A contract of employment must specify the employee’s normal hours of work. The Employment Order specifies that the normal hours of work must not exceed 44 hours a week. Hours of work over this amount of time amount to overtime. Even though an employee may volunteer to work additional hours, they cannot volunteer to work 7 days per week because the Employment Order states that an employer shall give and an employee shall take a period of rest of 24 consecutive hours in each period of seven consecutive working days.
Remuneration – Minimum wage
The minimum wage is currently $6.25 (United States Dollars) and hour. This minimum wage does not apply to employees employed in the domestic service of their employer in their private household. It also does not apply to employees who are remunerated by the piece or by the task, and who are not subject to continuous supervision by their employer.
The Employment Ordinance states that where an employer requires an employee to work overtime and the employee agrees to do so, the employer shall pay the employee for the period worked overtime wages at the prescribed rates. An employee cannot be required to work on a public holiday unless they agree to do so (by either work on a public holiday being specified in the normal hours of work in the employee’s employment contract or by agreement).
The rates of overtime are prescribed as:
- 1½ times an employee’s basic wage generally; and
- Double their basic wage on public holidays.
It is good practice to specify in a contract of employment that work by an employee in excess of the normal 44 hours is voluntary and that any requirement by the employer to work overtime will only be made in writing. This is to avoid disputes about overtime and outstanding overtime pay.
The Employment Order specifies the entitlement of every employee (who has been in the continuous employment of the employer for a period of not less than 12 weeks) to vacation with pay. Every employee is entitled to 2 weeks for each completed year of employment and the employer shall pay the employee his/her basic wages for the duration of the vacation. Additionally, the employee is entitled to vacation with pay for public holidays.
Service Charge arises from the Service Charges (Hotels and Restaurants) Ordinance and is not salary wages. Service charge is required to be levied in respect of all-inclusive hotels and restaurants that are operated as part of an all-inclusive hotel. Service charge is at a minimum rate of 10% and the Ordinance requires that 100% of the total service charge is to be paid within 21 days of the end of each month to all employees (or a formula approved or prescribed by the Minister of Finance).
Sick Leave with Pay
Employees are statutorily entitled to 12 sick days with pay per year. If an employee’s illness extends beyond two (2) days, they must provide their employer with a doctor’s certificate.
Maternity leave is for a period of at least 14 weeks and may be extended by a period between the presumed date of confinement and the actual date of confinement. It may also be extended by up to 4 weeks in the case of complications arising from the pregnancy. There is no statutory entitlement to maternity leave with pay.
An employee is entitled to compassionate leave of three (3) days in the event of the death of the employee’s child, spouse, parent, foster parent, brother, sister, parent-in-law, grand-parent or co-habiting partner.
The Responsibility for paying a Work Permit fee for an employed person is that of the employer. Any term in a contract of employment that purports to make the employee responsible for the Work Permit fee payable is unlawful.
Employment disputes between an employer and an employee may be resolved internally, but are statutorily regulated by the Labour Board in the first instance of an employee complaint.
The Labour Board has the power to request statutorily required employment documents from the employer such as contracts, pay slips, communications, written warnings, and schedules of vacation days, but does not have the power to penalize an employer for breach of TCI employment law. That power lies with the Labour Tribunal which acts as a three-member paneled tribunal hearing claims for infractions such as unfair dismissal, unpaid wages, discrimination, and sexual harassment.
If you are an employer facing issues regarding an employment law dispute with respect to one or many of your employees, the attorneys at Griffiths and Partners can assist you. We have proven experience assisting employers navigating the complex and sometimes troublesome area of employment law and are ready to act during the preliminary stages of dispute resolution and additionally for representation before the Labour Board complaint. Contact us today for a consultation to discuss your matter.