REMOVING THE JUDGE, THE JURY AND THE EXECUTIONER FROM THE DISCIPLINARY INQUIRY HEARING IS MANDATORY

NEUTRALITY MUST ALWAYS BE THE GOAL OF THE PERSONS WHO PERFORM AS MEMBERS OF THE DISCIPLINARY INQUIRY

If you had not already discerned from my earlier articles, let me lucidly declare that the judgments are seen by me to be neutral pronouncements aimed at guiding company representatives, trade union representatives, workers, government agents and judges of any of the courts on the correct approaches to take when dealing with trade disputes at the levels where they encounter them. From my earlier articles published on LinkedIn this year (2024), I had also stated that the unions and companies within Trinidad and Tobago have successfully challenged the rulings contained within certain judgments so much so that the Industrial Court could no longer adopt the previous reasonings it had used within those judgments which had been overturned. Once again, this specific topic seeks to present things as neutral as I possibly can because the judgments are meant to help any reader understand and also apply those rulings when faced with similar circumstances at the place of employment. We call such rulings precedents because they stand-out as a great guide and some are even referred to as a “landmark judgment”. Until these landmark judgments have not been overturned by a higher court, I and all other readers are personally bounded to treat them as the best authority on examples on how to deal with similar matters at other companies. It is from the reading and understanding of those judgments that any neutral person will be able to detect if you had failed to do the right things at the Company level under the disciplinary proceedings. If your actions were not influenced 100% by the landmark rulings then it would be foolish to expect the victory at the Industrial Court of Trinidad and Tobago.

As I had stated in an earlier article on LinkedIn (2024), all trade union officers are continuously trained and mentored over many years in the use of a check-list which would empower them to meticulously analyze and assess the strengths and the weaknesses of the company’s case against the worker. In this regard, the main function of any trade union officer is to be proficient at identifying fundamental flaws in the cases of any company so that the Court would be inclined to make a favourable ruling for the aggrieved worker. Their main weapon in this regard would be the continuous mentorship training in which they share and utilize cutting-edge landmark judgments which have been handed down by any court which gives rulings on employment related issues. The continuous mentorship training of trade union officers empowers them become like a pride of lions staring at herds of grazing animals until one of the grazing animals with a glaring limp it detected. Once detected, that limping animal may become the next meal within the next few minutes or hours. So too will a company become the next meal for the trade union officers when the company officials “limp” by failing to use the precedents which are contained within the Court judgments.

In contrast to all trade union officers, most line managers, human resources managers, chief financial officers, chief operations officers and directors are not ordinarily interested in reading these landmark judgments which the trade union officers are reading so they never see the merit on using the same continuous mentorship as what unions rely on as their lifeblood. Therefore, from the experienced eyes of any neutral observer, the victories of union officers are comparable to taking candy from a baby because the complete ignorance of the power brokers at companies seem to have remained the same within the 59 years of existence of the Industrial Court which came into existence in 1965 under the auspices of the Industrial Stabilisation Act of 1965. Trade union officers are often willing to sacrifice many hours in a day in order to read a landmark judgment which could consume many waking hours. On the other hand, power brokers at companies believe that they have no time with reading a landmark judgment because they have far more important things to do than read about worker rights. No matter what, the show has to go on, so let the chips fall where they may.

LANDMARK JUDGMENTS AGAINST USING THE JUDGE, THE JURY AND THE EXECUTIONER ON THE DISCIPLINARY INQUIRY HEARING

As recent as December 14th 2023, in TRADE DISPUTE NO. 371 OF 2011, the Court was influenced by the argument from the Union that “the investigation process” was vitiated because of the many roles played by a line manager who was described by the Union as “Chief, Cook and Bottle washer.” The following quotation will be instructive in this regard:

(Pages 10 to 11) – “In its Closing Submissions, the Employer submitted that its “procedure was in keeping with the collective agreement and the principles of good industrial relations.”

On the other hand, in its Closing Submissions, the Union stated that:-

“Your Honour what’s concerning about the investigation process when His. Hon Mr. Rabathaly asked the Worker if Mr. Spencer chair the investigation his response was “yes” Your Honour interestingly the company’s evidence and argument, Mr. Spencer letter 2nd September 2010 invited the Worker to a disciplinary hearing and again Mr. Spencer letter 17th September 2010 dismissing the Worker services, this action by Mr. Spencer tantamount in local palance as “Chief, Cook and Bottle Washer.” (sic)

In this regard, the Court noted that Mr. Dhanoolal had allegedly complained to Mr. M. Spencer, the Distribution Operations Manager, about the worker’s conduct and performance, Mr. N. Spencer preferred the charges against the worker, then Mr. Spencer had co-chaired the disciplinary hearing which found the worker guilty and Mr. Spencer signed the dismissal letter to the worker. (Emphasis by me)

To this end, the Court adopts the following statement in the Judgment of the Court in Trade Dispute No. 1 of 1989 between the Association of Technical Administrative and Supervisory Staff and Caroni (1975) Ltd ….

“… we find and hold that whether or not an objection had been raised by the Union to Wotherspoon’s membership of the tribunal, Wotherspoon should have disqualified himself from so sitting, since he himself had laid the charges against the worker. Having laid the charges against the worker, it was his duty to appear as a witness before the tribunal to support the charges. On the facts of this case, therefore, we find that there is much merit in the Union’s complaint that Wotherspoon acted in this instance as “prosecutor, judge, and executioner” since it was Wotherspoon who also signed the letter of dismissal to the worker. It must be remembered in this context that Wotherspoon is and was at the material time the General Manager of the Company and that the other members of the tribunal held positions in the Company subordinate to him. The impartiality of the tribunal was in the circumstances tainted by Wotherspoon appointing himself as its Chairman. This again we specifically hold to be offensive to the principles of good industrial relations practice.” (Emphasis by me)

Contrary to the Employer’s submission, it is clear and undeniable that the Employer infringed the principle of good industrial relations practice regarding the procedure.”

($350,000.00 in damages ordered)

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If there was an absence of the continuous mentorship training programme at the well-known trade union in the above-mentioned matter (TRADE DISPUTE NO. 371 OF 2011), it is highly unlikely that the shop stewards could have become so proficient in their recollection of a case which had been delivered over three decades ago under similar precarious circumstances in dealing with natural justice. These are not classroom skills because these are skills which are developed on the “battle-fields” by trade union officials and they share them with each other in secret mentorship sessions so that they would catch lawyers and human resources practitioners completely unprepared, as in this matter and the one which happened three decades ago. ?The following references are four (4) more landmark judgments which also went in favour of the worker because of the same violation of the presence of a panelist on the disciplinary inquiry who was deemed to be a judge, jury and executioner:

a.???? TRADE DISPUTE NO. 309 OF 1986, Delivered on March 14th 1990 (Exemplary damages ordered);

b.???? TRADE DISPUTE NO. 212 OF 2001, Delivered on March 20th 2003 (Compensatory damages ordered);

c.????? TRADE DISPUTE NO. 379 OF 2013, Delivered on April 13th 2017 ($400,000.00 in damages ordered or 15 months’ salary); and

d.???? TRADE DISPUTE NOS. 292, 293 AND 294 OF 2011, Delivered on June 17th 2020 ($250,000.00 in damages ordered).

SPECIAL CIRCUMSTANCES WHICH THE COURT EVALUATES WHEN IT SCRUTINISES THE NEUTRALITY OF THE PERSON OR PERSONS WHO CONDUCTED THE DISCIPLINARY INQUIRY HEARING ?

(1)? The chairperson of the disciplinary inquiry hearing must uphold or adhere to the highest standards because the evidence must be consistent against the employee before the company could act against the worker with disciplinary action, as captured within TRADE DISPUTE NO. 83 OF 1995, delivered on March 6th 1997. The following two (2) relevant quotations from that judgment are quite instructive:

(Page 2) – “It appears to me that there are two inconsistent statements in the warning notice which was issued to the worker by the Operations Manager of the Bank. Paragraph 2 of the warning notice stated:

“After all the required checks were carried out, the reason for the shortage could not be identified.”

However, in the very next line of the letter the Operations Manager attributed the shortage to the worker’s negligence.

In my view, this inconsistency on the face of the warning notice by itself justifies its removal from the worker’s personal record, since the negligence must be related to some act or omission of the worker. The warning notice did not refer to any such act or omission. In fact, the bank did not discover the cause of the shortage at all.”

(Pages 3 to 4) – “A warning notice should not be issued by an employer cavalierly. The investigation preceding its issue should be as thorough as if more serious disciplinary action is contemplated. It must not be used to tarnish the reputation of a worker where it is not possible to discover evidence to justify more serious disciplinary action.

For these reasons, I order the Bank to forthwith remove this warning notice from the worker’s personal record of service with the Bank.”

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(2)? The chairperson of the disciplinary inquiry hearing must inform the participants that non-disclosure of relevant information at the disciplinary inquiry is deemed to be not in accordance with the principles and practices of good industrial relations and a breach of natural justice as is exemplified in the following quotation from TRADE DISPUTE NO. GSD-TD 630 OF 2018, delivered on July 18th 2023:

(Page 20) –

“d) ???? The Worker was not given the opportunity to face his accusers. The Chairman of the panel did not know who made the initial report nor the contents of that report. The person or persons who made the allegations did not appear at the disciplinary hearing to give their account of what transpired and to allow the Worker to face them and respond to the allegations.

e) ?????? The panel’s decision not to present the supervisor’s inconsistent statements to the Union, nor allow the supervisor to face scrutiny of the Worker and the Company, is flawed and not in accordance with the principles and practice of good industrial relations.

f) ??????? The decision to provide the Union with snapshots and time slots of the video and not the complete video at the hearings is flawed and in breach of natural justice and the principles and practices of good industrial relations.”

($380,000.00 in damages ordered or 193 weeks’ wages)

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(3)? The chairperson of the disciplinary inquiry hearing must always remind the company that the burden is upon the shoulders of the company to do everything within its powers to give the worker the opportunity to heard in defense of the charges which may have been made against him or her. The following excerpts from TRADE DISPUTE NO. 720 OF 2013, delivered on December 15th 2022, will enlighten readers on the correct method which should be adopted by a company:

(Page 17) – “The Union must take the blame for the aborted meeting and the opportunity it presented to the worker to defend the charges brought against him by the Company. However, the Company should also have made another attempt to reconvene the meeting in an effort to preserve the rules of natural justice.”

(Page 18) – “50. The Company acted prematurely in making the decision to dismiss the worker. They should have reconvened the disciplinary hearing so that the worker would have the opportunity to be heard and defend the charges.”

($160,000.00 in damages ordered)

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(4)? There must be a commitment by all chairpersons to promote the integrity of the due process of the disciplinary inquiry hearing. For example, the chairperson of the disciplinary inquiry hearing must ensure that any witness which the company is relying upon to give evidence against the accused and / or the charged worker should have given a statement in writing before the charges were laid against the worker and the worker should have seen the document before he or she had been charged so that a written response could have been possible before the decision was made by the Company to charge the worker. The late delivery of written accusations to the accused undermines the right of the worker to mount a defense or to obtain the most suitable representative, in the event that he desired to mount a defense. Another example of protecting the integrity of the disciplinary inquiry hearing is for the chairperson to ensure before the commencement of the hearing that any witness which the company expects to rely upon will be available to give verbal evidence in person at the disciplinary inquiry hearing in order to be cross-examined by the accused or his or her representatives. If a witness is not willing to attend the disciplinary inquiry hearing, then it will be the duty of the chairperson of the hearing to immediately extinguish any role which the evidence from such a witness may play in the outcome of the disciplinary inquiry hearing. Bear in mind that any witness that is not willing to be cross-examined by the worker at the bilateral level will be debarred by the Industrial Court from giving evidence to the Court against the worker. A reading of the following pertinent judgments will no doubt provide readers with a clearer appreciation of this area of the topic at hand:

(a)? TRADE DISPUTE NO. 193 OF 2007, delivered on November 21st 2013 ($400,000.00 in damages awarded) –

(Page 11) –

“ANALYSIS:

The worker has admitted he carried out the transactions. He has maintained all along that he did so after being authorized by “his supervisor” in accordance with the established procedure. “His supervisor” was the Bank’s key individual in this dispute. Yet, the Bank failed to have her present either during the investigation or at the disciplinary hearing at which the worker was present. “Another witness” also was never interviewed by the investigators nor had he attended any disciplinary hearing at which the worker was present. Further, the worker was not afforded any opportunity to question “Mr. R” and or the security personnel nor were reports from them given or shown to the worker.”

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(Page 16) –

“SUMMARY AND DISPOSITION:

The Bank adopted a “high handed” approach towards the worker in its investigation of the transactions. The persons who were immediately concerned did not ask him for an explanation immediately upon becoming aware of the transactions. The behavior of “Mr. R” and “Mr. J” towards a senior employee of the Bank is severely wanting when it comes to the principles and practices of good industrial relations. The two key or main “players” on behalf of the Bank were never interviewed by the investigators nor were they present at the so-called disciplinary hearing. It is so-called because the Bank opted not to permit the worker to hear the facts or evidence from its witnesses – facts or evidence from which it came to the conclusion that he was guilty of serious misconduct whereby the Bank was no longer able to place in him the level of trust and confidence required in the banking industry. Furthermore, the Bank, by its own admission took into account matters (transactions) in order to reinforce its decision to dismiss the worker without first giving the worker an opportunity to respond thereto. According to “Mr. W”, these transactions were taken into account in making the decision to dismiss the worker.

The worker considered himself a “career banker” and the Bank, by its own actions has caused severe hardship on the worker as is evident by his inability to secure a job in the financial industry. There was no allegation of dishonesty or fraud committed by the worker. We agree with Counsel for the Union that in a small society as ours if your career in one bank is ended “no other bank will touch you. Your career is over especially in circumstances like these.” Employers, especially those in the financial sector, must be cautious and ensure that any decision to dismiss a worker is taken in accordance with the principles of good industrial relations practices. By failing so to do they run the risk of having to pay a heavy price.

Even if we had held that the worker was in breach of the Bank’s procedures, we find that a lesser penalty should have been imposed having regard to his length of service and the fact that the previous transactions carried out by the worker for the customer (and referred to at the end of the letter of dismissal) were never an issue for the Bank prior to October 04, 2006. The natural and obvious conclusion therefore is that these earlier transactions were approved and authorized by “his supervisor” or some other Bank official who was senior to the worker.

We therefore find and hold that the worker was dismissed in circumstances which were harsh and oppressive and contrary to the principles and practices of good industrial relations. We are not minded to order reinstatement for obvious reasons. Taking all of the circumstances into consideration …, we order the Bank and or its successor to pay to the worker, …, the sum of $400,000.00 as damages, the assessment of which in our opinion is fair and appropriate. The sum is to be paid on or before December 17, 2013.”

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(b)? TRADE DISPUTE NO. 14 OF 2005 (S), delivered on December 20th 2013 ($354,600.00 in damages awarded)-

(Page 6) –

“ISSUES FOR DETERMINATION

The issues for determination are:

1.???????????????? Whether the dismissal of the worker by the Company was justifiable;

2.???????????????? Whether the worker was afforded an opportunity by the Company to be heard.

In its written submissions, the Union contended that the dismissal of the worker was harsh and oppressive and contrary to the principles of good industrial relations practice. In support of this contention, the Union submitted that the Company had not adduced sufficient probative evidence to demonstrate that the worker was guilty of the misconduct which it alleged was the cause of his dismissal. The Union contended further that the worker was not given a fair opportunity to be heard and pointed to the evidence of “Mr. C” that the statements taken from “Mr. S” was not given to the worker.”

(Pages 8 to 9) –

“OPPORTUNITY TO BE HEARD

Whilst it is acknowledged that the worker was called to a meeting and asked for an explanation of the findings of “Mr. C”, he was not given statements made by “Mr. S” and “Mr. R” to allow him to properly respond. The Company had a duty to divulge all statements obtained in the course of the investigation and to afford the opportunity to question these persons who gave statements. Providing the worker with documents at the meeting to which he is expected to adequately respond is simply unacceptable.

In W. Weddel and Company Limited v Tepper [1980] IRLR96, Stephenson L.J. held:

“[employers] must make reasonable inquiries appropriate to the circumstances. If they form their belief hastily and act hastily upon it, without making the appropriate inquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are certainly not acting reasonably” ?

In Trade Dispute No. 130 of 1994 between Association of Technical, Administrative and Supervisory Staff and Caroni (1975) Limited, Khan V.P., as he then was, explained what the opportunity to be heard entails. We find it necessary to repeat the dicta:

“It … involves the provision of relevant information by the employer to the employee to enable the latter to appreciate and understand the substance of the allegations made against him and an opportunity given to the employee to reply to such allegations and to put forward any reasons in mitigation of any penalty or penalties which may be possible having regard to the nature of the allegations made against him. The opportunity must be given before the decision is made.”

Having considered the totality of the evidence the Court finds that:

1.???? The worker was not guilty of any misconduct in issuing Participation Cards to “Mr. R” and “Mr. C”

2.???? The worker was denied a fair opportunity to be heard and not given adequate time to respond to the allegations set out in the Company’s letter of dismissal dated 3rd March, 2013.

3.???? The Worker had twenty-seven (27) years of unblemished service and was dismissed in circumstances that were harsh, oppressive and not in accordance with the principles and practices of good industrial relations.”

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(c)?? TRADE DISPUTE NO. GSD-TD 277 OF 2015, delivered March 18th 2022 (Two (2) workers with 8 months and 6 months service, respectively, received $140,000.00 and $120,000.00, respectively) –

(Pages 6 to 9) –

“ISSUE

Whether the dismissal of both workers herein were (sic) done consistent with good and proper industrial relations practices and procedures.

ANALYSIS OF LAW AND EVIDENCE

It is trite law that no worker should be dismissed from his employment unless there is a valid reason for such termination connected with the capacity or conduct of the Worker based on operational requirements of the undertaking establishment or service. See ILO Convention 158 “Termination of Employment Convention, 1982, Article 4”. Indeed, the Court is replete with decisions and precedents to that effect.

It is noteworthy that the Court recognized that in exceptional circumstances an employer may forgo having a disciplinary tribunal whereas the worker would have been charged and called upon to answer thereto. In such situation a higher threshold is visited upon such employer to demonstrate that even if he had conducted such an enquiry he may have arrived at the same decision. It begs the question in the instant case whether the employer acted with good and proper industrial relations practices and principles in dismissing the respective employees without having a tribunal.

What is the evidence? In respect of Worker No. 1, the Company in its Evidence and Arguments placed heavy reliance on an incident that occurred on the 16th July, 2014, where the worker refused to escort a well-known and essential client to his residence. In fact it stated that Worker No. 1, when asked to escort the client not only refused but said “let him travel to escort himself”. It stated further in the Evidence and Arguments that the Company lost a lucrative business deal. The Company conducted an investigation to ascertain the severity of the incident and thereafter served the worker with a termination letter.

The Court considered the following:

Was the worker informed of the nature of the investigation and provided with particulars of same? Was the worker invited to participate in the said investigation? Was the worker given an opportunity to respond to any questions or statements given against him in the course of the investigation? Was the worker at the very least given a copy of the investigation? Assuming though not admitting there was a finding of guilt was the worker given an opportunity to mitigate? Was this the first incident of its kind involving the worker? If so, was he given an opportunity to improve or rehabilitate? The Court found as a fact that the Company both in Evidence and Arguments and Witness Statements failed to address any of these concerns the Court had.

The Court found it incredulous that Mr. Gilkes purported in his witness statement he gave third hand information. Even more startling Mr. Gilkes reference (sic) a tribunal of which he was not a participant, but no information on the date, procedure and notes taken thereof. A Court properly constitute (sic) cannot be expected to accept someone merely stating there was a tribunal with no supporting evidence. Moreover, the Worker No. 1 was a stranger to their being any tribunal at all. On a balance of probability that the nature of the alleged offence and given the consequence of dismissal the worker herein ought to have been given the opportunity to defend himself. Consequently, the Court found as a fact that his dismissal was not consistent with good and proper industrial relations practices.

It is instructive at this stage for the Court to comment and reflect on the termination letter served upon Worker No. 1. Employers must be mindful that a termination letter irrespective of what may have transpired during the currency of the employment the termination letter ought to be the reason or reasons the employer formed the view that the employment relationship ought to come to an end. Within the four corners of the termination letter there ought to be no ambiguity as to the why and on what basis the employer came to this final decision. It is the requisite medium or vehicle that an employer has to drive home the point to the Worker that they cannot sustain the said employment relationship. Strangely, in this instance there are no reasons given in the termination letter of Worker No. 1. The Court found as a fact that the termination letter herein was inconsistent with good and proper industrial practices.

In respect of Worker No. 2, the Company in its Evidence and Arguments contended that the worker from the outset had not performed in his duties in a professional and / or suitable manner. Some of this included sleeping on the job; smoking on the compound and generally poor work ethic. The Company stated further that it gave the worker numerous warnings and the opportunity to improve which he did not.

Evidently though those various warnings to the worker isn’t before the Court. Indeed, the Court found it curious that it was never even stated that whether those warnings were orally or in writing. Further, there is no evidence if those warnings were given and for what period of time was the worker afforded to take corrective action. In a similar manner the dismissal letter given to Worker No. 2 was devoid of any reason or reasons for his dismissal.

There is no evidence as in the other instance that any attempt was made to constitute a tribunal herein. On a balance of probability, the Court found as a fact that the worker herein was not given the opportunity to defend himself. The Court found that the dismissal herein was inconsistent with good and proper industrial relations practices and procedures. As in the dismissal of Worker No. 1, the Court deprecate the fact that the dismissal letter failed to provide the reasons for the dismissal of the worker herein.”

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(d)? TRADE DISPUTE NO. GSD-TD 482 OF 2018, delivered on November 7th 2022 ($600,000.00 in damages or 180 weeks in wages) –

“ISSUES

6. ? In the course of the hearing of this trade dispute, the Company’s representative informed the Court that the Company was unable to defend the claims of the Union or (the actions taken by the company) as the Company could not produce any witnesses, as a result, the Company wished to engage in bilateral talks with the Union aimed at a settlement, in essence, the Company conceded its case.

As a result, the Court directed parties to:

??????????????????????????????????????????? I.??????????? To hold discussions towards settling the dispute, (and) in the event the discussions failed to bear fruit;

???????????????????????????????????????? II.??????????? To file closing submissions on remedy.

7. ? The parties were unable to settle. The Union has conformed to the Court’s order and filed submissions on remedy but the Company has failed to carry out the order of the Court.

8. ? The overarching reason for the Court directing parties to file written submissions on remedies was to enable parties to justify their position with cogent and convincing arguments, in effect the Company has refused a second bite of the cherry.

9. ? The Company must be cognizant that evidence led by the Union, if not directly contradicted or challenged, on a balance of probabilities, would result in the Union being given the benefit of proving its case. The Company has failed to discharge its burden to prove to this Court that it had conducted the necessary steps in accordance with good industrial relations practices, had found sufficient evidence to find the Worker guilty of the charges laid against him and after considering mitigating factors the Company’s only recourse was the ultimate penalty termination.

10. The Court holds the view that having failed to mount a defense, as to why it terminated the Worker’s Services is asking the Court to consider unknown things. Further failing to file closing submissions on remedy as directed, the Employer has decided to allow the Court to adjudicate this trade dispute with the only evidence that can be tested, that is, the evidence and arguments, witness statement, and closing submissions on the remedy of the Union. ?

11. The evidence of witnesses is undeniably vital to the Employer’s case. Needless to say, the weight attached to statements of a witness submitted to the Court in a witness statement cannot be tested by cross-examination and is not subject to the inquisition of the Court is just that – Statements of a person involved in a matter before the Court, and the weight attached to it tends to be minimal, if not nonexistent. The evidence of the Union, therefore, remains uncontroverted evidence. (sic)

12. The Court has considered the fact that had the Worker not been dismissed by the Company he would have been employed up until the Company ceased operations of Readymix (West Indies) in Tobago, thus would have been entitled to benefits calculated in accordance with Article 27 (Redundancy) of the subsisting collective agreement. Further, had the Company not ceased operations in Tobago the Court was minded to reinstate the Worker to his position with the company.”

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(e)? TRADE DISPUTE NO. 179 OF 2017, delivered February 18th 2021 (two (2) fixed term contract workers received the unexpired part of their contract plus the gratuity in the sums of $195,000.00 and $303,000.00, respectively) –

(Pages 7 to 8) –

“Analysis and Findings

23. This Court is of the view that where the Employer is convinced of the reasons for the termination of the employment of workers and act on that conviction, there should be a similar confidence to defend its actions before this Court in cases where a Union challenges the decision to dismiss. This should be even more so where as in this matter, the dismissals are highly published in the news media. The Court took judicial notice of the newspaper reports that formed a part of the Union’s statement of Evidence and Arguments.??

24. Regrettably, too often there is reluctance on the part of employers to participate in the proceedings before the Court. This approach deprives the Court of the employer’s evidence for its actions and leaves the Union’s evidence generally unchallenged. Especially in state-owned companies like EFCL, quite apart from being disrespectful to the Court, such an attitude often proves to be very costly to the State and a heavy burden on tax payers. (emphasis by me)

25. In Trade Dispute No. 46 of 1988, Bank Employees Union v Republic Bank Limited, dated October 7, 1988, the Court had reason to make the following comments at page 32 of the judgment, which we find quite apt to repeat in this case:-

“If any party elects not to provide information or is unable to provide information which is necessary to establish its case, it must bear the consequences, as the Court will be at liberty to determine the matter before it on the basis of the evidence at its disposal; parties cannot merely stand aside and leave it to the Court to discover and to obtain all the information which may be relevant including matters of which it would not normally be aware.” ”

CRITICAL MITIGATING CONSIDERATIONS WHICH MAY IMPACT ON THE INTEGRITY OF THE DISCIPLINARY INQUIRY HEARING?

There are certain salient factors which may emerge during the inquiry which must be taken into consideration by the Chairperson and given the judicial recognition. Failure to consider the impact of such factors may vitiate the findings of the inquiry and any disciplinary action which may be applied as a consequence of those findings. In other words, because the Chairperson failed to permit such evidence or lack of it to play its appropriate role within this aspect of the disciplinary proceedings, such matters are bound for failure if they are scrutinized at the Industrial Court. The following are the prominent factors which ought to cause the chairperson to be meticulous on what the next move will be because the mishandling of these areas will undermine the integrity of the disciplinary inquiry hearings and it may also tarnish the professional reputation of the chairperson as a neutral person.

(1)? Did the company fail to apply its stated policy on any number of matters or is now seeking to use disciplinary proceedings against a worker for an unknown policy? The following judgments will guide you on this topic:

a.???? TRADE DISPUTE NO. GSD-TD 822 of 2018, delivered on April 3rd 2023 ($435,000.00 in damages ordered or 24 months’ salary);

b.???? TRADE DISPUTE NOS. 150 and 151 of 2020 (S), delivered on October 28th 2022 ($900,000.00 and $500,000.00 were ordered to two (2) workers respectively or 38 months’ salary and 25 months’ salary respectively);

c.????? TRADE DISPUTE NO. 371 of 2015, delivered on September 30th 2016 ($190,000.00 in damages ordered); and

d.???? TRADE DISPUTE NO. 128 of 2001, delivered on March 12th 2004 (Re-employment ordered).

(2)? Were the systems at the Company faulty so much so that it is most definitely impossible to confidently place blame at the feet of the accused workers? The following judgments will guide you on this topic:

a.???? TRADE DISPUTE NO. 263 of 2004, delivered on June 21st 2007 (Compensation ordered);

b.???? TRADE DISPUTE NO. 151 of 1997, delivered on February 19th 1998 (Compensation ordered);

c.????? TRADE DISPUTE NO. 2 of 1992, delivered on March 29th 1994 (Reinstatements and benefits ordered); and

d.???? TRADE DISPUTE NO. 287 of 1984, delivered July 5th 1988 (Compensation ordered).

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(3)? Did the employee have a genuine safety and health concern which caused him or her to refuse to follow an instruction in order to protect himself or herself from a direct threat to their life or limb? Apart from Sections 14 to 21 of the Occupational Safety and Health Act, Chapter 88:08, as amended, the following judgments will guide you on this topic:

a.???? TRADE DISPUTE NO. 200 of 2001, delivered on April 3rd 2003 (Damages ordered);

b.???? TRADE DISPUTE NO. 87 of 2001, delivered on February 21st 2002 (Reinstatement and damages ordered);?

c.????? TRADE DISPUTE NO. 99 of 1998, delivered on November 5th 1999 (Compensation); and

d.???? ESSENTIAL SERVICES DIVISION NO. 8 of 1981, delivered on May 25th 1984 (Reinstatement and benefits).

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(4)? Was the misconduct of the accused caused by the provocation from other co-workers including managers or owners of the company? The following judgments will guide you on this topic:

a.???? TRADE DISPUTE NO. 791 of 2016, delivered on June 9th 2020 (Damages ordered);

b.???? TRADE DISPUTE NO. 129 of 2000, delivered on May 11th 2001 (Compensation awarded);

c.????? TRADE DISPUTE NO. 213 of 1999, delivered on April 10th 2001 (Compensation awarded); and

d.???? ESSENTIAL SERVICE DIVISION TRADE DISPUTE NO. 24 of 1984, delivered in 1991 (Re-employment ordered).

(5)? Did the company fail to use equality of treatment when compared to the disciplinary action against other employees in the past and the present against exactly the same violations or offences which it is now planning to use against the accused worker? The following judgments will guide you on this topic:

a.???? ESSENTIAL SERVICE DIVISION TRADE DISPUTE NO. 17 of 002, delivered on December 13th 2006 (Reinstatement and 75% of benefits ordered);

b.???? TRADE DISPUTE NO. 150 of 2000, delivered on October 11th 2004 (Damages ordered); and

c.????? TRADE DISPUTE NO. 99 of 1994, delivered on October 10th 1997 ($135,000.00 as damages equivalent to 20.25 months’ pay at that time).

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(6)? Could progressive disciplinary action serve a remedial purpose and guide the employee away from the pathway of negligence or misconduct? The following judgments will guide you on this topic:

a.???? TRADE DISPUTE NO. 206 of 2018, delivered on November 21st 2023 ($650,000.00 in damages awarded or 41.4 months’ salary);

b.???? TRADE DISPUTE NO. 36 of 2015 (S), delivered on December 4th 2019 ($382,000.00 in damages ordered or 14 months’ salary); and

c.????? TRADE DISPUTE NO. 121 of 2010, delivered on March 27th 2013 ($140,000.00 in damages awarded for each of the 4 workers or 219 weeks’ pay).

CIRCUMSTANCES WHEN THE CHAIRPERSON OF THE DISCIPLINARY INQUIRY HEARING MAY NOT NEED TO APPLY NATURAL JUSTICE FULLY WITHOUT VIOLATING GOOD IR?

(1)? During a disciplinary inquiry hearing when an employee admits guilt in a serious matter such as conflict of interest, the use of dismissal is deemed to be appropriate provided that the admittance of guilt is clear.

a.???? TRADE DISPUTE NO. 201 of 2007, delivered on July 22nd 2009 (Trade Dispute was dismissed as employer wins case);

b.???? TRADE DISPUTE NO. 124 of 1991, delivered on May 25th 1993 (Trade Dispute was dismissed as employer wins case); and

c.????? TRADE DISPUTE NO. 23 of 1986, delivered on (Trade Dispute was dismissed as employer wins case).

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(2)? Where the accused employee refused to participate in the investigation, the inquiry or both, he forfeits his right to challenge anything if he is found to be guilty of any violations which attracted disciplinary action. The following authorities will ascertain this point:

a.???? Claim No. CV 2019-01509, delivered on May 3rd 2022 (Ruling favours the company as dismissal was upheld where worker refused to participate in the inquiry);

b.???? TRADE DISPUTE NO. 253 of 2017, delivered on January 29th 2021 (Trade Dispute was dismissed as employer wins case because employee refused to participate in the investigation); and

c.????? TRADE DISPUTE NO. 173 of 2003, delivered on June 21st 2004 (Trade Dispute was dismissed as employer wins case because employee failed to challenge the company’s accusers during the inquiry).

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CONCLUSION

From all of the above, it should be clear by now that in order for any chairperson to behave in a neutral manner, he or she ought to be competent in the principles and practices of good industrial relations via the judgments which are linked to the Labour Jurisdiction of Trinidad and Tobago. The old saying is true today as it had always been for centuries gone by, that is, you can lead a horse to water, but you can never make him drink. Once again, I am confident that the contents of this article will assist readers in the field of Industrial Relations to conduct a quick self-audit of what they are currently doing under disciplinary proceedings so that the companies would be more cautious as they walk and thereby escape being limpers when their actions are scrutinized at the Industrial Court by the trade union officers and by the Honourable Judges. Obviously, in going forward, whether companies like it or not, trade unions will continue to use their methodology of training known as the continuous mentorship programme because trade union leaders know that this is a tried and tested system which has given them victory upon victory against lawyers and human resources managers on a wide range of trade disputes. In other words, if it is not broken, then there is no need to fix it.