The ABUSE & the PROPER USE of WORKER i.a.w. the INDUSTRIAL RELATIONS ACT

INTRODUCTION: This Is The Most Vexatious, Contentious And Suspicious Area Within The Field Of Industrial Relations

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FOR THE PURPOSES OF THIS ARTICLE, I will focus on Section 2 (3) (e) of the Industrial Relations Act, Chapter 88:01, as amended, which deals with inclusion or exclusion of certain members of management under the definition of what a worker is and by extension whether such an employee is entitled to industrial relations rights under the status of being a worker. Employees can be persons who perform non-managerial duties without any policy making responsibilities. Employees can also be persons with managerial duties of a technical nature but without any policy making responsibilities. Finally, employees also include persons whose duties are essentially strategic in nature and such employees are deemed to be directly connected with the policy making of the company.

The law prevents those employees with policy making responsibilities from accessing the Dispute Procedure of the Industrial Relations Act including the conciliation facilities offered at the Ministry of Labour and the Industrial Court and the arbitration facility available at the Industrial Court. Consequently, the development of the law in this area of the Industrial Relations within Trinidad and Tobago is arguably the most vexatious, contentious and suspicious because of the following perspectives:

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A.????????????? From a trade union’s point of view, this area is quite vexatious because whenever an employer raises the question whether the particular employee has worker status in accordance with the provisions of the Industrial Relations Act, Chapter 88:01, as amended, it appears to the trade union that it is merely another attempt by the employer to unjustifiably delay the process of the dispute procedure because most of the times when this challenge is made the employers never supply relevant documents to justify the claim.

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B.????????????? From the point of views of the Industrial Court, the Court of Appeal and the High Court, such judicial challenges are quite contentious because the Courts have not been provided with any straight-forward statutory criteria to determine whether an employee possesses or does not possess the status of a worker under the provisions of the Industrial Relations Act, and due to the absence of such criteria the above-mentioned Courts have to provide interpretations which may be exposing those Courts to frequent challenges at the higher Courts. There is also the critical issue of unwarranted delays which may be deemed to be an abuse of the process and by extension the bringing of the Labour Jurisdiction system of Trinidad and Tobago into disrepute.

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C.????????????? From the point of view of the trade unions and the employers, there is a genuine feeling about suspicion when a matter of worker status is being processed at the Registration Recognition and Certification Board (Hereinafter referred to as “the RRCB” or “the Board”) because, for most of its existence from 1972 until today (September 2024), the RRCB used a meeting procedure called “Closed Hearings” which required them to meet one side without the presence of the other side and without the right of one side to cross-examine the other side which brings into the question whether there is a built-in violation of the principles of natural justice.

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D.????????????? From the point of view of the employee, he may see all the delays as collusion between the union and the employer to extend the amount of time he has to pay union fees even if he does not have the worker status in accordance with the Industrial Relations Act, because if it is determined, after many years, that he is not a worker, the trade union dues or fees would not be reimbursed. ?

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E. From the point of view of the RRCB, it is contentious because they have to look outside of the statutory provisions when compiling evidence since the statute merely states policy maker but it does not capture the manifestations of a policy maker and it has now become even more challenging with the usage of the internet facilities such as emails and websites in order for a company to establish its policies.

THE CHRONOLOGICAL APPROACH MAY BE THE BEST APPROACH FOR ME TO PRESENT THIS TOPIC

I have chosen this approach because we have to move through statutory provisions and then through many “paradigm shifts” dealing with the interpretations from the courts. As per usual, I will use landmark judgments because these are the only documents which are available to all advocates who appear at the Ministry of Labour and at the Industrial Court. Within these judgments are contained the principles and practices on one hand and the enforcement of the labour laws on the other hand.

THE STATUTORY LEGISLATIVE FRAMEWORK DEALING WITH WORKER IN ACCORDANCE WITH SECTION 2 (3) (E) OF THE INDUSTRIAL RELATIONS ACT

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A.????????????? Section 2 (3) (e) of the Industrial Relations Act, Chapter 88:01, as amended:

“For the purposes of this Act, no person shall be regarded as a worker, if he is –

a person who, in the opinion of the Board –

(i)????????? is responsible for the formulation of policy in any undertaking or business or the effective control of the whole or any department of any undertaking or business; or

(ii)??????? has an effective voice in the formulation of policy in any undertaking or business;” (Emphasis by me)

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B.????????????? Section 2 of the Retrenchment and Severance Benefits Act, Act No. 32 of 1985:

“worker” means a worker within the meaning of the Industrial relations Act.

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C.????????????? Within this article and also for all matters dealing with industrial relations in Trinidad and Tobago, we are bounded by the statutory definition provided by Section 2 (1) of the Industrial Relations Act, Chapter 88:01, which is reproduced here for ease of reference:

“trade dispute” or “dispute”, subject to subsection (2), means any dispute between an employer and workers of that employer or a trade union on behalf of such workers, connected with the dismissal, employment, non-employment, suspension from employment, refusal to employ, re-employment or reinstatement of any such workers, including a dispute connected with the terms and conditions of the employment or labour of any such workers, and the expression also includes a dispute between workers and workers or trade unions on their behalf as to the representation of a worker (not being a question or difference as to certification of recognition under Part III);” (Emphasis by me)

D.????????????? In view of the statutory references above, it should come as no surprise that in TRADE DISPUTE NO. 254 OF 2014 between National Union of Government and Federated Workers (the Union) and Crews Inn Hotel and Yachting Centre (the Employer), delivered on July 29th 2015, the Industrial Court reiterated that a union does not have any locus standi in the pursuit of a trade dispute if it has no aggrieved worker on whose behalf a dispute would normally be pursued. The following excerpt from that judgment is instructive in this regard:

(Page 12)

“37. ? In the PTSC case, the dispute had already been referred to the Court. In that case two employees and members of the Union were suspended for three months and demoted for gross negligence in the performance of their duties. They both resigned from the Union and indicated that they did not want the Union to pursue their case. One of the workers subsequently withdrew his resignation from the Union and indicated that he wanted the Union to pursue his case. The Court’s decision in that case hinged on the fact that the worker withdrew the dispute with his eyes wide open and there was no reason to revive the case. In those circumstances the Union had no locus standi to continue to agitate on behalf of a person who was no longer aggrieved.” (Emphasis by me)

LANDMARK JUDGMENTS TO READ IN ORDER TO GRASP THE MEANING OF “WORKER” IN ACCORDANCE WITH THE PROVISIONS OF THE INDUSTRIAL RELATIONS ACT

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1.?????? In TRADE DISPUTE NO. 15 OF 1990, between Managers and Supervisors Association of Trinidad and Tobago (the Union) and Fox International (the Employer), delivered on March 25th 1991, the Industrial Court emphatically declared that the speedy determination of trade disputes is required under the principles and practices of good industrial relations as will be revealed within the following self-explanatory quotation from that judgment:

“The Court is vested with the responsibility inter alia to

“expeditiously hear, inquire into and investigate every dispute and all matters affecting the merits of such disputes before it …” (our emphasis) [s. 17]

This requirement of the Act is founded upon the principles of good industrial relations practice. One of the main purposes of the Act, as stated in its long title, is

“the stabilization, improvement and promotion of industrial relations.”

The principles of good industrial relations practice require that trade disputes should be speedily determined and not be allowed to fester. The entire framework of the Act is geared to the expeditious determination of trade disputes. A party who is given an opportunity to have his case heard by the Court must, therefore, avail himself of that opportunity by arriving in time on the appointed day for the hearing of his case. The Court cannot sit and wait for parties to arrive at their leisure. It is the duty and obligation of all parties before the Court to arrive in good time before the time fixed for the convening of the Court. These times have been fixed for a very long time at 9.00 o’clock, in the forenoon and 2.00 o’clock on the afternoon although sometimes other times are fixed with prior notice to and / or agreement of the parties. It is well known that only one trade dispute or other matter is fixed for hearing at each session of the Court. The absence of a party or his representative at an appointed session, or his failure to arrive in time, causes delay and inconvenience to the other party and to the Court, which has to grapple with a long list of pending cases to which daily additions are made. It must be remembered that this Court is maintained at great public expense and it is, in our opinion, in the interest of taxpayers of this country that its resources should be efficiently used. A party who takes the Court for granted and fails to appear, or who does not appear on time, on the appointed date and time of hearing runs the risk of having his matter struck out of the list. This Court has been very lenient in the past in these matters but in view of the long list of pending cases before it in which dates of hearing cannot be allocated to so many of them because the lists are filled, this Court cannot afford to continue such leniency. The Court has been criticized for “its delays” but what is not said in the Court’s defence is that such delays have arisen mostly by reason of dilatory tactics and the inertia of many of the parties who came before it.” (Emphasis by me)

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2.?????? The Court of Appeal of Trinidad and Tobago also endorses the view that the timely processing of trade disputes is essential for the place of employment as is exemplified within the following quotation from Cv.A No. 247 of 1998, in the Court of Appeal between Steel Workers Union of Trinidad and Tobago (the Union / Appellant) and Caribbean Ispat Limited (the Company / Respondent), delivered on April 30th 2001:

(Page 16)

“Before allowing this appeal, I wish to point out that the instant case classically exemplifies the mischief that can arise when the Minister, either through neglect or bad administration, has failed to issue a certificate of an unresolved dispute timeously.

In many cases expedition is necessary. Indeed the whole purpose of the Act is to ensure speed. It is therefore, imperative that all parties must move with alacrity. Matters should not be held up by the Ministers. Access must be swift and unimpeded. I have been told by Mr. Mendes, that there are many cases in which expedition is necessary, are held back because of the absence of the certificate by the Minister and the approach taken by the Court insisting that a precondition to jurisdiction is the existence of the certificate of unresolved dispute. In view of this judgment, hopefully this will now become history. The appeal is accordingly allowed. No order as to costs.” (Emphasis by me)

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3.?????? From the date of the promulgation of the Industrial Relations Act, Chapter 88:01, in 1972, until the mid-1990s, there have been many contentious views over whether the responsibility to determine who is a worker for purposes of being able to use the Dispute Procedure of the Industrial Relations Act should reside solely with the Board or could be shared with the Industrial Court.? Consequently, it should come as no surprise that these conflicting views would have ended up at the Court of Appeal in order for a final position to declare, once and for all, what should be the correct interpretation on which official entity should actually be solely responsible for the delivery of a final position on whether an employee is in fact a worker or not for the purposes of using the Dispute Procedure. Consequently, the contentious topic was processed at the Court of Appeal for the first time under CvA 183 and 184 of 1994 (Consolidated), in the Court of Appeal between The Registration Recognition and Certification Board (Appellant) and Bank Employees Union (Respondent), delivered 30th September, 1998. Accordingly, the following excerpts from this landmark judgment will be quite self-explanatory on the final position which was declared and adopted by the Court of Appeal, from that day until the publishing of this article on October 8th 2024:

Excerpt #1 - (Pages 2 to 3)

“… The Minister, by letter, referred two questions for the determination of the Registration, Recognition and Certification Board (the Board) namely whether Mohammed (a) was a worker within the meaning of the Act; and (b) as a Board Appointed Official whether he was a member of the bargaining unit for which the Union is the recognized majority union. That referral was made under sec. 23 (1) (f) of the Act that reads thus –

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23 (1) ??? the Board shall be charged with responsibility for –

(f) such other matters as are referred or assigned to it by the Minister or under this or any written law”.

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Even though sec. 23 (1) (a-e) of the Act set out the specific duties of the Board sub section (f) provides that, in addition to those duties, the Board shall be charged with responsibility for determining other matters under the Act. Such other matters would include that contained in sec. 2 (3) (e) of the Act that reads thus –

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“2 (3)?????????????? For the purposes of this Act, no person shall be regarded as a worker, if he is –

(e) ???????? a person who, in the opinion of the Board –

(i) is responsible for the formulation of policy in any undertaking or business or the effective control of the whole or any department of any undertaking or business; or

?(ii)????????? has an effective voice in the formulation of policy in any undertaking or business”.

The Board is, therefore, the sole authority under the Act charged with the responsibility of determining whether an employee is a worker under the provisions of the Act.” (Emphasis by me)

Excerpt # 2 - (Pages 9 to 10)

“… The Act does not provide that the manner of the appointment is a criterion that the Board has to take into account in determining whether the person is a worker or not. Whilst the duty is placed on the Board to make such a determination the person and the procedure for bringing such a question before the Board is not spelled out in the Act. It is, therefore, open to any one (sic) who can raise such a question before the Board to approach the Board in any manner in which the Board can be approached. The Minister is not excluded by the Act from raising such a question with the Board. Therefore, in my opinion, it is open to the Board to entertain an application from the Minister under sec. 23 (1) (f) of the Act to determine whether a person is a worker within the meaning of the Act or not. The Board, therefore, would have jurisdiction at any time to determine such referral from the Minister. There is, therefore, no merit in the objection taken.” (Emphasis by me)

4.?????? Also contained with CvA 183 and 184 of 1994 (Consolidated) was the sagacious declaration that the duties which are being performed by the employee will be more salient in determining whether the employee is a worker than the question on who employed the employee or his title. In this regard, the following excerpt will be quite instructive: ?

(Page 9)

“… When the Board determined the issue in 1975 it made a very careful examination of many matters that would have affected its judgment on each job that the Bank alleged ought to have been excluded from the bargaining unit. Several questions were raised by the Board and answers were supplied by the Bank before the determination was made. Each job was very carefully analyzed and the Board then determined that the jobs, the holders of which were Board Appointed Officials (except trust officers) were to be excluded. It was not, therefore, that Board Appointed Officials were to be excluded. It is jobs or posts that are either included in or excluded from the bargaining unit. Therefore, a job or post created for the first time after that determination was made, the holder of which being a Board Appointed Official is not to be excluded merely because the holder is a Board Appointed Official but rather is to be excluded from or included in the bargaining unit depending on the duties and functions the job entails. To be excluded the Board must be satisfied that the holder is responsible for the formulation of policy in any undertaking or business or the effective control of the whole or any department of any undertaking or business or has an effective voice in the formulation of policy in any undertaking or business (Sec. 2 (3) (e) of the Act). The Act does not provide that the manner of appointment is a criterion that the Board has to take into account in determining whether the person is a worker or not.” (Emphasis by me)

5.?????? Unexpectedly, the Court of Appeal was resorted to again in less than five (5) years after it had delivered the previous judgment mentioned above because the Industrial Court had once again adopted a position that it had the authorization to deal with whether an aggrieved employee was indeed a worker under the Industrial Relations Act, when it was called upon to deal with Trade Dispute No. 351 of 1997, between Association of Technical and Supervisory Staff (the Union) and Caroni (1975) Limited (the Company), which was delivered on June 28th 1999.?

6.?????? The Court of Appeal’s response is contained within CvA No. 87 of 1999, between Caroni (1975) Limited (the Appellant) and Association of Technical and Supervisory Staff (the Respondent), which was delivered on July 17th 2002. The following quotation will be instructive and self-explanatory:

(Pages 13 to 16)

“The misconception that the Court could decide whether a person was excluded from the definition of “worker” under paragraph (e) may have arisen because of the way in which “worker” was defined under the now repealed Industrial Stabilisation Act No. 8 of 1965. There was no provision for reference to the Board for the determination of any aspect of the question of who was a worker. In fact that Act made no provision for a Recognition Registration and Certification Board (sic). Under its provisions, the Minister determined claims for recognition, and if his findings were not accepted then he referred the matter to the Court. (See section 3).

It used therefore to be the function of the Court to determine whether an employee fell within the definition of “worker”. The case of Electric Ice Co. Ltd. v Federated Workers’ Trade Union 12 WIR 362 illustrates how the Court went about this process. We have already set out the provisions of the Act which deal with the functions of the Board. It cannot be disputed that the sole authority for determining whether or not an employee is excluded by paragraph (e) from the definition of a “worker”, is the Board.

In this instant case, both Mrs. Maharaj and Mr. Jairam ultimately conceded that the Court had no power to decide whether the Company Secretary was a “worker”.?

We therefore disagree with the view expressed by the Court that the words “in the opinion of the Board” in Section 2 (3) refer solely to a situation in which the Board is dealing with an application for recognition, registration and certification of a trade union as bargaining agent for a group of workers. The question is what is the proper course for us to follow in the absence of a determination of this crucial issue by the Board. Although it was the Union who suggested that the issue under paragraph (e) be referred to the Board for determination, the right course to follow was indicated to the Court but was unfortunately rejected by it. We do not think it right that in a trade dispute this Court should be deterred by any technicality from doing what is necessary in order to ensure that a matter in dispute of such fundamental importance to the case is determined by the body competent to decide it.

We propose therefore to remit the question of whether Mrs. Pujudas is excluded by paragraph (e) from the definition of “worker” to the Board for its consideration and determination. We are satisfied that we have the power to do so under section 18 (3) of the Act which provides in part as follows-

“18 (3) On the hearing of an appeal in any matter brought before it under this Act, the Court of Appeal shall have power—

(a) ???????? if it appears to the Court of Appeal that a new hearing should be held, to set aside the order or award appealed against and order that a new hearing be held; or

(b) ???????? to order a new hearing on any question without interfering with the finding or decision upon any other question,

and the Court of Appeal may make such final or other order as the circumstances of the matter may require.”

It can be argued that we are ordering a new hearing under paragraph (b), although it is not a new hearing by the Court but by a different body – the Board. But even if the residual case is not covered by paragraph (b), the residual power of the Court of Appeal as set out in the last two lines of the provision is wide enough to embrace the order we propose to make.” (Emphasis by me)

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7.?????? In Trade Dispute No. 212 of 2003, in the Industrial Court between Union of Commercial and Industrial Workers (the Union) and the Port Authority of Trinidad and Tobago (the Employer), delivered on January 17th 2005, the Industrial Court adopted a very pro-active approach to worker in accordance with the Industrial Relations Act in order to protect the process of the Industrial Court from being abused by any unwarranted and unjustified late raising of the worker status question. For purposes of the rest of this part and also the rest of this article, I will call this approach “the justifiably raised question of worker status under the IRA”. The following two (2) excerpts from this judgment should be meticulously read because they may have fundamentally impacted on this landscape up to the writing of this article in October 2024.

Excerpt #1 (Pages 6 to 7)

“THE LEGAL FRAMEWORK FOR CONSIDERATION OF THE OBJECTION

The question whether the Industrial Court has jurisdiction to say when a person is excluded from the IRA’s definition of a worker has by virtue of Court of Appeal judgments over the period 1998 to July 2002 in CA 183 and 184 of 1994 RRCB & BEU v Republic Bank, CA 37 of 2000 Albert v ABEL and CA 87 of 1999 Caroni (1975) Ltd v ATASS been decisively answered. It is now settled law that the Court has no such jurisdiction. In a Judgment delivered on March 19, 2003, the President of the Industrial Court in TD No. 43 of 2001 OWTU & NP stated that “once an issue is justifiably raised before the Court that a person or persons are not workers within the meaning of Section 2 (3) (e) of the Act, the Court does not possess the jurisdiction to deal with that issue.” Such an issue having been justifiably raised in TD 43 of 2001 the action taken by the Court was to remit the Trade Dispute to the Minister and to the parties pursuant to Section 10 (1) (a) of the IRA and to adjourn the matter generally pending resolution of the question by the Board.

The Court reiterates the approach taken in TD No 43 of 2001 which makes clear that the Court must when faced with an assertion that there is no “worker” determine whether or not the issue has been justifiably raised. This determination must be made before the Court can take any other action with a view to having the issue determined by the Board. It is not in every case where an employer seeks to avoid the Courts jurisdiction by asserting that there is no “worker” in the Trade Dispute that the court will automatically relinquish its jurisdiction. Such action may only be considered where the issue has been justifiably raised.” ??

“Matters relevant to the consideration whether the issue has been justifiably raised must include whether prima facie there is any merit to the assertion that the person is not a worker. It should also include considerations as to the bona fides of the objection being raised and as to whether it was raised in a manner likely to be prejudicial to the interests of the other party and the community as a whole. This approach accords with the status of the Court having all the powers inherent in a Superior Court of Record. Perhaps the most essential of these powers is that of preserving the Court’s jurisdiction and guarding against potential abuse of processes.”

Excerpt #2 (Pages 15 to 17)

“FINDING

We find firstly as a fact that the Employer is not genuinely of the view that Mr. Seetahal is not a worker. There are therefore no bona fides to the objection being raised at this time.

Secondly the Court finds that the Employer is estopped from raising the objection at this late stage by the fact that it consented to a judgment in the earlier proceedings when the objection to jurisdiction should have been raised.

The Court finds thirdly that there has been undue delay in the making of this preliminary objection particularly in the unique context of IRA proceedings where there were opportunities to raise the issue over a period of four years.

Finally the Court finds that the raising of the objection at this time is unduly prejudicial to Party No. 1 in this matter. It is not likely that even an order as to costs thrown away in the exceptional circumstances of this late objection would compensate for the time spent and costs incurred in pursuing this matter as a Trade Dispute. The raising of the objection also goes against the public interest in having a system for resolution of Trade disputes where the parties can anticipate that the intended purpose will be served at every stage. It cannot be that an Employer can be allowed to go through the motions through stages one and two, as though accepting that the relevant person is a worker entitled to protection under the IRA and then at almost the latest possible opportunity seek to impugn not just the proceedings in the Court but also those at earlier stages by then raising for determination whether or not the person is a worker.

In all the circumstances the Court finds that the issue as to whether Mr. Seetahal is a “worker” has not been justifiably raised by the Employer.

DECISION

The question that remains to be addressed is – what action should the Industrial Court take where an issue as to whether a person is a worker is found not to have been justifiably raised? Action taken by the Court must reflect its mandate under Section 10 (3) (b) of the Industrial Relations Act to act in accordance with equity and good conscience. The Court’s action must also give expression to the exercise of its inherent jurisdiction as a superior Court of Record. In this regard, it is useful to consider the “enlightening exposition of the purposes and function of these inherent powers” cited by His Honour Mr. L. Elcock in ESD IRO No. 2 of 1993 between Public Services Association and Water and Sewerage Authority delivered on June 29, 1999:

“The term “inherent jurisdiction” is not used in contradistinction to the jurisdiction of the Court … conferred on it by statute … for the Court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute. In sum, it may be said that the inherent jurisdiction of the Court is … a residual source of powers, which the Court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them … ”

In this context the answer can only be that the Court must proceed with the hearing of the Trade Dispute. The Court in so doing will not determine the question whether Mr. Seetahal is a worker but will focus solely on the substantive issues raised in the Trade Dispute.”

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8.?????? ?With respect to the “closed hearings” which was the normal procedure applied by the Registration Recognition and Certification Board when handling any matter which had been referred there in accordance with the provisions of the Industrial Relations Act, in CV2016-03524, In The Matter Of The Judicial Review Act Chapter 7:08 Of The Laws Of Trinidad And Tobago, Between Trinidad And Tobago Aviation Authority (Claimant) And Registration Recognition And Certification Board (Defendant), delivered on February 20th 2017, the High Court condemned the usage of such hearings because they violated the principles of natural justice. In this regard, the following quotation from this judgment will reveal exactly why parties that appeared before the Board felt a great sense of doubt in the integrity of the process which was applied by the Board:?

“53. ? Another aspect of the flawed procedure adopted by the RRCB, was its decision to engage in closed hearings with each party in the absence of the other. The procedure adopted was not consistent with the decision of Madam Justice Gobin in the case of Desalination Company of Trinidad and Tobago (Desalcott) v. Registration Recognition and Certification Board and others, CV2013-00039, where the Judge commented on the practice of the RRCB to hold close hearings and stated at paragraphs 51 and 52 as follows:

? “51. ? By adopting this practice the Board has ignored the rules of procedure made under the Act which, while they allow a fairly wide discretion as to how to deal with certain matters, clearly contemplate proper service, notifications and substantive inter partes hearings where necessary before the Board. The rules notwithstanding, private communications between each side and the Board’s representatives appear to have become the order of the day. It appears that even now, the Board does not believe that it is under a duty to notify the absent party as to what transpired in its absence, so as to afford that party the opportunity to make appropriate representations. If ‘Clarification Meetings’ which are closed, have become to be the only actual hearing that are afforded the parties, and that is the impression I got, I do not think that this is what the legislation contemplated.

52. The fairness of ‘closed hearings’ generally was considered in the case of Bank Mellat v Her Majesty’s Treasury (HOL) 2013 UKSC 38: “Even more fundamental to any justice system in a modern democratic society is the principle of natural justice whose most important aspect is that every party has a right to know the full case against him, and the right to challenge that case fully.

A closed hearing is therefore even more offensive to fundamental principle than a private hearing. At least a private hearing cannot be said of itself to give rise to inequality or even unfairness as between the parties. But that cannot be said of an arrangement where the court can look at evidence or hear arguments on behalf of one party without the other party (the excluded party) knowing or being able to test the contents of that evidence and those arguments (the closed materials) or even being able to see all the reasons why the court reached its conclusion.”

54. ?? Attorneys for the Claimant candidly drew the Court’s attention to Rule 17 of the RRCB rules which provides that: “The records of a trade union relating to its membership and any records that may disclose whether a person is or is not a member of a trade union which are produced in a proceedings shall be for the exclusive use of the Board and its officers and shall not, except with the consent of the Board, be disclosed to any person.”

55. ?? This Court is resolute in its view that the RRCB, even in the face of the instructive decision of Gobin J in Desalcott (supra), failed and/or refused to apply the rules of natural justice when having elected not to disclose to the Claimant the information that had been derived from the PSA records and the PSA’s submissions that related to section 34 of the IR Act. The RRCB also further disregarded the rules of Natural Justice when it proceeded to carry out closed hearings with each party in the absence of the other.

56. ?? For the reasons that have been outlined the Court finds that RRCB acted improperly and erroneously entertained and determined the PSA’s certification application and it acted in violation of the principles of natural justice.”

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9.?????? We have now arrived at Civil Appeal No. 124 of 2016, in the Court of Appeal between D & K Investments Limited (Appellant) and Banking Insurance and General Workers’ Union (Respondent), delivered on March 31st 2017, which is definitely worth taking the time to read by itself after you have completed my article since you can only experience professional growth by doing that reading. ?In this judgment the Court of Appeal pellucidly examined and endorsed the concept from the Industrial Court that speaks to whether an employer had “justifiably raised” the question of “worker in accordance with the Industrial Relations Act” before it could qualify to be referred to the Registration Recognition and Certification Board. The following excerpts from this judgment will be instructive:

Excerpt #1 (Pages 42 to 44)

“111.???? Insofar as the appellant submits that the Court did not consider or follow binding Court of Appeal decisions there is merit in this ground of appeal. It is clear that in the decisions relied by the Court all proceeded on the basis that the Court did not have the jurisdiction to determine whether or not a person was a worker under the Act. Since the Court indicated its reliance on these cases we must assume that, as in those cases, the Court accepted that it did not have the jurisdiction to determine whether an employee was a worker under the Act.

112.?????? The position taken by the appellant that the Court failed to consider or follow the previous decisions in: The Registration, Recognition & Certification Board & Bank Employees Union Civ. Apps No. 183 and 184 of 1994; Albert v Alstons Building Enterprises Limited Civ. App. No 37 of 2000 and Caroni (1975) Limited v Association of Technical Administrative Supervisors Staff Civ. App 87 of 1999 is therefore not maintainable.

113.?????? What the decisions emanating from the Industrial Court did however was to go a step further and leave it to the Court to determine whether the question was an issue before it or had at least been justifiably raised in the trade dispute. If it was not an issue or had not been justifiably raised then there was no question of the exclusion by section 2 (3) (e) having any application and the Court’s jurisdiction to hear and determine the trade dispute remained untouched.

114. ????? Like the Industrial Court we are of the opinion that there is merit in this position and the stance taken in the dissenting ruling in Banking Insurance and General Workers’ Union. In that case, as in this one, the issue was not whether the Court had the jurisdiction to treat with the question of whether the employee was a worker under the Act but whether the Court had the jurisdiction to hear and determine the trade dispute given the application before it.

115.?????? Up to the point when the issue was raised the Court was properly seized of the trade dispute. Although there was ample opportunity to do so, at the conciliation hearings before the Minister and the Court or in their evidence and arguments filed, no objection had been taken by the appellant to the jurisdiction of the Court to hear the trade dispute.

116.?????? The application before the Court made in July 2015 was to have the Court refer the question of whether the employee was a worker under the Act to the Board for its determination. In those circumstances it was incumbent on the Court to look at the evidence and arguments filed to see whether this was an issue in the trade dispute before it. Nothing on the appellant’s pleaded case suggested that it was an issue for the Court’s determination. There was no evidence relating to the point neither was this an argument raised by the appellant.”

Excerpt #2 (Pages 44 to 45)

“117.???? Further and perhaps of greater importance was the fact that, as disclosed in the letter, the sole basis for the application was the fact that the employee had been employed as a HR Manager. The appellant submits that this was sufficient, at least prima facie, to place the employee within the definition of manager in the context of section 2(3)(i). We disagree. The case of the Electric Ice Company v Federated Workers’ Trade Union (1967) 12 WIR 362 is instrumental in this determination.

118.?????? This was a case brought under the provisions of the Industrial Stabilisation Act (“the ISA”) the precursor of the Act. Indeed it was, in part, as a result of the decision in this case that the definition of worker under the Act was formulated in this manner.

119. Under the ISA “worker” was defined to mean

“any person who has entered into or works under a contract with an employer, whether the contract be by way of manual labour, clerical work or otherwise, be expressed or implied, oral or in writing and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour and includes an employee of the Government other than a public officer as defined by section 105 of the Constitution, but does not include any person comprised in or responsible for the management of any undertaking”.

120.?????? The issue in the Electric Ice Company was whether a person who held the post of branch manager was a worker under the Act. The Court of Appeal, led by Wooding CJ, held “(i) that in order to ascertain whether an employee is a worker as defined in the Act the critical test is what function he performs and not what title he is designated; and (ii) that the words “any person comprised in or responsible for the management of any undertaking” mean a person to whom is committed principally the direction and control of the undertaking.”

121. ????? It is clear therefore that, given the case law and the definition of worker under the Act, there was nothing before the Court to suggest that there was an issue as to whether the employee was a worker under that Act. The mere fact that the employee was called a manager was not sufficient to bring her within the exception. The only evidence before the Court of the functions performed by the employee was the evidence of the respondent as to her main duties and the employment agreement.

122.?????? This evidence confirmed that under her terms and conditions of employment the employee was required to report to a department head with respect to time off and was subject to performance appraisals by the department head. Further it is clear on the evidence of her actual duties that the employee could not in any way be considered to be responsible for the formulation of policy or in the effective control of the whole or any department in the appellant’s business.”

Excerpt #3 (Pages 46 to 50)

“127.???? There is however another aspect of this case. It arises from statements made in two of the decisions relied on by the Court and was raised by the respondent in its letter in response to the appellant’s letter raising the issue for the first time. It concerns the duty of a court to protect its processes from abuse. It is a power:

“which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among thinking people”:

per Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at page 536. ??

128.?????? It is this principle that both her Honour Donaldson-Honeywell, as she was then, in the Union of Commercial and Industrial Workers v the Port Authority of Trinidad and Tobago case and His Honour Aberdeen in the Banking Insurance and General Workers’ Union v University of Trinidad and Tobago (U.T.T.) referred to when they spoke about obligation of the Court, as a Superior Court of Record, to protect or preserve its jurisdiction and guard against abuse of its processes.

129.?????? On the facts of this case we are satisfied that it is an abuse of the process of the Court for this issue to be referred to the Board at this late stage. Section 17 of the Act, requires the court to expeditiously hear, inquire and investigate every dispute and all matters affecting the merits of a dispute before it...”. This injunction is repeated at section 11 (c) which mandates the Court to:

“do all such things as are necessary or expedient for the expeditious and just hearing and determination of the trade dispute or any matter before it.”??

…131.?? The disputes procedure under the Act puts strict time limits on the reporting of a trade dispute: section 51 of the Act and the referral of such trade dispute to the Court by the Minister: section 55 of the Act (sic). Expedition therefore is one of the hallmarks of proceeding before the Industrial Court. Understandably so since the purpose of the Act establishing the Court was to make better provision for the stabilization, improvement and promotion of industrial relations.

…134.?? In our opinion, in these circumstances, the decision of the Court to dismiss the application on the basis of the three cases referred to by it was a reasonable exercise of its discretion and accords with the statutory framework. The first indication that the appellant was alleging that the employee was not a worker was in the letter of the 14th July (sic) written almost three years after the dispute had been reported to the Minister as a trade dispute and some two years after the trade dispute was referred to the Court by the Minister.

135.?????? The application was made in the absence of any earlier challenge to the Court’s jurisdiction to treat with the trade dispute and in circumstances where the appellant adduced no evidence or argument that could support such a position. The position taken by the appellant flies in the face of sections 17 and 11 (c) of the Act. To allow the appellant to pursue such an application before the Board at this stage and in these circumstances would be manifestly unfair to the respondent. Further to allow the appellant to institute further proceedings before the Board is not only unnecessary but to adopt the words of section 10 (1) (d) “undesirable in the public interest”.

136.?????? Put another way in our view to seek to have the question of whether the employee was a worker under the Act ventilated at this stage and with no evidential basis would not only be manifestly unfair to the respondent but bring the administration of justice into disrepute among right thinking people. In the circumstances this constitutes an abuse of the process of the Court.

137.?????? In the circumstances the appeal is dismissed and the decision of the Industrial Court affirmed.”

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10.?????? The ruling in CA No. 74 of 2018, in the Court of Appeal between Caribbean Shipping Agencies Limited (Appellant) and National Union and Government Federated Workers (Respondent), delivered on December 7th 2018, gave this area of industrial relations a significant boost in the arm because it not only endorsed the principles captured in the previously quoted judgment of D & K Investments Limited but it also overturned the inflexible decision making process which was being applied by the Industrial Court in this area of the law because the said Industrial Court had refused to consider meritorious evidence because of the perceived delay which was caused by the Company. The following quotations will definitely do justice to this topic:

Quotation #1 (Page 21)

“The court committed two errors:

(i)????????? It found that the Company had been notified, by the Minister of Labour, of the conciliation proceedings but did not attend. It held that the Company had had ample time to raise the issue “upon the invitation from the Minister to attend conciliation proceedings”. By not attending the conciliation proceedings it had “denied itself” the opportunity to raise the question of the status of the worker before the Minister. However there was no proper evidence that the Company had in fact been invited by the Minister to attend conciliation proceedings. The finding had no evidential basis.

(ii) ??? More significantly, it failed to consider the evidence put forward by the Company in support of its contention that Mr. Kalicharan was not a “worker”. This evidence was highly relevant to whether the objection has been justifiably raised.”

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Quotation #2 (Pages 25 to 26)

“Non-consideration of the evidence

[45] But however egregious the tardy compliance, it was outweighed by the second and most fundamental error made by the Court. This was its failure to consider the evidence put forward by the Company to support its contention that Mr. Kalicharan fell within the exception set out in section 2(3)(e)(i) and (ii) of the Act. This was an extremely relevant consideration to whether the objection had been justifiably raised. In D & K Investments the evidence provided by the employer in that case ultimately did not justify the objection to the worker’s status. Both the Industrial Court and the Court of Appeal came to that conclusion after examining the evidence.

[46] In this case however, the Industrial Court looked only at the history of the Company’s attendance at the conciliation proceedings and its tardy compliance with its orders for filing of evidence and arguments. Certainly that was a relevant consideration (if in fact tardiness and non-attendance were borne out by the evidence). But it was not the only consideration. In addition to the explanation given by the Company (that it had not been informed of conciliation proceedings) the evidence produced by the Company as to the employee’s status under the Act was also relevant. In this case the court did not consider the evidence neither did it consider Mr. Rambally’s explanation for not attending conciliation or its own statement that the Company was not receiving its orders. I well understand the court’s frustration about the Company’s late application given the many indulgences given to the Company by the court, but in arriving at its decision it must act judicially. This requires an examination of the case in the round by considering the evidence produced by the employer as well as the facts and circumstances which may have affected its non-attendance of the conciliation proceedings. While the Company was tardy in its compliance with the court’s orders, its non-attendance at conciliation was not the Company’s fault and the evidence it provided raises a genuine issue as to Mr. Kalicharan’s status as a worker under the Act.

[47] The errors to which I have referred are errors of law within the meaning of section 18(2)(d). Given the errors made, it is now open to the Court of Appeal to consider the matter afresh. The D & K Investments principles as summarised at paragraph 30 are relevant. Having regard to the evidence the Company has adduced it is arguable that Mr. Kalicharan may well fall within the exception to the definition of “worker” set out in section 2(3)(e)(i) and (ii). It produced evidence, including emails, to show that Mr. Kalicharan: (a) was responsible for the formulation of policy, or had an effective voice in policy formulation within the brokerage department; (b) had effective control of the policy and direction of the brokerage department. Indeed, this is arguable even on the Union’s evidence and arguments. In my judgment therefore, the issue was justifiably raised. The appeal is allowed.”

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11.?????? The final case which I believe we need to explore is another Court of Appeal matter which also overturned a ruling from the Industrial Court. This matter is Civil Appeal No. P286 of 2016, in the Court of Appeal between Trinrico Steel and Wire Products Limited (Appellant) and Advocate Trade Union (Respondent), delivered on January 18th 2021. In this matter the Court of Appeal explored the previous case above and arrived at a conclusion that the Industrial Court made a significant error by placing undue emphasis on the delay which the Court of Appeal did not see as too long and the Industrial Court also failed to consider the community interest when it had ruled in the matter which was before it. The following excerpts will be quite instructive in your appreciation of the reasoning from the Court of Appeal:

Excerpt 1 (Pages 16 to 18)

“Errors in the Exercise of its Discretion

31. The Industrial Court therefore, only asked itself two matters: whether the preliminary issue could have been raised earlier and whether this was an abuse of its process. At page 7 of its judgment it stated: “Effectively, the substance of the Employer’s preliminary point amounts to asking this Court to decline its jurisdiction in this matter to allow the Employer the opportunity to acquire the evidence it needs to substantiate its assertion that the Court does not have jurisdiction to hear and determine this dispute. Such an approach must amount to an abuse of process. Further, any delays caused by such an approach would unfairly affect the Workers’ right to the expeditious and just hearing and determination of the dispute pursuant to section 11(c) of the Act.”

32. It then emphasised that it was within the Employers’ power and their responsibility to raise this issue at the conciliation hearing or while the matter was before the Minister. We agree with Trinrico that the Court created the wrong impression that in failing to raise the matter before the Minister they are barred from doing so at a later stage.

33. The Court failed to ask itself the relevant question whether the issue of the referral was justifiably raised by the Employer and failed to assess all the relevant circumstances involved in an examination of that question as discussed in D&K Investments. While those factors are certainly not closed, they are relevant to the exercise of the Court’s discretion to determine whether or not Trinrico’s preliminary issue was justifiably raised. Failing to examine all the relevant factors will amount to demonstrable error in the Court’s exercise of its discretion.

34. Further, the Industrial Court appeared to place undue emphasis on delay. It cannot be harshly criticised for doing so. Having read the transcript and the written submissions, heavy emphasis in the exchanges was placed on the question of delay and indeed whether the Employer was prevented from raising the issue at a later stage, a submission which the Industrial Court seemed to favour. It also did not have the benefit of the Appellate Court’s judgments in D&K Investments and Caribbean Shipping. However, delay is not the only relevant factor in the exercise of its discretion.

35. In placing undue emphasis on delay without regard to other relevant factors, the Industrial Court erred in law. Whether this would have resulted in a different outcome warrants this panel examining the matter afresh as invited to do so by Counsel for both parties.

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A Bona Fide Question

36. We are of the view that Trinrico had raised a bona fide question of whether Mr. Deo was a worker within the meaning of the Act. It did not act in bad faith. Trinrico acted on the misapprehension that the conciliation meeting in relation to Mr. Deo was abandoned after the Conciliator was informed that the employee was not dismissed but suspended and accordingly, there was no genuine dispute connected with a dismissal. Trinrico raised the point in its evidence and arguments, approximately four months later. Although it did not write to the Minister nor did it telegraph this submission to the Industrial Court at the directions hearing, in the absence of any interrogation into this matter, it cannot be said that Trinrico acted in bad faith. This is consistent with its letter written to the Registrar after taking the preliminary objection. What ought to have occurred was the convening of a case management conference to manage Trinrico’s preliminary issue, whether to be dealt with either at the date of hearing of the trade dispute or at a preliminary hearing to determine whether a referral to the Board was necessary or not.

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Delay

37. There were indeed many opportunities when this issue could have been raised prior to the filing of the Trinrico’s Evidence and Arguments. Apart from the conciliation meeting, there was the case management conference on 9th October 2015 where directions were given to the parties to file their Evidence and Arguments and the Mention and Report Proceedings on 26th January 2016 (subsequent to when Trinrico would have filed its Evidence and Arguments on 4th December 2015). However, one must take this period of delay in context. The overall period accounted for a mere matter of approximately 4 months from the conciliation proceedings and 2 months after the case management conference when compared to the 3 years that elapsed in D&K Investments Limited and 4 years in Port Authority. However, while the delay in this case is not egregious, it is no licence to parties to not use their case management conferences before the Industrial Court more proactively.”

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Excerpt 2 (Page 18)

“Interest of Parties

38. The Court must take into account whether the issue was raised in a manner likely to be overly prejudicial to the interest of the other party and to the community as a whole. While the Industrial Court is interested in the expeditious resolution of disputes, 9 it must also be concerned with the just resolution of them. In this case, the issues raised and the manner in which it was raised should have justifiably caused the Court to consider the issue on its merits and to take a holistic view of the bona fides of this preliminary objection.” (Emphasis by me)

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Excerpt 3 (Pages 18 to 20)

“Merits

39. In this case, even though the evidence submitted by Trinrico was not detailed and not supported by the type of evidence as set out in Caribbean Shipping, there is merit in the issue raised that Mr. Deo is not a worker. In the witness statement of Daniel Ramoutarsingh10, the Chairman and Marketing Director of Trinrico stated:

“4. Trinrico’s principal business is the fabrication and sale of steel and steel related products and for these purposes Trinrico manufactures and sells drawn wire, annealed wire, welded wire mesh, mild steel rods, rebars, chain link fencing, barbed wire and nails from its factory at 1a Cottage Road, Reform Village, Gasparillo. 5. The Worker was first employed by Trinrico with effect from 20th April 1975 and held various positions including Purchasing Manager and with effect from 13th April 1992 he was appointed Trinrico’s Production Manager at a then monthly salary of $3500.00. At the date of his dismissal with effect 23rd February 2015 he was being paid $7,510.74 per month. 6. In his capacity as Production Manager, the Worker was in effective control of the whole of Trinrico’s Production Department which is a separate unit or division in Trinrico’s business dealing specifically with the manufacture and fabrication of steel and steel related products. Moreover, the Worker as Production Manager was responsible for every aspect of production including (but not limited to) the oversight of workers in his department, equipment maintenance and repair, procurement, transportation, delivery, inventory control and security. 7. The Worker’s duties and functions were not merely in relation to his department because as a long standing and highly valued and trusted employee, Trinrico reposed great trust and confidence in him that he would not only be loyal to and secure Trinrico’s best interest but equally, not do anything that would destroy this confidence or participate in, facilitate or encourage illegal or fraudulent practices at Trinrico. The Worker’s seniority was underscored by the fact that he answered directly to Agile Bahadursingh.”

40. Further, at paragraph 4 of the Respondent’s Evidence and Arguments, it is stated at paragraph 4:

“The Worker was employed with the Company on April 23 1975 as the Production Manager/Purchasing Officer.”

41. The Respondent did not file a Reply to deny any of the matters set out in Trinrico’s Evidence and Arguments. Further, having seen the Evidence and Arguments, the Respondent’s witness statement failed to address the question whether Mr. Deo was a worker.

42. There were no other relevant factors to be considered. This is not to say that one of these factors would outweigh the other. They all must be considered in the round with the Court attributing to these factors the relevant weight. Clearly, however, an overemphasis on delay without balancing that with considerations of the merits and the bona fides of the objection would lead to error. It is the omission of the Industrial Court to properly consider all the relevant factors in this case that permitted this issue to be revisited on appeal.

43. In this case the Industrial Court arrived at a decision, which was plainly an exercise of its discretion on an erroneous premise, and this Court can reverse such a finding.

Conclusion

44. Accordingly, in placing undue emphasis on delay without considering all the other factors relevant to the issue whether the matter was justifiably raised by Trinrico, the Industrial Court fell into error. When considering all the relevant factors in the round, the question of whether Mr. Deo was a worker was justifiably raised by Trinrico and ought to have been referred by the Industrial Court to the Board.

45. For the above reasons the appeal was allowed and the matter was remitted to the Industrial Court with the direction that the question of whether Mr. Deo is a worker, having regard to the provisions of section 2 (3) (e) of the Industrial Relations Act, be referred to the Registration, Recognition and Certification Board. We made no order as to costs.”

CONCLUSION OF ARTICLE

The information contained within the above cited judgments is there for all to read especially the managing directors and / or owners of businesses. Now that you have read this article, do you still think that it is a great idea to raise worker in accordance with the provisions of the Industrial Relations Act even though you have no policies, job descriptions, emails or resumes which could ascertain that the employee is not a worker? Should the Industrial Court order cost against you if you had failed to raise the worker question in a timely manner but have no mitigating circumstances to justify the delay? Should you continue to trust your lawyer or your industrial relations consultant if it is discovered at the Industrial Court that they are completely ignorant about the cases which I have shared with all readers within this article? Would you still instruct your lawyer or industrial relations consultant to raise the worker status of the employee merely to frustrate the attempts by the employee to utilize the Dispute Procedure contained within the Industrial Relations Act? Finally, has your HR Department managed the recruitment process effectively so that the proper evidence that excludes upper management from being workers is properly compiled and available for any eventualities?