ILL-HEALTH processing that IS LINKED to a JOB-RELATED INJURY In Trinidad & Tobago In 2025 (March 2025)
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1.????????????? INTRODUCTION:
A.?????????????? In Trinidad and Tobago every place of employment which operates within the geographical borders of Trinidad and Tobago must adhere to and be guided by the judgments that emanate from the Industrial Court and any other court which delivers judgments connected to our Labour Jurisdiction. You have no choice in this matter as to the application of the principles and practices of good industrial relations because it is a special statutory power that captures the intention of the Parliament of Trinidad and Tobago. Once you are operating a place of employment in Trinidad and Tobago, your lawyers, HR staff and Industrial relations advisers are duty bound to know the pronouncements from the Labour Jurisdiction of this Country in order to be ensure that your place of employments applies those pronouncements, where applicable.
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B.??????????????? This is another STANDALONE ARTICLE and it deals with another contentious topic which many companies and employees are faced with on a regular basis. Therefore, it is integral that I do restate certain applicable principles for the completeness of this article so that any reader would be able to grasp and follow my trend of thought without having to read any of my other articles. Under this topic such concepts as humanitarianism, ILO Conventions, constructive dismissal, consultation, medical boarding, reinstatement will be featured because the failure to appreciate how to apply and implement these concepts have proven to be unfair, harsh and oppressive in the final decisions which had been made at companies which have been named within the related judgments from the Industrial Court and other courts.
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C.?????????????? Once again, it is a fact that the nature and scope of the information which I will be sharing within this article are essential for everyone connected to a place of employment, that is, the owners of companies, employees who are ordinary workers and middle-level managers and employees who are upper-level managers. Failure by owners of companies and any level of managers and supervisors to understand the distinctions contained within this article would routinely result in expensive mistakes which violate the employment rights of workers. These potential mistakes are normally addressed by the judges from the Industrial Court whenever a trade dispute reaches the Industrial Court.
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D.?????????????? As per usual, I have not used my personal opinion in the writing of this article because we are all required to rely on the various court judgments in order to guide ourselves when dealing with the rights of workers and the rights of companies. Therefore, it is to the judgments that we all must look to in order to discover what the rights of workers actually are by virtue of the interpretation which are made by the court system of those rights. From the judgments quoted in this article, readers would effortlessly detect that the damages and compensations awarded at the start of the 21st century have grown in a revolutionary manner instead of an evolutionary manner because of the rapid development of humanitarianism in the place of employment and the troubling failure by employers to adhere to the principles and practices which are being churned out by the Industrial Court. It seems as if the members of upper-management at many companies completely ignore anything which the Industrial Court pronounces on with respect to being injured at the job. Whether the ignoring is based on ignorance or contempt, not adhering to these principles and practices undermines the stability of the places of employment.
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E.??????????????? This article contains the following topics:
1.???????????????? INTRODUCTION;
2.???????????????? Ignorance Of The Principles And Practices Of Good Industrial Relations Is Not An Excuse Available For Use At The Industrial Court;
3.???????????????? There Is A Special Burden On Any Employer To Provide Reasonable Alternative Employment To An Employee Who Was Injured At The Place Of Employment If The Unsafeness At The Place Of Employment Caused The Injury;
4.???????????????? We Can Even Learn About The Fundamental Role Of Consultation From The Recent Ruling Of The Court Of Appeal Over The Processing Of ILL-HEALTH Which Is Linked to NON-JOB-RELATED CIRCUMSTANCES;
5.???????????????? Humanitarian Violations In The Face Of An Employee’s Inherently Weak Bargaining Power And Age May Also Be Taken Into Consideration And Such Violations Keep Becoming More And More Expensive At The Industrial Court; and
6.???????????????? Age Discrimination Cannot Be Used Against A Worker Because The Principle Of Life-Long Learning Is An Approach That Guides The Industrial Court When Dealing With The Use Of Alternative Employment.
2.????????????? Ignorance Of The Principles And Practices Of Good Industrial Relations Is Not An Excuse Available For Use At The Industrial Court
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With respect to the ignorance of the principles and practices of good industrial relations being used as an excuse, your attention is once again directed to the following two (2) quotations from TRADE DISPUTE NO. 481 OF 2014, delivered on January 26th, 2017, in the Industrial Court between BANKING, INSURANCE AND GENERAL WORKERS’ UNION And BG TRINIDAD AND TOBAGO LIMITED (CORAM: SEALE, MAHABIR & MITCHELL), which I believe may be instrumental for any reader to appreciate the responsibility of the Industrial Court under certain circumstances where it has to treat with gross ignorance by management:
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(Page 2)
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“2.???? THE NOTICE OF TERMINATION
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There was no written Notice of Termination of service issued to the Worker.
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3.?????? THE EVIDENCE LED BY THE PARTIES
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Both parties relied on documentary evidence inclusive of witness statements augmented by the viva voce testimony of their witnesses, namely, the Worker for the Union and the Vice President, Human Resources and Business Support, Mr. Bryan Sealy (Sealy) for the Company in support of their respective cases.
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4.?????? THE BACKDROP INFORMATION TO THIS ACTION AND THE POSITIONS OF THE PARTIES
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The Worker commenced employment with the Company in 2002 and his last day of work was December 31, 2012. At the time of his termination, he was drawing a basic salary of $81,417.50 per month with additional perquisites, totaling $93,630.13.
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In or about February 2011, the Company began a review of its structure and concluded towards the end of the last quarter of? 2012, that downsizing was inevitable. The Company opined that the Worker was a casualty of this process. On November 14, 2012, Sealy informed the Worker about his termination of service effective.” (sic)
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(Pages 5 to 7)
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“6.???? THE ISSUES IN THIS TRADE DISPUTE
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Was the Worker’s dismissal harsh and oppressive and inconsistent with the principles of good industrial relations practice? Assuming that this issue is determined in the Union’s favour, is he entitled to the relief sought? Are they excessive or unreasonable or simply appropriate in the circumstance?
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7.?????? THE ANALYSIS AND THE FINDINGS
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There was not the slightest doubt in the Worker’s mind that his employment relationship with the Company had ended on December 31, 2012. The Worker, however, does not know whether he had been dismissed for cause, for he was not given a letter of termination of service. In any event, there is no credible evidence that a cause was verbally communicated to him. Moreover, there was no valid retrenchment. We explain.
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To effect a valid retrenchment, the employer, must among things, first serve written notice both to the affected employee and the appropriate line Minister before the intended date of retrenchment. Secondly, the employer pays the retrenched employee separation pay in an amount prescribed by law. Thirdly, the employer exercises its prerogative to retrench the employee in good faith.
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Absent these prerequisites either singularly or collectively means that an employee’s dismissal would be without cause and the BENEFIT OF DUE PROCESS. On the evidence led, we find and, so hold, that these prerequisites-collectively-were absent in this case. Therefore, the Worker was dismissed without cause and due process, which rendered the Company’s action harsh and oppressive and not in accordance with the principles of good industrial relations practice.
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In furtherance thereof, we find no merit in Sealy’s explanation why the Company failed to pay the Worker severance benefits upon his purported retrenchment. On this issue Sealy testified that “we thought we didn’t have to” because of an apparent discretion the Company believed was permitted in its letter to the Worker dated January 3, 2012.
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Make no mistake, the Company’s action was based in the EMPLOYMENT-AT-WILL RULE (THE RULE) where an employer may discharge an employee for a bad reason or for no reason at all. However, THE RULE HAS NO PLACE IN OUR EMPLOYMENT SYSTEM. We are bound by the provisions of S. 10 of the Industrial Relations Act, Chap. 88:01, which commands us to find whether a worker has been dismissed in circumstances that are harsh and oppressive and not in accordance with the principles of good industrial relations practice.
In this regard, the International Labour Organization’s termination of Employment Convention (No. 158) and Recommendation (No. 166) create an obligation for termination to be justified by a valid reason. That obligation which is an important component of the principles of good industrial relations practice is not to be exercised in flippant or whimsical circumstances. Ignorance of the principles of good industrial relations practice excuses no one.
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7. ????? THE DECISION (sic)
The dismissal of the Worker was an exercise that was capricious and tainted with mala fides and unfairness which rendered the dismissal harsh and oppressive.
8. ????? THE ORDER (sic)
The Court shall now make the remedial order based on the facts of the case. In this context, taking all of the above matters into account, and for the reasons we have given herein, and in accordance with equity, good conscience and the substantial merits of the case, having regard to the principles of good industrial relations practice the following consequential order in the Union’s favour is made:-????? ??
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(i)?????????????? DAMAGES
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The Court orders that the Company do pay the Worker as damages the sum of three (3) million dollars ($3,000,000). This sum is to be paid to the Worker within thirty (30) days from the date hereof.
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For the avoidance of doubt, the damages ordered herein are exclusive of the Worker’s pension benefits to which he is entitled on the date of leaving the Company’s service on January 1, 2013.” (Emphasis by me – DPM)
3.????????????? There Is A Special Burden On Any Employer To Provide Reasonable Alternative Employment To An Employee Who Was Injured At The Place Of Employment If The Unsafeness At The Place Of Employment Caused The Injury
A.?????????????? All employers need to recognize that the place of employment in Trinidad and Tobago is mandated to adhere to the guidelines provided within CONVENTION NO. 155 OF 1981 – OCCUPATIONAL SAFETY AND HEALTH CONVENTION. Convention No. 155 of 1981 was pellucidly featured within the ruling of the Industrial Court on ESSENTIAL SERVICES DIVISION (ESD) TRADE DISPUTE NO. 17 OF 2002, delivered on December 13th 2006, between OILFIELDS WORKERS’ TRADE UNION and TRINIDAD AND TOBAGO ELECTRICITY COMMISSION (CORAM: BAKER & GUALBANCE-RAJKUMAR). The following excerpts from this judgment will be instructive on how the Industrial Court introduced this international statute so that it became part of the human rights of the workers in Trinidad and Tobago:
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(Page 22)
“On page 18 of the judgment ESD NO. 44 OF 1991, H.H. V. Ashby expressed the following views:
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“It goes without saying that it is regrettable that accidents should happen, especially when, as in this case, workers are injured. It is understandable that the prevention of accidents or their reduction to a minimum should be high among the priorities of employers and that their policies should be designed so as to avoid situations when responsibility for safety falls, as it were, between two stools.”
In Article 4 of the International Labour Organization (ILO) Convention No. 155, the principal objective of the policy regarding occupational safety and health and the working environment is “… to prevent accidents and injury to health arising out of, linked with or occurring in the course of work, by minimizing, so far as reasonably practicable, the causes of hazards inherent in the working environment.” Article 16 of the said Convention therefore requires that “Employers shall be required to ensure that so far as is reasonably practicable, the work places, machinery, equipment and processes under their control are safe and without risk to health.” The Court endorses this principle and the level of precaution that ought to be undertaken by an employer to ensure the prevention of hazards inherent in or associated with any working environment.
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Employers carry the major responsibility for ensuring the health, safety and welfare of employees while they are at work and this responsibility also extends to their customers. According to Perry, they have a duty as well to undertake an assessment of the hazards and risks associated with work activities, and in so doing, implement controls which either eliminate hazards or reduce their risks to acceptable levels.”
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(Page 24)
“The evidence presented to this Court does not suggest that the Workers acted in a manner that was “grossly negligent” as alleged by the Commission. Although the Workers were not entirely without blame, the evidence before us demonstrates that there existed a situation “fraught with danger”. We are of the view that the Commission failed to provide a safe system of work for its personnel and its customer, Stamp. Its Report and subsequent action taken after the incident to pilot the vessel to its final destination, clearly indicate, in hindsight, recognition of its shortcomings. The Commission’s attempt to place the burden of responsibility for the incident of October 10, 2001, upon the Crew against a tableau of managerial error is not tenable.”
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B.??????????????? In TRADE DISPUTE NO. 219 OF 1999, delivered on April 6th 2000, in the Industrial Court between MANAGERS AND SUPERVISORS ASSOCIATION OF TRINIDAD AND TOBAGO and GERIZIM FARMS LIMITED (CORAM: ELCOCK & RAMSUBEIK), the Court awarded damages to an employee after her employer refused to acknowledge her as an employee after she was INJURED ON THE JOB. The following two (2) quotations are instructive in this regard:
(Pages 4 to 5)
“The worker Margaret Castle gave evidence on behalf of the Union. The Court found her to be articulate, sincere, straightforward and truthful; and in the absence of any representation by the Company in order to test her evidence, the Court accepts her evidence as proof of the material facts in this case.
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That being said, the Court finds as follows:
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·??????? That the worker was first employed by Gerizim Farms Limited in or about the month of March 1963 having been taken on by one, Mr. Nunes who eventually sold the farm and/or the Company to Mr. Robert Sands and at least two other persons.
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·??????? The worker’s original rate of pay at the commencement of employment was Three Dollars [$3.00] per day. Upon the Company being taken over by Mr. Saunds and others the worker was promoted to the position of supervisor and was paid a salary of a little more than Two Hundred Dollars [$200.00] per week. There is evidence presented to the Court in the form of the pay packet for the week ending 17th November, 1997, that her salary by that date, had been increased to approximately Five Hundred and Nineteen Dollars [$519.00] per week; and there is also a weekly wage card indicating that for the week ending 8th April, 1998, her wages were in the vicinity of Five Hundred and Forty-Four Dollars [$544.00] per week.
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The Court also finds that the worker was injured in or about the month of April 1998 when she stumbled upon a crate at the premises of the Company, while going about her duties and suffered injury to her lower back and her leg. She reported this matter to the secretary employed by the Company [whether Corporate Secretary or Stenographic Secretary, is not clear] by the name of Rebecca Seerattan who sent her to be medically examined and gave her money for that purpose.
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The worker attended one Dr. Joyce Lue Quen Ti at Arima, and after her ailment persisted, she was sent to the hospital at Mt. Hope for an X-ray. The worker subsequently proceeded on her vacation leave; and on or about the 4th May, 1998 went to the United States to receive medical treatment for her injuries. There was put into evidence before the Court, two [2] letters from the Caribbean-American Health Center of Brooklyn, New York.” (Emphasis by me – DPM)
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(Pages 6 to 9)
“The second letter was dated 9th July, 1998 and its wording is identical to that of the letter of 13th March. In the absence, again, of any representation from the Company, the Court takes it for granted that this letter was duly posted to Gerizim Farms and received by the Company.
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We also find that upon her return to Trinidad at the end of 1998, the worker reported to the Company and was told by a representative of the Company, [a young gentleman whose name she cannot recall], that the Company had no records of her employment with them. The worker then reported this development to Mr. Saunds who resides on premises adjoining the Company’s farm, and he expressed [according to the worker] mild outrage at the treatment she was being offered. One notes, in this connection, that Mr. Saunds had, by then, sold the Company to the present owners.
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The worker went back to the United States in the year 1998 and again, returned to Trinidad in 1999 and received the same treatment from the Company, that is to say, the Company denied having any record of her having worked with it. However, the Court, again had before it a form issued by the Inland Revenue Department called “the TD4”, which in fact, is a return of emoluments paid and P.A.Y.E. deducted for the year 1998. It is a form which all employers are required to supply to employees for the purposes of their income tax returns. This form names Martha Castle of Jasmine Drive, Red Hill, D’Abadie, as the employee; it names Gerizim Farms Limited of Mausica Road D’Abadie as the employer, it indicates her Employee’s NIS Number as #040083379 and the Employer’s File Number as BO 697-002 and the Employer’s N.I.S. Number as R21176. It also shows that for the year 1998, the worker was employed for twenty-two weeks and her remuneration before deduction was eight thousand, three hundred and twenty-one dollars and fifty cents [$8,321.50]. It also shows NIS deductions and Health Surcharge deductions for a period of ten weeks.
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On the basis of the evidence before this Court, we are satisfied that the worker was employed by Gerizim Farms for thirty-five years; that she was forced to be absent from work at the end of her vacation leave for the purposes of receiving medical treatment for injuries sustained in the course of her employment, for which it appears to this Court that the Employer, in accordance with the provisions of the common law, would most likely be liable; and that the Company eventually refused to acknowledge that she had ever been in its employ.
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Having regard to these circumstances, this Court is satisfied that the worker’s employment with the Company was terminated in a manner that was harsh, oppressive and certainly contrary to good industrial relations principles and practices and moreover, that the Company’s treatment of the worker was quite callous.
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We are therefore of the opinion that she is entitled to substantial damages. Had she been retrenched by the Company under the provisions of the Retrenchment and Severance Benefits Act, 1985, she would have been entitled to severance pay, based on a weekly wage of five hundred and twenty dollars [$520.00] [which is slightly less than her actual wage] of fifty-two thousand five hundred and twenty dollars [$52,520.00]. However, we are dealing here with damages for harsh and oppressive treatment and it is our opinion that the worker is entitled to damages in the sum of seventy-five thousand dollars [$75,000.00].
We therefore order Gerizim Farms Limited to pay the worker Martha Castle, damages in the sum of seventy-five thousand dollars [$75,000.00]. This sum to be paid not later than the 13th April, 2000.” (Emphasis by me – DPM)
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C.?????????????? In TRADE DISPUTE NO. 130 OF 2000, delivered on February 8th 2002, in the Industrial Court between COMMUNICATION WORKERS’ UNION and UNITED ELECTRICS LTD (CORAM: LUTCHMEDIAL, REGIS & ABERDEEN), the Court held that it was a CONSTRUCTIVE DISMISSAL for a company to refuse to offer lighter duties to an employee who was injured on the job. In this regard, the following two (2) quotations will be instructive:
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(Page 2)
“… The worker was employed by the Company as an Electrician sometime in the month of February 1992. Sometime in 1995 whilst carrying out work as a Senior Apprentice on behalf of the Company at one of its client’s premises at Republic Bank Ltd., Park Street, Port of Spain, the worker sustained an injury to his back. He reported the injury to his supervisor Mr. Thornhill and to Mr. Clyde Herbert, a Director of the Company. He also visited a doctor who informed him that the injury was to his spine. The doctor gave the worker some sick leave, which was submitted to Clyde Herbert. The worker further testified that Clyde Herbert asked him to purchase the medication and bring the bill to the Company, which he did, but it was not reimbursed. On September 2 1999 the worker after visiting the doctor over a period of time, gave a letter “Exhibit MT 1” from the doctor to Clyde Herbert stating, inter alia, that the worker cannot continue doing strenuous work.” (Emphasis by me - DPM)
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(Pages 7 to 11)
“… The Court accepts the testimony of the worker that HE SUSTAINED AN INJURY WHILST IN THE COURSE OF THE PERFORMANCE OF HIS DUTIES ON BEHALF OF THE COMPANY. The Company’s witness acknowledged that he had heard that this worker had sustained an injury on some project. As a caring and concerned employer as Clyde Herbert portrayed the Company to be before this Court, we find it extremely unbelievable that no enquiries were made to ascertain the nature of the worker’s injuries and the place and time when they were sustained. Mr. Herbert stated quite clearly when asked if he had any reasons to doubt that the injuries were suffered on the job, “well, I’m not for or against”. Again, when asked by the Court if he was saying that the worker never submitted a medical report that he sustained an injury to his back whilst working at Republic Bank, Herbert replied “No, I am not saying that. I cannot recall. I am not aware …” It is therefore patently clear to this Court, that the Company through its witness cannot say that the worker did not suffer the injury during the course of his employment.? ?
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It is also clear that a question of simple fairness is what is involved here as well. The worker sustained an injury while doing his duty to the employer as a result of which he could no longer perform that duty: he became physically incapacitated by the injury. He ought not to suffer oppression because of it. The employer ought to treat him fairly and with compassion and concern for his welfare. If he is no longer able to do his own job, HE OUGHT TO BE OFFERED REASONABLE ALTERNATIVE EMPLOYMENT if possible, or be discharged on grounds of medical incapacity and PAID SOME REASONABLE COMPENSATION WHICH TAKES INTO CONSIDERATION HIS PAST SERVICE AND FUTURE LOSS.
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We have had the opportunity to hear the testimony of Mr. Herbert for the Company and to observe his demeanour in the witness box. Mr. Herbert was always evasive in his answers to questions that were put to him. Throughout his evidence he was unable to give definite and firm answers. His testimony was circulatory in nature.
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We therefore find and so hold that the worker did sustain the injuries complained of in the course of his employment. The Company had stated that an offer of alternative employment was made to the worker. The worker denies this. Even if it was so, the worker was free to accept or reject such offer if he felt he did not possess the necessary skill and competence for the position allegedly being offered. A worker should not be forced to accept employment for which he is not competent or suited or which may contribute to aggravating his injury.
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We find that upon his return to work following his sick leave, the worker was not asked to resume his normal duties nor did the Company offer any REASONABLE ALTERNATIVE EMPLOYMENT to him.
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?The employer’s conduct amounted to procrastination. In short, he was giving the worker “a run around”. Although he promised to do so, he never communicated with the worker about his resumption to work or his continued employment in the Company.
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We also find and so hold that the Company’s refusal to provide work for the worker amounted to a reputation of his contract, a repudiation which he accepted. The termination of the contract of employment by the worker constituted a dismissal since he was entitled so to do as a result of the Company’s conduct.
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It is clear that no particular form of words is required to amount to a dismissal. Indeed, express words are not even required, as dismissal may be proved by evidence of the Company’s conduct. The mere refusal to allow a worker to perform the specific duties for which he was hired is sufficient to constitute dismissal. IT WAS A CONSTRUCTIVE DISMISSAL. The conduct of Clyde Herbert, a Director of the Company was not only unreasonable but amounted to a breach of the contract of employment. See Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 where Lord Denning MR said: ??
“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say that he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once.”
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Further, the implied duty of trust and confidence of the Company was breached. The Company has a duty to behave reasonably towards the worker. The worker presented himself for work but was denied the opportunity so to do.
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The Company should not without reasonable and proper cause conduct itself in a manner calculated and likely to destroyed seriously damage the relationship of confidence and trust between itself and the worker. The term “not to undermine trust and confidence” is wide enough to include thoughtless behaviour. See Mahmud v Bank of Credit and Commerce International SA [1997] IRLR 462 and Brown v Merchant Ferries Ltd [1998] IRLR 682. We find that the behaviour of the Company’s official was both inconsiderate and thoughtless.
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The worker has indicated that he is no longer interested in working for the Company. The Court therefore will not make an order for reinstatement.
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By section 10 (3) of the Industrial Relations Act the Court is mandated to make such an order or award as it considers fair and just, having regard to the interests of the persons immediately concerned and the community as a whole and to act in accordance with equity, good conscience and the substantial merits of the case before it, having regard to the principles and practices of good industrial relations.
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We find and so hold that the actions of the Company and its officials amounted to a constructive dismissal of the worker and that the worker was dismissed in circumstances which were harsh and oppressive and not in accordance with the principles of good industrial relations practice.” (Emphasis by me – DPM)
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D.?????????????? The outcome of TRADE DISPUTE NO. 82 OF 2004, delivered on April 20th 2007, in the Industrial Court between OILFIELDS WORKERS’ TRADE UNION and NESTLE TRINIDAD AND TOBAGO LIMITED (CORAM: SEALE, ABERDEEN & MAHABIR), is a convincing example of the revolutionary development on how an employee should be dealt with if his health problems include being INJURED ON THE JOB. The following two (2) quotations will reveal why the Court moved towards reinstatement under the merits of the case:
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(Pages 4 to 6)
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“ISSUE
Based on the facts and the evidence the Court is called upon to determine whether the Company’s decision to terminate the worker’s services in circumstances which the worker claimed were for the most part related to his state of health was harsh and oppressive and / or not in keeping with the principles of good industrial relations practice.
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ANALYSIS
The Worker’s testimony was that he began to experience chest pains in 1999 and they got worse in 2001 and 2002. They were most intense in 2001. In March 1999, the worker was referred by the Company doctor, Dr. Ackbar, to Dr. Ince, a Consultant Physician and Cardiologist. However, nothing was found to be wrong with his heart.
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The medical certificates tendered into evidence showed that over the period January 2001 to June 2002, the worker was diagnosed as suffering from a number of ailments including, mild asthmatic attack; muscular spasms; viral illness; acute gastro enteritis; migraine headache and peptic ulcer. Finally, in about June 2002 he said he was diagnosed as suffering from GERD.
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Minutes of a Meeting held on November 25, 2002, the day prior to the worker’s dismissal, in so far as is material, states:
“This meeting was called to discuss Roland Walters, his attendance, punctuality, overall approach and attitude towards his job.
… Walters’ record was enumerated for those attending the meeting.
… Walters was given an opportunity to explain why his record was like that. He sought to explain that he suffers from migraine headaches. It was noted that this was never communicated to management.”
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The worker testified that by the time the meeting was held he was already diagnosed as suffering from GERD and he indicated that in the meeting he showed those present his medication but no heed was paid to what he said.
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The Company’s only witness Mr. Wayne Doopan (“Doopan”) who was the Company’s Operations Manager at the material time, disputed that the Company had knowledge that the worker suffered from migraine. When faced with the evidence of a medical certificate for two days’ sick leave on account of migraine he suggested that that was not sufficient to say that the worker was a chronic sufferer of migraine. In its letter of July 12, 2002, to the worker, the Company stated:
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“… On Thursday 27th June 2002, you were rostered to work on the 6.00 am to 2.00pm shift. You arrived at 10.39am. You called Neville Rodriguez (a porter) on his cell phone at around 9:45am letting him know that you had a migraine headache and if he can inform the Supervisor on shift, since you could not get through to the Warehouse phone.”
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With respect to the worker’s tardiness, the Company submitted a compilation of the worker’s timekeeping from April 10th 2002 to November 15th 2002 as recorded on the one hand by the worker and on the other by the Company’s Security personnel. That document showed certain discrepancies in the times the worker recorded him as arriving and leaving the compound with the times the Security personnel recorded him as arriving and leaving. On most occasions he recorded arrival times three to four minutes earlier than that recorded by Security with the greatest discrepancy being twelve minutes. In terms of departure, on many occasions, especially on the 2.00 p.m. to 10.00 p.m. shift the worker’s recorded time of departure was 10.00 p.m. while the Security log had him leaving much earlier.
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The worker’s explanation of the discrepancy in arrival was that the clock he used to ‘clock in’ was different from that used by the Security and that the clocks were not synchronized. With regard to the differences in departure times, he said that particularly on the 2.00 p.m. to 10.00 p.m. shift, the work was performed on a task basis so that whenever all the work was completed the entire shift, including the Shift Supervisor, would go home but they would all record the regular stopping time of 10.00 p.m. This explanation was borne out by the Daily Attendance Register for the Distribution Warehouse which showed that on a number of occasions when the worker left early the other workers on his shift, including the Supervisor, who at that time was Mr. S. Anirudh left at similar times. The practice of leaving early while recording the regular knocking off time appeared to be one which Doopan was unaware.
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The Company also submitted the Worker’s Punctuality from July 16th to November 15th 2002, which recorded him as being late for a total of 611 minutes on forty-three separate occasions. Fifteen of those times the employee arrived between one to five minutes late; ten times between six to ten minutes late and on November 8th when the employee reported twenty minutes late for the 2.00 p.m. shift, he had worked a double shift from 2.00 p.m. on November 7th to 6.00 a.m. on November 8th to assist in clearing up a backlog that was created by flooding.
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The worker was a senior employee in his department and the Company was concerned that he was not setting the right example. Generally, it considered that his attendance affected the Company’s operations.” (Emphasis by me – DPM)
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(Pages 8 to 10)
“THE COURT’S FINDINGS
1.???????????????? The Company disregarded the worker’s explanations that his absences and tardiness were related to his medical complaints.
2.???????????????? There was sufficient evidence before the Company by way of the medical certificates to suggest that the worker’s explanations should have been taken seriously.
3.???????????????? At the very least as an enlightened employer the Company should have referred the Worker for a medical examination to determine his fitness to continue in its employ.
4.???????????????? Many of the ailments for which the Worker submitted medical certificates were consistent with the symptoms of both migraine and GERD.
5.???????????????? Management was aware that the worker had suffered from migraine and that it affected his attendance and punctuality on at least two occasions prior to his dismissal but failed to acknowledge that as a fact when deciding upon the Worker’s discharge.
6.???????????????? The Worker’s lateness and absenteeism became an issue around 2001 when he said his suffering from GERD was most severe.
7.???????????????? The Worker’s record of absenteeism though less than exemplary was not excessive in the circumstances. In 2001 he took twenty two days sick leave, seven days in excess of his entitlement.
8.???????????????? The Worker’s 2002 sick leave record showed an improvement over that of 2001 by seven days.
9.???????????????? After mid-year 2002, he took two days sick leave compared to the twelve days up to June that year.
10.???????????? The Worker’s departure times on the 2.00 p.m. to 10.00 p.m. shift were generally in keeping with those of the whole shift.
11.???????????? The Worker’s punctuality between July and November, 2002 was unsatisfactory.
12.???????????? The Worker was warned about his punctuality and attendance prior to dismissal and then the ultimate sanction of dismissal was applied. In instances of this type of dismissal, a progressive approach to discipline should be used. In keeping with this approach suspension would have been the next step.
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DECISION
On the whole of the evidence we find that the Company did not take the Worker’s overall record into account in disciplining him. His performance appraisal was good. Over his sixteen years with the Company, he participated fully in the Company’s activities, leading the football team for a number of years. He showed initiative moving from a position of Porter to that of Warehouse Co-ordinator and had acted as Warehouse Supervisor on a number of occasions. He was committed as demonstrated by his willingness to work a double shift in a time of crisis and then report for his regular shift with a break of only eight hours. He put forward medical reasons which could have been shown to be genuine or not by medical examination. Additionally, the worker was INJURED ON THE JOB IN OCTOBER and dismissed while possibly still suffering the effects of the injuries he sustained. We note, however that the worker’s attitude to Management may have contributed to its less than sympathetic approach to his health challenges.
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We find that the Company’s decision to terminate the worker’s services on all the circumstances of the case to be harsh and oppressive and contrary to the principles and practices of good industrial relations.
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THE COURT’S ORDER
We are empowered under section 10 (4) of the Act to order the re-employment or reinstatement of a worker subject to such conditions as the Court thinks fit to impose. We consider it fair and appropriate to order the Company to reinstate the worker in his former or similar position without loss of seniority, pension rights and other non-monetary benefits to which he was entitled prior to the termination of his services. With regard to the salary, allowances and other monetary payments which he would have earned over the period, we order the Company to pay the Worker seventy-five percent (75%) of his entitlement. Reinstatement as well as payment of monies owed to be effected on or before May 7, 2007.” (Emphasis by me – DPM)
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E.??????????????? ESD NO. 35 OF 2007, delivered on July 7th 2009, in the Industrial Court between OILFIELDS WORKERS’ TRADE UNION and TRINIDAD AND TOBAGO ELECTRICITY COMMISSION (CORAM: DONALDSON-HONEYWELL, RAJKUMAR-GUALBANCE & HARRIGIN), is another landmark judgment which has examined the need for an employer to offer reasonable alternative employment to an employee who was INJURED ON THE JOB and reinstatement without loss of benefits was deemed to be quite appropriate under the circumstances. The following three (3) quotations are quite useful to do justice to the intent of this article towards the enlightenment of all readers:
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(Pages 2 to 3)
“Trinidad and Tobago Electricity Commission [“the Employer”] recruited Ms. Karen John as an apprentice in July, 1986. She was trained and assigned to duties as a linesman, eventually progressing to the position of Linesman C. The job entailed the provision of technical support in the construction, reconstruction and maintenance of overhead lines and associated equipment. It also involved strenuous physical exertion in digging holes, climbing poles and moving heavy equipment. On September 23, 2005, Ms. Karen John [“the Worker”] sustained a back injury in the course of carrying out these duties. It was raining that day and she slipped and fell while taking a ladder off the Employer’s truck to carry it to a pole that needed repairs.
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The Worker’s employment with the Employer was terminated effective January 17, 2007, on grounds of ill-health. The Oilfields Workers’ Trade Union [“the Union”] acting on the Worker’s behalf took issue with this “forced retirement” and the matter was reported as a Trade Dispute on February 12, 2007.
The Claim
The Union contends that the Employer failed to give any consideration to redeploying the Worker in another department, namely the Telecom Department, before effecting her forced retirement. It is argued that in these circumstances the said retirement and “the manner employed is contrary to the principles of good industrial relations practices.” The Union’s claim is for “the worker’s reinstatement / redeployment” effective January 17, 2007.
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The Employer’s response to the Union’s claim is that the retirement of the Worker on the grounds of ill-health was justified because she had been assessed as “having fifteen percent [15%] Permanent Partial Disability;” and was unable to perform many of the duties of a Linesman C.
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While recognizing that the Worker had been assessed as fit to perform lighter duties the Employer further argues that:-
“A review of the job environment at the Commission in an attempt to redeploy the worker disclosed that there is no suitable position in which the worker can be redeployed given her present condition, qualifications and experience.”
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(Page 6)
“The Issues
In the context of agreement on the applicable principles of good industrial relations practice as well as on much of the factual background, the sole issues to be determined are
(1)???????????? Whether the Employer in fact conducted such consultations and searches as were needed in order to explore possible alternatives to forced retirement.
(2)???????????? Whether the Employer had reasonable basis to be satisfied that there was no redeployment alternative.
In essence there was, as submitted by the Union’s representative, a heavier onus on the Employer “to really show why they had no other option,” than forced retirement.”
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(Pages 14 to 18)
“Findings
The Employer’s contention that a thorough examination was conducted before determining that there was no alternative employment for the worker WAS NOT SUPPORTED BY THE EVIDENCE. On the evidence before this Court, the Employer failed to take into account the fact that the Telecom Department had been utilized in providing light duties for injured employees.
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The jurisprudence of the Industrial Court has not recognized a duty on the part of Employers to allocate duties in every case where injury is suffered. Where the injury does not arise in the course of employment there is no strict obligation. Each case turns on its own facts. IN THIS CASE THE INJURY DID ARISE IN THE COURSE OF EMPLOYMENT.
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The option of placing the worker in the Telecom Department is one that ought to have been considered in the context of the Employer’s established practice and in keeping with the need to treat reasonably with the Worker before forcibly retiring her.
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The Court’s further finding is that an inconsistent subjective “yardstick” and requirements informed the Employer’s position that the Worker could not perform satisfactorily as a Telecom Operator. The Court therefore holds that the Employer did not give due consideration to this redeployment option.
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In the circumstances of this case, a fair and reasonable approach should have included a balanced assessment by the Employer of the Worker’s entire employment situation. This ought not to have overly focused on her 2003 interview results.
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The Court cannot accept that the Employer could properly have relied, in 2007, on the 2003 interview results to justify the view that the Worker was unsuitable for placement as a Telecom Operator.
In 2003, the Worker was not informed of her scores such that she could have made efforts to improve her prospects for future selection. It would have been within her control to reduce, for example, her average times late per month from one day to zero days. This would have represented a three-point improvement based on this 2003 assessment criterion.
Even in the absence of such notification, it is not logical that the Worker would have been indefinitely disqualified based on the 2003 interview. There was no evidence that Mr. Alleyne, who made such findings, analyzed her interview scores before coming to this position. Under cross-examination, he revealed that he had not seen the scores until after the Worker’s forced retirement.
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A finding that the 2003 interview results indefinitely disqualified the Worker also unreasonably rules out the likelihood that, with identification of her training needs, her standing in many of the criteria may have improved. The Employer has knowledge, at least from April 2006, of the Worker’s willingness to work as a Telecom Operator. A full assessment of her employment situation before retiring her on grounds of ill-health should have included looking at whether she could be trained to be more suitable for the position.
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The Worker was on stand by at the work place from August 2006 to January 2007. There could have been consultation with her on her training needs. This approach would be well within the Employer’s established practice. The uncontroverted evidence was that Mr. Betancourt and the two clerks selected by Mr. Alleyne were placed first as trainees in the Telecom Department.
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It is recognized that the 2003 interview was not the sole basis for the Employer’s decision that the Worker was unsuitable for redeployment as a Telecom Operator. The Court holds however, that the evidence relied upon by the Employer to prove that her present condition, qualifications and experience were fairly considered was not credible. There was no cogent evidence to prove the Worker’s alleged lack of basic information, poor work attitude and disrespectful treatment with management. These were views of Mr. Alleyne BASED ENTIRELY ON HEARSAY.
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In order for these to have been relied upon to the prejudice of the Worker there ought to have been some documentation. The adverse findings should also have been disclosed to her in a timely manner before the forced retirement decision was taken. This would reasonably have allowed her some “say in the matter.”
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There was no credible evidence to support the contention that an R.I.C. directive was persuasive in the determination by the Employer not to redeploy the Worker.
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The Employer’s evidence that the Worker could not work as a Telecom Operator because she was “afraid to work shift” was again BASED ON UNCORROBORATED HEARSAY. This is an example of a factor in relation to which, IN THE CIRCUMSTANCES OF THIS CASE, CONSULTATION WITH THE WORKER WOULD HAVE BEEN REQUIRED TO MEET THE INTEREST OF FAIRNESS. Additionally, the Worker ought to have been consulted, if as alleged, the Employer had considered redeploying her as a Meter Reader.
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The Court’s finding overall is that the Employer’s approach when considering forced retirement of the Worker on ill-health grounds was not fair and reasonable to her. In the circumstances, the forced retirement of the worker amounted to a dismissal in circumstances that were harsh and oppressive and not in keeping with good industrial relations practices.
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Decision
Having duly considered the evidence and submissions herein and in exercise of the mandate under Section 10 (3) of the Industrial Relations Act Chapter 88:01, we consider it fair and just that this severed employment relationship be restored. By virtue of section 10 (4) of the Industrial Relations Act, it is therefore directed that the Employer re-instate the Worker. The conditions of the said reinstatement are that:-
(1)???????????? The re-instatement is to take effect as at January 17, 2007 with no loss of benefits.
(2)???????????? The Worker’s re-instatement is to be effected in the Employer’s Telecom Department in the position of Telecom Operator and with the appropriate orientation to the work of the Department and her specific duties and responsibilities.
(3)???????????? The Worker will forgo acceptance of pension benefits until retirement.
(4)???????????? The Worker should be considered for any opportunities as may arise in the normal course of her employment.”
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F.??????????????? TRADE DISPUTE NO. 312 OF 2011, delivered on October 23rd 2015, in the Industrial Court between OILFIELDS WORKERS’ TRADE UNION and UNILEVER CARIBBEAN LIMITED (CORAM: SEALE, RABATHALY & KHAN), is another landmark judgment dealing with the medical boarding of an employee who was injured on the job. The following three (3) quotations will enhance our appreciation on what is required under good industrial relations principles and practices when dealing with ill-health that was caused by the place of employment:
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(Pages 1 to 2)
“1.???? In this trade dispute between the Oilfields Workers’ Trade Union the recognized majority union (“the Union / RMU”) and Unilever Caribbean Limited (“the Employer / Company”) the Court has to determine whether the termination of services of Thaddeus Thomas (“the Worker”) by letter reportedly dated September 22, 2010, was harsh, oppressive and contrary to the principles and practices of good industrial relations. The Worker was retired on medical grounds effective October 15, 2010.
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2.?????? The Court had the benefit of written statements of Evidence and Arguments from both parties and evidence, including medical reports on the Worker. The Worker testified for the Union and Doctors Haqq and Lousaing, as well as Mr. Wayne Forde, Human Resources Business Partner, Supply Chain, testified for the Company.”
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(Pages 10 to 12)
“Issues
32. ??? The issue for the Court’s determination is whether in terminating the Worker’s employment on medical grounds, the Company was guided by the principles of good industrial relations practice, that is to say, that THE WORKER WAS CONSULTED and the matter was discussed with him, that the Company took steps to discover the true medical position and also EXPLORED ALTERNATIVE EMPLOYMENT.
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Finding of Fact
33.???? The Worker sustained an injury to his left wrist on February 7, 2007. His dominant hand is his right hand. His early medical treatment following the injury included an x-ray but no MRI scan. After a period of light duties, the Worker returned to his normal duties, the exact date of which is unclear but it appears that it was before July 3, 2007, when he was cleared to do so by Dr. Lousaing. He began experiencing pain and discomfort and was sent for an MRI scan which detected injuries for which surgery was recommended.
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34.???? His follow up treatment after surgery included physiotherapy. He did not receive all of the recommended sessions for reasons which included the COMPANY’S FAILURE TO PAY. Dr. Lousaing stressed that physiotherapy was important for the Worker’s rehabilitation after surgery. The Union’s intervention led to the resumption of physiotherapy and thereafter, the Union played a major role in the matter.
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35.???? The Worker developed CRPS and along with the intermittent nature of his physiotherapy prolonged his recovery after surgery. In November 2008, he was assessed as having fifteen percent (15%) PPD of his left wrist.
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36.???? In December 2009 two years after his surgery he was cleared by Dr. Lousaing to return to his substantive duties. However, he was not issued a fit to work certificate by Dr. Haqq which was a precondition for his return.
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37.???? There were two recommendations by the Company to retire the Worker on medical grounds, the first on June 4, 2009 and the second in September 2010. The Company did not act on the first recommendation.
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38.???? With the concurrence of the Union, the Company looked into the possibility of assigning the Worker to alternative duties. It concluded based on a report from Dr. Haqq and also from Dr. Lousaing that the alternative jobs were not suitable. The Worker was not consulted directly about any of the alternative jobs nor was he present when they were evaluated. His termination on medical grounds dated October 18, 2010, was effected by letter addressed to the Union.”
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(Pages 13 to 18)
“Termination of employment on medical grounds
41.???? The Courts have held in cases of dismissal on medical grounds that as stated in East Lindsey District Council (appellants) v. G.E. Daubney (respondent), [1977] IRLR, 181 at 182, a case referred to in the authorities cited by the Company that:
“the decision to dismiss or not to dismiss is not a medical question, but a question to be answered by the employers in the light of the available medical evidence.”
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42.???? Regarding the appropriate steps to be taken by an employer, after reviewing some authorities Phillips J. stated in the East Lindsey case supra, that:-
“… Unless there are wholly exceptional circumstances, before an employee is dismissed on grounds of ill health it is necessary that he should be consulted and the mater discussed with him and that one way or another steps be taken by the employer to discover the true medical position.”
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43.???? The Judge declined to lay down detailed principles to be applied in each case but indicated that if employers adopted such an approach it will be found in practice that all that is necessary has been done.
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44.???? While there is no rule that an employer is obliged to create a special job for an employee; neither is there a rule of law that the employer is not obliged to find other work. Each case must depend on its own facts.
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Analysis and Findings
Consultation with the Worker
45.???? In this case there is no evidence of consultation with the Worker prior to the Company taking a decision to terminate his employment on medical grounds. There was undoubtedly involvement by the Union which enjoys the status of RMU for the bargaining unit to which the Worker belonged. It is through its intervention, the Court was told that the Worker was able to have his physiotherapy continued after some failure by the Company to pay the therapist. Phillips J. in the East Lindsey case supra stated that if there is no consultation “… Only one thing is certain, and that is, that if the employee is not consulted, and given an opportunity to state his case, an injustice may be done.”
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46.???? The Company’s representative acknowledges the Company’s failure in that regard but places the blame squarely at the doors of the Union whom he says ‘estopped’ the Company from treating with the Worker directly.
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47.???? The Court is unable to accept that excuse as reasonable. The Union’s status could in no way preclude the Company from keeping the Worker informed and involving him in what were important decisions which affected his livelihood, especially since his injury was sustained in the course of his duties. The Worker was not present for the assessment of alternative jobs and so the Company did not have his opinion on his ability to perform those jobs. The Company’s disregard for consulting the Worker also extends to the in which it eventually terminated his services. The Company wrote to the Union and not to him. While it may have been appropriate to inform the Union as the RMU that could not take the place of informing the Worker himself.
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48.???? The Court finds that the Company failed to consult the Worker and keep him abreast of its intentions to retire him on medical grounds. He was not consulted at all on such a life changing decision and in effect was denied the opportunity to be heard, contrary to the principles and practices of good industrial relations.
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Steps taken to discover the Worker’s true medical position
49.???? In its closing submissions the Union raised a provision of the collective agreement between the parties which falls under Article 19, Sick Benefits. The Court’s understanding is that where there is a difference of opinion between the Worker and the Company on the findings of the Company’s Medical Officer, the matter shall be referred to an Independent Medical Practitioner mutually agreed upon between the Company and the Worker.
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50.???? In this instance there was a difference of views. The Worker provided a medical opinion from Dr. Lousaing on two occasions post surgery that he was fit to resume his duties but Dr. Haqq did not issue the fit to work certificate without which the Worker would not have been allowed back on the job. In this situation, the provisions of the collective agreement, which are consistent with the generally accepted principles in such instances, should have been applied. The fault lies at the doors of both the Company and the Union as parties to a collective agreement. By failing to refer the Worker to an Independent Medical Practitioner the Company did not take the necessary steps to discover the Worker’s true medical position.
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51.???? The Company seeks to place blame on the Worker for not reporting to work when Dr. Lousaing declared him fit to so do. However, consistent with the Worker’s testimony, Dr. Haqq admitted in his evidence that the Worker was never issued a fit to work certificate by him. Even more damning is the fact that the evidence shows, the Worker’s post operative recovery was hampered by the Company’s failure to pay the physiotherapist consistently.
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52.???? The Court finds that the Company failed to follow the provisions of the collective agreement to have an Independent Medical Practitioner assess the condition of the Worker before it retired him on medical grounds, contrary to the principles and practices of good industrial relations.
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Alternative Employment
53.???? To the Company’s credit it made attempts to find alternative employment for the Worker and it appears that its efforts were with the knowledge and concurrence of the Union. However, its attempts did not involve the Worker.
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54.???? Additionally, Dr. Haqq in his report on the evaluation of job positions in reference to a report from Dr. Lousaing, indicated that the doctor stated that the Worker “should not be required to perform tasks which involve loading of the right wrist (the dominant hand) and repetitive motion of the hand.” That statement was not borne out by the evidence. While the Worker’s dominant hand was indeed his right hand, it is his left hand that was injured and Dr. Lousaing’s report in so far as they referred to restrictions in the Worker’s activities were confined to his left wrist. If in fact Dr. Haqq proceeded to evaluate jobs on the premise stated in his report he would have begun on an incorrect basis and his conclusions that there were no suitable alternative jobs would be flawed and unreliable.
Conclusion
55.???? On the totality of the evidence the Court finds that the Company failed to consult the Worker and discuss its intention to retire him on medical grounds prior to taking that step. In the face of a difference of views between Dr. Lousaing who cleared the Worker to return to work and Dr. Haqq who was not of that view, the Company failed to follow the provisions of the collective agreement and obtain the opinion of an Independent Medical Practitioner. While the Company explored alternative employment it did not involve the Worker and its attempts may have been compromised.
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56.???? For the reasons stated herein we find that the Worker’s dismissal was harsh and oppressive and contrary to the principles and practices of good industrial relations.
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The Court’s Award
57.???? The Court has given careful consideration to the relief sought by the Union to reinstate the Worker. However, in the circumstances of this case, especially since the Worker has now been off the job for roughly eight (8) years, the Court considers that an award of damages, in lieu of reinstatement best meets the justice of this case.
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58.???? We order the Company to pay the Worker, Thaddeus Thomas, the sum of three hundred and fifty thousand dollars ($350,000.00) as damages for his dismissal, on or before November 20, 2015.”
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G.?????????????? The final case which I wish to refer to whereby an employee suffered ill-health due to a job-related injury is TRADE DISPUTE NO. GSD-TD NO. 475 OF 2015, delivered on February 11th 2021, in the Industrial Court between BANKING INSURANCE AND GENERAL WORKERS’ UNION and CITIBANK (TRINIDAD AND TOBAGO) LIMITED (CORAM: SEALE, RABATHALY & MITCHELL). The following three (3) quotations will be self-explanatory and corroborative of my line of argument in this article:
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(Page 2)
“1.???? In this trade dispute between the Banking Insurance and General Workers Union, (“the Union”) and Citibank (Trinidad and Tobago) Limited (“the employer / Bank”), the Union raised a claim over the dismissal of Mr. Clinton Bissoon, Senior Bulk Teller, (“the Worker”) by letter dated June 24, 2014. The dispute was certified by Minister of Labour and Small Enterprise Development Certificate of Unresolved Dispute dated November 24, 2015. The grievance concerns the dismissal of the Worker on medical grounds.
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2.?????? At the time the Worker’s employment was terminated, he had worked for approximately twenty-four (24) years. For the first ten years he was a Messenger but was terminated in December 1999 and paid for those years of service. In January 2000, he was rehired by the Bank as a Teller and promoted around 2003 to Senior Clerical Bulk Teller. His salary in 2014 was seven thousand seven hundred and ninety-nine dollars ($7,799.00) per month.”
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(Pages 12 to 18)
“Issue for Determination
32.???? On the facts of the evidence, the Court has to determine whether the Bank’s termination of the employment of the Worker on medical grounds was in keeping with good industrial relations practice.
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Legal Principles
33.???? The jurisprudence in the area of dismissal on grounds of ill-health shows that there are some basic considerations to which employers should have regard. These include the length of the employment relationship, the length of time it was expected to continue, the nature of the job, the nature, effect and length of the illness, the need of the employer to have the job done and any replacement and in all of the circumstances could a reasonable employer have been expected to wait any longer.?
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34.???? Before the decision is made, the employer should make all necessary enquiries from the employee, his doctor and if necessary, from the employer’s medical advisers. (East Lindsey District Council v Daubney).
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35.???? In the case of termination of employment after injuries sustained on the job, this Court has generally followed the principles applicable to cases of termination on medical grounds as stated above. As in all cases of termination of employment of a worker, whether or not on medical grounds, the Court has regard to the principles and practices of good industrial relations.
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36.???? In Trade Dispute No. 102 of 1990 Oilfields Workers’ Trade Union and Hydro Agri (Trinidad) Limited formerly Federation Chemicals Limited a case cited by the Union, the Court found a worker’s dismissal to be harsh. The worker was injured on the job and then terminated for medical reasons. The Court found, among other things that the company adopted a wait and see attitude without exercising its undoubted right to require all relevant information. It failed to afford the worker an opportunity to be heard before its dismissal, the latest medical certificate constituted an admission that the worker was still in the course of being treated and no assessment had been made as to whether or not the worker had suffered any permanent disability.
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37.???? The Court found that the Worker had been terminated precipitately and in violation of the principles of good industrial relations practice. In lieu of reinstatement, the Company was ordered to pay damages of one hundred thousand dollars minus the sum of roughly twenty-two thousand dollars ($22,000.00) that he received as severance benefits.
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37.???? (sic) In ESD No. 7 of 1995 between the Oilfields Workers’ Trade Union and Trinidad and Tobago Electricity Commission, delivered on July 14, 1997, by H.H. Cecil Bernard, then Chairman of the Essential Services Division, the Court referred with approval, to the following position of the Employment Appeal Tribunal of England in the Daubney case supra at 571:-
“While employers cannot be expected to be, nor is it desirable that they should set themselves up as, medical experts, the decision to dismiss or not dismiss is not a medical question, but a question to be answered by the employers in the light of the available medical evidence.”
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38.???? The Court adopted that position as a proper statement of what is desirable as good industrial relations practice in such matters.
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39.???? In the said case H.H. Mr. Bernard also commented on the English case of Williamson v. Alcan (U.K.) Limited [1978] I.C.R. 104 and the following “practice” approved by the Employment Appeal Tribunal to the effect that:-
“Unless there are wholly exceptional circumstances, before an employee is dismissed on grounds of ill-health it is necessary that he be consulted and the matter discussed with him, and that in one way or another, steps should be taken by the employer to discover the true medical position … It is also necessary, because it seems reasonably fair and good practice that a man have a say in the matter. It is also necessary because, quite apart from the medical condition, his whole employment situation requires to be assessed and consideration of alternative employment taken into account.”
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40.???? It is generally accepted that there is no rule of law which requires the employer to create a special job for an employee who is ill, nor is there a rule that an employer is obliged to find alternative employment for an employee plagued by ill-health. Each case is to be judged on its own facts in light of the employer’s circumstances. As the Court said in the T&TEC case supra, its duty is to ensure that any course chosen by the employer is fair and reasonable to the worker.
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Analysis and Findings
41.???? The Company sought to paint a picture of negligence on the part of the Worker in seeking and pursuing the recommended treatment for his injuries. However, in the Court’s view, the evidence suggests that after the Worker’s injury on July 23, 2012, the Employer took a hands-off approach to his treatment. This is confirmed by the fact that the first time he was referred by the Insurance Company to a doctor was in January 10, 2013, roughly six-months after he fell. In his medical certificate Dr. Araujo, declined to give a permanent partial disability rating as the Worker had not had adequate management of his symptoms. Among other things, Dr. Araujo recommended that he be managed by a Pain Specialist and suggested Dr. Udit.
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42.???? Nine months after the accident on April 17, 2013, the Worker was seen by Dr. Udit. In his report dated April 23, 2013, Dr. Udit agreed with Dr. Araujo that a permanent partial disability rating could not be given at that stage as the Worker did not receive care he deserved. He strongly urged the relevant authorities to provide the financial backing so that he could obtain the best care possible and put the ball in the court of the Bank and / or the insurance company, to provide the wherewithal for the Worker to continue to be treated by him. No such steps were taken and the Worker was left to fend for himself.
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43.???? The Bank’s excuse is that there was a medical insurance plan that the Worker could have availed himself of and it quickly pointed out that it continued to pay the Worker for his sick leave for the two years he remained on sick leave. The Court finds the Bank to be misguided for a number of reasons. FIRSTLY, the Worker should not have been on sick leave but injury leave as there was no dispute that he fell and was injured on the Bank’s premises. The Bank had a duty both at common law and by statute (the Occupational Safety and Health Act, Chapter 88:08) to provide a safe place of work. The Worker should not be penalized for the Bank’s failure to have a policy on injury leave which is distinct from sick leave. ???
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44.???? SECONDLY, even if there was an insurance policy to cover costs of the Worker’s treatment, and no such satisfactory evidence was adduced, it was the responsibility of the Bank to inform him, preferably in writing, setting out clearly exactly what treatments were covered. If all of the treatment he required was not covered it would have been reasonable for the Bank to take up the slack. From Dr. Araujo’s and Dr. Udit’s reports such an approach would have facilitated his recovery and may have obviated the need for his prolonged absence from work.???
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45.???? The Bank shifted the blame to the Worker for failing to follow the treatment recommended for his recovery, including losing weight. It is also noted that in spite of the settlement he received he did not seek the treatment he needed. The Court notes that the Worker was ‘moderately obese’ as stated in most of his medical reports and it was also recommended that he would have benefitted by losing weight. However, that was the only part of the regimen recommended that he could have been said to be responsible for. However, even Dr. Udit’s treatment plan included supervised weight loss and a diet plan by a Dietitian, so even his diet and weight loss were to be monitored by a professional.
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46.???? Significantly, the Court settlement was in March 2014 and it is somewhat ingenious for the Bank to point to his failure to use that money for his treatment. The settlement came almost two years after his accident and a mere three months before his employment was terminated.
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47.???? The Court notes with great concern the fact that the medical certificate used for the termination of the Worker’s services was that of Dr. Araujo dated September 6, 2013, roughly nine (9) months before his dismissal. In that report as in Dr. Araujo’s earlier report, he declined to give a permanent partial disability rating because the Worker had not had the necessary treatment. Therefore, the Bank terminated the Worker’s services without the benefit of a diagnosis on the current state of his injuries or of a recent disability rating. The only disability rating was that of Mr. Stephen Ramroop, Consultant Orthopaedic and Trauma Surgeon who examined the Worker and issued a medical report on September 14, 2012, almost two years earlier, in which he was assessed at that time as having sixty-five percent (65%) permanent partial disability due to his injuries.
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48.???? The Court finds that the Bank terminated the services of the Worker without a recent medical certificate on the state of his injuries and in the absence of a recent permanent partial disability rating.
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49.???? Regarding consultation with the Worker, the Bank asserted that the Meeting of June 4th provided the opportunity for him to be heard. Whether the Court accepts that the Worker said that he would not be able to return to work in the foreseeable future or not, his word was only one of the factors on which the Bank should have relied. An up to date medical certificate on his condition was crucial in determining the status of the Worker’s injuries. It would also have informed the Bank on the feasibility of alternative employment for him. The Bank seems to have based its decision mainly on the length of time the Worker was off the job. While that was a valid consideration, in the absence of affording him the necessary treatment, it was unreasonable in the circumstances.
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50.???? For all of the reasons stated herein, the Court finds that the termination of the Worker’s services on medical grounds was harsh, oppressive and contrary to the principles and practices of good industrial relations.” (Emphasis by me – DPM)
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(Pages 19 to 20)
“52.?? In making its assessment of damages, the Court is not bound to follow any rule but may make an assessment which in its opinion is fair and appropriate.
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53.???? On the facts of this case, the Court finds it fair and appropriate to make an award of damages to the Worker. In so doing we have considered, among other things, his fourteen (14) years of service as a Teller, the manner of dismissal, the unlikely event that he will be employed in the future (he is now about fifty-seven (57) years of age) and the loss of pension benefits. The Court has also considered the Bank’s half of his High Court settlement.
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54.???? While the Worker first claimed payment for an Employee Savings, the Court finds that to be unsubstantiated and he admitted in cross-examination to making a withdrawal from the Plan. There is no merit in his claim for vacation leave which we also considered in the award of damages.
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55.???? The Court orders the Bank to pay to the Worker, Clinton Bissoon, the sum of three hundred thousand dollars ($300,000.00) as damages for his dismissal, on or before March 15, 2021.”
4.????????????? We Can Even Learn About The Fundamental Role Of Consultation From The Recent Ruling Of The Court Of Appeal Over The Processing Of ?ILL-HEALTH Which Is Linked to NON-JOB-RELATED CIRCUMSTANCES
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The recent landmark judgment from the Court of Appeal dealing with the medical boarding of a worker may guide the enlightened if they find the time to read the following quotations lifted from CIVIL APPEAL NO. P-279 OF 2017 (which appealed TRADE DISPUTE NO. 84 OF 2014), delivered on September 20th 2018, between TRINIDAD AND TOBAGO ELECTRICITY COMMISSION and OILFIELDS WORKERS’ TRADE UNION (PANEL: MENDONCA, RAJKUMAR & PEMBERTON):
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(Page 2)
“1.???? On July 11th, 2018 we dismissed this appeal and gave brief oral reasons for so doing. We now provide full written reasons for our decision.
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2.?????? This is an appeal by the Trinidad and Tobago Electricity Commission (the company) from the decision of the Industrial Court in a trade dispute between the company and the Oilfield Workers Trade Union (the union) concerning the erroneous retirement on medical grounds of Mr. Richard Ramjattan (the worker).”
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(Pages 7 to 10)
“21. ? The union, in its evidence and arguments, contended that the company wrongfully retired the worker on medical grounds and/or the process was flawed and/or the worker was denied natural justice in the decision and/or an independent medical panel of medical professionals was not convened. In essence, the union complained that the process of retiring the worker on the grounds of ill health was unfair and unjust and as a consequence not in keeping with good industrial relations practice.
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22. ??? The company contended in its evidence and arguments that the main issue to be decided was whether it had complied with the prescribed procedure in retiring the worker on the grounds of ill-health. The company submitted that it did not flaunt or disregard any of its procedures in relation to the worker’s retirement and further the decision to retire the worker was based on the report of the company’s medical adviser.
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23. ??? The Industrial Court identified the main issue for its determination to be whether the procedure used by the company to retire the worker on the grounds of ill health was fair and just and in keeping with good industrial relations practice.
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24. ??? The Court found that there was no evidence that the worker had a history of prolonged ill health, that the company did not make a genuine effort to give the worker an opportunity to function in the position of Telecom Operator or even more importantly to consult with the worker and/or the union about positions in the company which may have been more suitable. The Court also noted that the company seemed to have disregarded the worker’s nineteen years of service and treated him “in a less than humane manner”. The Court also found that the company’s decision to retire the worker was based on a medical report which was not as comprehensive as was required to make such an important decision on the “worker’s right to work”, that the worker was never consulted on a proposal to retire him on medical grounds and he was only informed of the company’s decision after it was already made by the company. In those circumstances the Court held that the company’s procedure in retiring the worker was inadequate and unfair and proceeded to award damages to the worker in the sum of one million dollars ($1,000,000.00).
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25. ??? The company appealed and in its notice of appeal it contended that the Industrial Court erred in law. The company therefore sought an order of the Court of Appeal vacating the order of the Industrial Court and that the union pay the costs of this appeal. The notice of appeal contained twenty two (22) grounds of appeal. However, at the hearing of the appeal, Mr. Scotland, counsel for the company, rested his case on six main submissions.
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26. ??? First, he submitted that the proceedings before the Industrial Court were a nullity as it was reported to the Minister outside of the six month period allowed pursuant to section 51(3) of the IRA for a trade dispute to be reported to the Minister.
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27. ??? The second submission made by Mr. Scotland, was that the Industrial Court erred when it rejected the company’s submission that the aggrieved person was not a worker within the meaning of the IRA and as such the Industrial Court lacked jurisdiction to entertain this dispute.
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28. ??? The third submission made by Mr. Scotland was in response to a submission of the union that this Court by virtue of section 10(6) of the IRA did not have the jurisdiction to hear this appeal. This section (which is reproduced later in this judgement) provides that the opinion of the Industrial Court that a worker has been dismissed in circumstances that are harsh and oppressive or contrary to the principles of good industrial relations practice shall not be challenged, appealed against, reviewed, quashed or called in question in any court on any account whatever. Counsel contended that the Industrial Court did not find that the dismissal was harsh and oppressive or contrary to good industrial relations practice so section 10(6) of the IRA was not relevant to this appeal.
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29. ??? Counsel’s fourth submission was that the Industrial Court erred in law by imposing on the company a legal duty to find alternative employment for the worker within the company.
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30. ??? Fifth, Counsel took issue with the Industrial Court placing reliance on Dr. Omardeen’s medical report rather than on Dr. Sieunarine’s medical report in coming to its conclusion. Mr. Scotland argued that the Court ought to have taken into consideration the fact that at the time of retiring the worker, the company had before it Dr. Sieunarine’s medical report and came to its conclusion based on that report.
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31. ??? Lastly, Mr. Scotland submitted that the Industrial Court ought to have subtracted the payment of $220,839.60 which was received by the worker when he was retired from the $1,000,000.00 awarded to him.”
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(Pages 19 to 22)
“53. ? Mr. Scotland took issue with what he determined to be errors of law made by the Industrial Court. We however view these alleged errors of law as manifestations of two things: they are either findings of fact, which are not appealable by virtue of section 18(2), or expressions of what the Court considered to be good industrial relations practice from which an appeal does not lie to this Court. This can be seen from the fourth and fifth submissions of Mr. Scotland. We shall consider the fifth submission first.
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54. ??? In that submission Mr. Scotland complains of the Industrial Court’s finding that the company ought not to have relied only on the medical report of Dr. Sieunarine. The Court was of the view that the company ought not to have relied solely on the opinion of Dr. Sieunarine. But here the criticism of the company’s reliance on the report seems to be on the basis that good industrial relations practice required that there should have been consultation and a collaborative medical report from both Dr. Sieunarine and Dr. Omardeen, who was a cardiologist, before any decision was made as to the medical condition of the worker to continue in the company’s employ. What constituted good industrial relations practice was a matter for the Industrial Court and cannot be reviewed by this Court. If we are wrong in saying that the Court’s opinion was informed by the principles of good industrial relations practice and the Court was of the view that the report of Dr. Sieunarine was not sufficiently comprehensive, that is a question of fact which it was open to the Court to find on the totality of the evidence and in any event, as it is a finding of fact, is not appealable.
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55. ??? Similarly in Mr. Scotland’s fourth submission he complains of the Industrial Court imposing a legal duty to find or procure alternative employment for the worker. This however is not a fair criticism of what the Court held. What the Court found in this regard is set out at paragraph 10.2 of the Courts’ judgment which is as follows: “The Employer has not convinced the Court that it made a genuine effort to give the Worker an opportunity to function in the Telecom Operator position or even more importantly to consult with the Worker and/or Union about other positions in the Company which may have been more suitable. The Employer seems to have disregarded the Worker’s nineteen years of service to the Company and treated the Worker in a less than humane manner.”
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56. ??? The Court was there saying that the company failed to consult with the worker and/or the union about other positions in the company. Mr. Scotland did not dispute the fact that there was no consultation. The Court was therefore correct to find as a fact that there was no consultation with the worker. But what the Industrial Court imposed on the company was not a duty to obtain alternative employment as Mr. Scotland contends, but a duty of consultation to find alternative employment. That too in the opinion of the Court was a matter which principles of good industrial relations practice required. It is not a matter that this Court can review.
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57.???? Lastly, with respect to the appeal against the quantum of the award made by the Industrial Court in favour of the worker, section 10 (5) is very clear, that:
“The Court is not bound to follow any rule of law for the assessment of compensation and the Court may make an assessment that in its opinion is fair and appropriate.”
And Section 10 (6), which we have referred to above, bars an appeal from an order for compensation or damages. So whatever view we may hold in respect of the award is immaterial because it is not a decision that this Court can enquire into, quash or review.
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58.???? The decision of this Court in Caribbean Development Company Limited v. National Union of Government and Federated Workers, Civil No. 83 of 2002 is relevant here. Sharma CJ at paragraph 23 page 12 stated:
“The Court of Appeal does not have jurisdiction to review orders for reinstatement even though such orders are not expressly ousted from the court’s jurisdiction by s. 10 (6). To construe s. 10 (6) as conferring such jurisdiction would amount to a flagrant violation of the object and purpose of the provision. More significantly, the principles applicable to the decision to reinstate indicate that the discretion to re-instate depends in large measure on determinations of fact …
[24] The overriding consideration in construing the ambit of s. 10 (6) must be the purpose of the provision. The Industrial Relations Act 1972 repealed and replaced the Industrial Stabilisation Act 1965 and is designed to make better provusion for the stabilization, improvement and promotion of industrial relations. Its object is the maintenance of sound industrial relations practices and the preservation of stable industrial peace. The Legislature conferred jurisdiction on the Industrial Court to ensure that these objects were achieved in employment relationships in this country.
[25] What is of critical importance is the fact that in addition to conferring this jurisdiction on the Industrial Court, the Legislature expressly ousted the Court of Appeal’s jurisdiction in certain matters considered essential to determining good industrial relations practice. These matters are ones considered to be questions of fact and determinations based on the evidence which the members of the Industrial Court are best qualified to answer. This is consistent with the fact that the Legislature vested the Industrial Court with the responsibility of ensuring that good Industrial Relations practices are maintained in employment relationships. S. 10 (6) lists these matters as:
·??????? The circumstances of a worker’s dismissal – whether it was harsh, oppressive or contrary to good industrial relations.
·??????? The orders of the court consequent on the finding that the dismissal was harsh and oppressive – orders of compensation and damages.”
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59.???? For the above reasons we dismissed the appeal. We made no order as to costs, there being no exceptional reason within the meaning of section 10 (2) of the IRA to order otherwise.”
5.????????????? Humanitarian Violations In The Face Of An Employee’s Inherently Weak Bargaining Power And Age May Also Be Taken Into Consideration And Such Violations Keep Becoming More And More Expensive At The Industrial Court
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GSD-RSBD TRADE DISPUTE NO. 12 OF 2021, delivered on April 4th 2023, in the Industrial Court between BANKING, INSURANCE AND GENERAL WORKERS UNION and GUARDIAN SHARED SERVICES LIMITED (CORAM: DANIEL, MAHABIR & BARTLETT-ALLEYNE), is a perfect example where the inhumane handling of an employee in the face of her inherently weak bargaining power and age made a significant impact on the quantum which was awarded. The following quotations will ascertain just how grave the issue is when it emerges at the Industrial Court:
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(Page 2)
“1.???? Introduction
This Trade Dispute (the Dispute) concerns the dismissal of Carol Carmino (the Worker) on October 02, 2020 via a Notice of Retrenchment dated August 19, 2020 issued by Guardian Shared Services Limited (the Employer / the Company).
The Banking, Insurance and General Workers Union (the Union) submits that the sanction of dismissal against the Worker is harsh and oppressive, which renders it substantively unfair. Quite expectedly, the Employer contends otherwise in its filed Evidence and Arguments. For the record, the dismissal is admitted by the Employer. The reason given for it is redundancy.
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In this regard, the Union seeks the judicial remedy of putting the Worker as nearly as possible in the same position as if the wrong complained of had not occurred. Accordingly, the Union seeks to recapture the Worker’s –
v Immediate loss of Salary, Pension and Bonus Payments; Group Medical and Life Insurance benefits / claims and damages for the manner of dismissal.
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To be pellucid, the Union prays that compensation concerning the Worker’s pecuniary loss be computed from the date of dismissal up to the time she would have been lawfully retired, that is, a further eight years and two months’ contractual service.
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The Union posits that this remedy is necessary because the Company used a sham redundancy to get rid of an undesired employee. In any event, the use of redundancy as a pretext for getting rid of an employee is not an option in this country.
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1.???????????????? Evidence
Both Parties filed their respective Evidence and Arguments as well as an agreed bundle of documents, which we were informed is relevant to a full understanding of the factual matrix of the dispute. The Court heard only viva voce evidence from the Worker. In this context, the Employer opined that it had not filed Witness Statements because their material witnesses were no longer employed there. Additionally, both Parties had provided the Court with written Proposals regarding a corresponding money remedy. The scope of the dispute was therefore limited on assessment of compensation.”
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(Pages 3 to 5)
“The Worker averred that unknown to her a decision had already been taken to make her job redundant. She became aware of this fact at a meeting on August 7, 2020 which was confirmed by correspondence of even date, signed by the Group’s Vice President responsible for Human Capital and Transformation, Mr. Kevin Haqq (Haqq). The letter warned the Worker that “the position of Executive Assistant which you hold in the IT Department will be eliminated and is now surplus to the needs of the IT Department”. Our emphasis.
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The Worker was then invited to a consultation at 10:00 a.m. apparently on same day. According to Mr. Haqq, this was the commencement of the process of “formal consultation”. By correspondence dated August 10, 2020 two (2) things emerged. First, there was further official authentication by Mr. Haqq of the elimination of the position of Executive Assistant by August 17, 2000. Secondly, the Worker was invited to apply for any of the available and suitable positions listed on the Vacancy Folder. Upon consideration, the Worker concluded that she did not possess the right skill set for any of those listed positions, and informed management accordingly. There was no further communication from management regarding other possible accommodation at the work-place.
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The Worker said she also attempted – unsuccessfully – to persuade her Employer to investigate the motivation of those involved in the decision to allegedly restructure the department as well as those behind her dismissal, which she verily believed was connected with her complaints concerning Brenters’ conduct. After all, it was apparent to her that he, Brenters, had a desire to remove her personally. He had by then distributed her job functions to the Assistant. Ironically, Brenters was part of the Group’s narrative in her dismissal, which immediately caused her concern about his independent thought and neutrality. But to the Worker’s dismay, their support was only lingual.
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In the circumstance, the Worker argued that she was unfairly targeted for dismissal, thereby rendering the redundancy a sham. She has struggled, without luck to find employment, moreso of a permanent nature. The Worker said she believes that AGE WAS AGAINST HER.
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The Worker had just over fifteen years’ dedicated service with the Employer. She was in receipt of a monthly salary of $17,815.00 as well as several benefits.
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4.???????????????? Discussion / Finding
After considering all the circumstances of the Dispute, the court finds merit with the Worker’s uncontested claim for unfair dismissal rendering the employer’s action harsh and oppressive. By way of amplification, the dismissal was a complete sham; that dismissal was pre-determined; void of a valid honest reason and that there was nothing the Worker could say to prevent or delay her dismissal. The statutory definition of a redundancy has not been made out.
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By way of further amplification, this case raises frontally the balance of power inherent in the employment relationship. To this end, Alan Fox (1971) wrote in “A Sociology of Work in Industry” that this type of conflict “involving the individually-presented grievance by a lower participant, offers management the least challenge since the balance of power lies so heavily in their favour. The employee can bring little or no pressure to bear because the organization can impose severe penalties upon him – in the last resort, discharge – at a relatively much low cost to itself”. This worker was dismissed without cause – at a low cost to the Employer, which was the statutory minimum severance benefits payable to retrenched workers.
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5.???????????????? Conclusion
In determining fair and appropriate compensation, we have factored in our deliberation, inter alia, the Worker’s years of dedicated service, HER AGE AT THE TIME OF DISMISSAL and THE MANNER IN WHICH THE DISMISSAL WAS EFFECTED, PARTICULARLY IN A GLOBAL PANDEMIC. There was SIMPLY NO HUMANITY SHOWN TO THE WORKER, who knew that the quality of her living must fall, given the costs associated with a dismissal, Harsh And Oppressive As It Were.?
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6.???????????????? Order
For the reasons set out above: IT IS HEREBY ORDERED AS FOLLOWS:
That the Company, Guardian Shared Services Limited, to pay damages of One Million Trinidad and Tobago Dollars (TT$1,000,000.00) to the Worker, Carol Carmino. This sum is to be paid not later than May 29, 2023.”
6.????????????? Age Discrimination Cannot Be Used Against A Worker Because The Principle Of Life-Long Learning Is An Approach That Guides The Industrial Court When Dealing With The Use Of Alternative Employment
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TRADE DISPUTES NOS. 165 AND 199 OF 2009, delivered on December 16th 2013, in the Industrial Court between BANKING INSURANCE AND GENERAL WORKERS’ UNION and REPSOL E&P T&T LTD (CORAM: LUTCHMEDIAL, ABERDEEN & MAHABIR), is definitely a landmark judgment for the topic of age discrimination at the place of employment. In this regard, the following two (2) quotations will leave readers with an unequivocal appreciation on the Court’s approach to this topic:
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(Pages 1 to 3)
“1.???? Preliminary
The Banking, Insurance and General Workers’ Union (“the Union”) brings complaints of direct age discrimination, indirect age discrimination, and unfair dismissal of Messrs Dennis Olton and Leroy Haye (referred to individually by their “surnames” or collectively as “the Workers” against Repsol E&P T&T Ltd., their former employer (referred to as “the Employer” or “the Company”).
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2.?????? The Issues
The issues in the claims of the Workers were set out in the Union’s Evidence and Arguments filed at the Industrial Court (“the Court”) on 1st December, 2010. Similarly, the Company’s Evidence and Arguments were filed at the Court on 21st December, 2010. The issues are as follows:
(i)?????????????? Age Discrimination
The Union contends that the use of age as the sole criterion in terminating the services of the Workers is discriminatory and violates the International Labour Organization (“the ILO”) Conventions, specifically Convention No. 111 and the Caricom Model Harmonisation Act.
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(ii)???????????? Direct Age Discrimination
The denial of the right to equality of treatment complained of by the Union is the selection of the Workers for dismissal solely on age.
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(iii)????????? Indirect Age Discrimination
The Union says that the application of the age criterion was discriminatory, which rendered the achievement of the Company’s aim of retaining those workers who will best serve its business needs tainted by discrimination. More importantly, the Union claims that the Workers were put at a disadvantage as they reasonably expected to continue in employ to age 65 absent any misconduct listed in their contracts of employment.
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(iv)?????????? Unfair Dismissals
The Union contends that the selection criterion was chosen arbitrarily and unfairly applied to the Workers, rendering their dismissal harsh and oppressive.
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The Company denies the Union’s claim. The Company asserts that in order to secure its future a restructuring exercise of its offshore operations was conducted, which resulted in the creation of a surplus of labour. The Company adduced into evidence that its legitimate aim was simply to retain those workers who would best meet its business needs going forward. In this regard, the Company deduced that its long term goals would be better served by having a relatively younger workforce.
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Based on the foregoing, the Company determined that all non-managerial workers who were within five (5) years of retirement would be selected for early retirement.
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Moreover, the Company argues that the established principle of last in first out (LIFO) was inapplicable to the circumstances it faced as all of its employees in the offshore operations had the same length of service in their employment. As such, the Company was entitled to use the best strategy for pursuing its long-term goals. The strategy was executed in good faith.”
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(Pages 6 to 7)
“5.???? Observation
This is a convenient stage at which to mention for the record that at the 102nd session of the International Labour Conference (ILC) in Geneva, June 2013, the Committee on The New Demographic Context, called for the implementation of non-discriminatory practices that embraced age diversity and age sensitivity. The Committee recommended a tripartite approach to increase lifelong learning opportunities, to foster employability and productivity and to prevent skills obsolescence by removing age limits in access to learning and training. The Committee also recognized that policies to combat discrimination based on age and practices of diversity and age sensitivity are central to HUMAN DIGNITY AND TO INCREASING PRODUCTIVITY.
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The conversation has therefore begun about the nature of human beings and work and the part it [work] plays or should play in human life. IT IS A CONVERSATION OF PROFOUND SIGNIFICANCE.
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6.?????? Obiter
Having regard to our finding, it is now the duty of the Court to ensure that the principles of good industrial relations practice has content and meaning. In this regard, we adopt the statement in the Judgment of the Caribbean Court Of Justice, Appellate Jurisdiction, [2012] CCJ 3 (AJ) at para. 30 as pertinent to this case. The statement is:- “To do less would impact negatively on the efficiency and standing of the justice system” (CCJ Appeal No. CV3 of 2011 between MAYAN KING LTD. AND JOSE L. REYES AND OTHERS).
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7.?????? Disposition
We have taken a sensible and robust approach to what is fair and appropriate compensation based on our findings of fact. We have noted in our deliberations that the Workers were left with 4 years to reach the compulsory retirement age of 65.
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Consistent therefore, with section 10 of the Industrial Relations Act, Chap. 88:01 (the Act) we hereby order the Company to pay compensatory damages to the Workers as follows:-
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Dennis Olton?????? - $850,000.00
Leroy Haye????????? - $1.2 million
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The monies are to be paid to the Workers on or before 31st January, 2014.
Further, any loss of pensionable benefits suffered by the workers as a result of their termination of service before age 65 shall be reimbursed to them on or before 31st March, 2014.
For the avoidance of doubt, this compensation is separate from the monies the Workers had previously received upon their termination of service.”
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END.