Construction worker wants employment status explained

I’m a young Caymanian currently working with a construction company. After being employed for over a year now, I’ve yet to receive a formal contract stating my terms of employment. A few months after being employed, my supervisor stated emphatically that this company does not pay overtime, pension or holiday pay. What I want to know is under the law am I considered an ordinary employee that is entitled to all these benefits or am I considered what the law calls a “casual employee” (and can you explain that term better) because I’m in the construction industry where jobs are on a more project-to-project basis?

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Auntie’s answer: I will first address your question then talk about the issues of contract and benefits. A Department of Labour and Pensions official pointed to the Labour Law (2011 Revision) for the definition of casual employee as a “person who is employed upon an irregular or intermittent basis” compared to what you call an “ordinary” employee which means “any individual who enters into or works under or stands ready to enter into or work under a contract of employment with an employer whether the contract be oral or written, express or implied; and the term includes a person whose services have been interrupted by a suspension of work during a period of leave or temporary lay-off”.

I have to add, though, that the official emphasised more information is needed to clarify your situation and asked that you contact the department (945-8960) so they can determine your employment status.

Meanwhile, you have to look to the law when it comes to contractual requirements but these do not apply to casual employees, which is why it is important for you to sort out your work status. Under Section 6(10), it says, “Every employer who enters into a contract of employment with an employee other than a casual employee or a person employed as a household domestic shall, within ten working days of entering into such contract, furnish the employee with a written statement of his conditions of employment in accordance with subsection (2).

(2) The written statement referred to in subsection (1) shall state-

(a) the job title, a brief statement of the general responsibilities and duties of the employee and of any special requirements or conditions of the job;

(b) the regular hours of work, together with any particular terms or conditions relating to the hours of work;

(c) the rate of remuneration, or the method by which it may be calculated;

(d) the intervals at which remuneration is to be paid;

(e) in the case of employees whose pay is normally stated on some basis other than hourly, the hourly equivalent save that in the case of persons remunerated wholly or in part by commission the rate of commission should be stated;

(f) the period of employment, if other than indefinite;

(g) the period of probation, if any;

(h) the employee’s holiday entitlement or the method by which it may be calculated;

(i) the employee’s entitlement to sick leave; and

(j) the length of notice which the employee is obliged to give and is entitled to receive to terminate the contract of employment.

The law also says that if the employer changes the benefits he/she has to provide an amended statement to the employee, and commits an offence if that is not forthcoming within seven days of the worker requesting it.

Referring to that section, the official said, “Therefore, if an employee requests a statement of working conditions in writing and this is not provided by the employer, the worker may make a report to the Department of Labour and Pensions.”

Another important legal distinction between a casual labourer and a regular employee when it comes to benefits is that vacation, public holiday, sick or maternity leave, do not apply to the former. You can also read about the rules for pay for public holidays (Section 16) and overtime (Section 25) for employees.

To try to be as comprehensive as possible, the official also suggested you check Section 25 the National Pensions Law (2012 Revision) for criteria for eligibility for membership of a pension plan.

Considering you have been with the company for a year and are not receiving any discernible benefits, I think it is vital that you follow the suggestion of the labour official and contact the department. I would do it as soon as possible.

Tags: Casual employee, Department of Labour and Pensions

Category: Ask Auntie