Workers’ Employment Rights Are Human Rights In Trinidad & Tobago
1.????????????? Introduction:
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 who are deemed to not be workers in accordance with the operations of the law provided by the Industrial Relations Act, Chapter 88:01, as amended. Failure by owners of companies and any level of managers 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. It is to be noted that, apart from paying damages to workers who have proven that their terms and conditions were violated, owners of companies have also been held liable for the payment of fines which are deemed to be industrial relations offences as captured under the Industrial Relations Act and the Retrenchment and Severance Benefits Act. They are also held liable for fines under the Occupational Safety and Health Act which are described as safety and health offences. Not reading this article or reading it and ignoring the dangers pointed out is clearly a financially unwise thing to do because a seemingly little mistake can turn out to be anywhere from $10,000.00 per offence to tens of millions of dollars in damages.
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, I believe that it would be remiss of me if I did not state the following under this introduction of the article:
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a.????? Most experts offering advice under the banner of Industrial Relations can barely explain what to use as sources of good industrial relations, therefore, it should come as no surprise that when a document they have constructed is tested, such a document cannot be properly defended by them. Do not get me wrong here. I am not stating to readers that the Industrial Court must always agree with everything which you have constructed at your places of employment. Not at all. What I am stating is that whatever you have constructed should respect the tried and tested rules so that even if the Industrial Court ruled against you, you should still be able to challenge them on a point of law or on a point of exceeding their jurisdiction.
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b.???? Always remember that challenging the Industrial Court can only be done by a lawyer so it is essential to know which lawyers possess sufficient knowledge about the laws which govern the Labour Jurisdiction of Trinidad and Tobago so that they could provide you with a written opinion on whether your challenge is a genuine one against an unlawful ruling or whether it is a challenge against good industrial relations that no one can challenge. If it is a challenge against good industrial relations, then a competent lawyer would tell you that you have an impossible case because the law does not permit a challenge on a ruling under industrial relations. ?
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c.????? What is also very confusing to unmentored experts in the field of Industrial relations is that there are two (2) sources of laws and two (2) sources of rules which bind the contracts of employment in Trinidad and Tobago because they are all enforceable at the Industrial Court of Trinidad and Tobago. The first source of law comes from the statutes which emanate from the Parliament of Trinidad and Tobago and they capture the intention of Parliament. The second source of law comes from secondary pieces of legislation such as the Minimum Wages Orders and they emanate from the Ministry of Labour which is empowered to produce such orders by virtue of the primary legislation known as the Minimum Wages Act which emanated from the Parliament of Trinidad and Tobago. These pieces of legislation capture the intention of the Minister of Labour and the views from such social partners as the Employers’ Consultative Association of Trinidad and Tobago, the Trinidad and Tobago Chamber of Commerce, the National Trade Union Congress, the Joint Trade Union Movement, etc. The first source of rules originates from international statutes and they are the least obvious because they emanate from the International Labour Organization which is comprised of member states from the rest of the planet. Such member states work together in order to identify employment rights which should be deemed to be human rights and they capture such human rights within the binding Conventions which normally are accompanied by Recommendations. The second source of rules originates from the Industrial Court whose judges are empowered to make binding rules known as the principles and practices of good industrial relations under the provisions of the Industrial Relations Act, Chapter 88:01. It is a fact that these rules from the Industrial Court are code-like because they cannot be challenged under most circumstances at any other court. These code-like judge-made rules, contained only within the delivered judgments, establish rights and responsibilities for workers and companies. Outside of these code-like judge-made rules, contained within the delivered judgments, these rights and responsibilities of workers and companies are not to be found within any existing statutory instruments within Trinidad and Tobago unless there is a political decision by the Parliament or an authorized minister to introduce a new statute which would impact on the rights and responsibilities of workers and companies.
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d.???? The following excerpts are sections from the Industrial Relations Act which will shed light on the binding nature of these code-like judge-made rules known officially as the principles and practices of good industrial relations:
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“4. ??? (1) For the purposes of this Act, there is hereby established an Industrial Court which shall be a superior Court of record and shall have in addition to the jurisdiction and powers conferred on it by this Act all the powers inherent in such a Court.” (Emphasis by me - DPM)
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“7. ??? (1) In addition to the powers inherent in it as a superior Court of record, the Court shall have jurisdiction—
(a) to hear and determine trade disputes;
(b) to register collective agreements and to hear and determine matters relating to the registration of such agreements;
(c) to enjoin a trade union or other organisation or workers or other persons or an employer from taking or continuing industrial action;
(d) to hear and determine proceedings for industrial relations offences under this Act;
(e) to hear and determine any other matter brought before it, pursuant to the provisions of this Act.” (Emphasis by me – DPM)
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“10.?? (3) ??? Notwithstanding anything in this Act or in any other rule of law to the contrary, the Court in the exercise of its powers shall—
(a) make such order or award in relation to a dispute before it as it considers fair and just, having regard to the interests of the persons immediately concerned and the community as a whole;
(b) 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.” (Emphasis by me - DPM)
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“10.?? (6) The opinion of the Court as to whether a worker has been dismissed in circumstances that are harsh and oppressive or not in accordance with the principles of good industrial relations practice and any order for compensation or damages including the assessment thereof made pursuant to subsection (5) shall not be challenged, appealed against, reviewed, quashed or called in question in any Court on any account whatever.” (Emphasis by me - DPM)
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“18. ? (1) Subject to subsection (2), the hearing and determination of any proceedings before the Court, and an order or award or any finding or decision of the Court in any matter (including an order or award)—
(a) shall not be challenged, appealed against, reviewed, quashed or called in question in any Court on any account whatever; and
(b) shall not be subject to prohibition, mandamus or injunction in any Court on any account whatever.
(2) Subject to this Act, any party to a matter before the Court is entitled as of right to appeal to the Court of Appeal on any of the following grounds, but no other:
(a) that the Court had no jurisdiction in the matter, but it shall not be competent for the Court of Appeal to entertain such ground of appeal, unless objection to the jurisdiction of the Court has been formally taken at some time during the progress of the matter before the making of the order or award;
(b) that the Court has exceeded its jurisdiction in the matter;
(c) that the order or award has been obtained by fraud;
(d) that any finding or decision of the Court in any matter is erroneous in point of law; or
(e) that some other specific illegality not mentioned above, and substantially affecting the merits of the matter, has been committed in the course of the proceedings.
(3) On the hearing of an appeal in any matter brought before it under this Act, the Court of Appeal shall have power—
(a) if it appears to the Court of Appeal that a new hearing should be held, to set aside the order or award appealed against and order that a new hearing be held; or
(b) to order a new hearing on any question without interfering with the finding or decision upon any other question, and the Court of Appeal may make such final or other order as the circumstances of the matter may require.
(4) The Court of Appeal may in any matter brought on appeal before it, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred although it is of the opinion that any point raised in the appeal might have been decided in favour of the appellant.”
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e.????? The common thread which binds the two (2) sources of laws and the two (2) sources of rules mentioned above are the judgments which are delivered by the Industrial Court of Trinidad and Tobago, appeals against judgments which are delivered by the Court of Appeal of Trinidad and Tobago and appeals at the Privy Council which is stationed in the United Kingdom. Given that Trinidad and Tobago is part of the Caribbean and part of the Commonwealth of Nations, judgments which emanate from Guyana, Jamaica, Belize, the Caribbean Court of Justice (the CCJ), the Employment Appeals Tribunal of England, the Court of Appeal of the England, and the Supreme Court of the United Kingdom are also used for persuasive guidelines if those matters bear resemblance to similar subject matters which are being argued in front of the judges from the Industrial Court of Trinidad and Tobago.
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f.?????? In view of the above, it is to the judgments that we all must look to in order to discover what the statutory rights of workers actually are by virtue of the interpretation which are made by the court system of those rights. Consequently, it is quite possible that a statutory right of a worker today may be directly reduced or increased due to an interpretation from the Industrial Court of Trinidad and Tobago, the Court of Appeal of Trinidad or the highest appeals court for Trinidad and Tobago which is the Privy Council. Additionally, the statutory rights of the worker may also be reduced or increased by an interpretation of persuasive authorities / judgments which have been delivered by other Caribbean countries with a similar colonial history as ours, or from interpretations on similar challenges which emanate from the Employment Appeals Tribunal of England, the Court of Appeal of England and the Supreme Court of the United Kingdom.
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g.???? Books by eminent legal minds are also used when treating with the statutory rights of workers. In Trinidad and Tobago, I have observed from since 1997 that Selwyn’s Law of Employment has proven to be quite popular with the judges from the Industrial Court of Trinidad and Tobago. Currently, as of February 2025, the library of the Industrial Court of Trinidad and Tobago has up to the 20th Edition of Selwyn’s Law of Employment and this edition captures the judgments which have been delivered in the United Kingdom up to the middle of 2018. ?
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h.???? This article contains the following topics:
1.???? Introduction
2.???? Proof That The Industrial Court Of Trinidad And Tobago Has Recognized That The International Labour Organization Delivers International Rules Which Are Binding On Member States
3.???? Landmark Judgment From The High Court Of Trinidad & Tobago Clearly Rejects The Common Law When Dealing With A Worker’s Statutory Rights Via The Intention Of Parliament
4.???? Similarly, A Landmark Judgment From The Supreme Court Of The United Kingdom Clearly Rejects Using The Common Law Within The Contract Of Employment
5.???? The Contracting Out Of The Workers’ Rights Provided By Primary Legislation Is Fraud
6.???? The Contracting Out The Worker’s Statutory Rights Which Were Given Via A Secondary Piece Of Legislation From The Ministry Of Labour Is Also Illegal
7.???? The Widely Recognized And Perennial Duty Of The Industrial Court Is To Give Binding Rulings Which Can Only Be Challenged On A Point Of Law
8.???? What Exactly Are The Terms And Conditions That Fall Under The Jurisdiction Of The Industrial Court?
9.???? Unconscionable Terms In A Contract Of Employment That Reeks Of An Imbalance Of Power Are Rejected By The Industrial Court
10. A Company Cannot Instruct A Worker To Break The Law Of The Country Because That Is A Potential Constructive Dismissal
11. The Industrial Court Is More Than A Court Of Law Because It Is A Court Of Common Sense, Which Should Not Be Adulterated By Legal Technicalities From Lawyers Or Violations Of Natural Justice By Incompetent Policy Makers
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2. Proof That The Industrial Court Of Trinidad And Tobago Has Recognized That The International Labour Organization Delivers International Rules Which Are Binding On Member States
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a.????? Under mentorship training persons within the field of Industrial Relations would normally be exposed to documents from the International Labour Organization which would not normally be a topic of discussion in their academic pursuit, unless they were reading a module on Employment Law in order to write an exam, are being trained as a shop steward by a union or are being trained by the Ministry of Labour of Trinidad and Tobago to be a Conciliation and Labour relations Officer. Have I missed out on anyone else who is trained about the documents from the International Labour Organization without that training being connected to an exam?
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b.???? The following are the four (4) most applied ILO documents which have been incorporated into the judgments being delivered by the Industrial Court of Trinidad and Tobago:
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??????????????????????????? I.??????? Convention No. 158 of 1982 - Termination of Employment Convention;
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???????????????????????? II.??????? Convention No. 132 – Convention concerning Annual Holidays with Pay (Revised), 1970;
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?????????????????????? III.??????? Recommendation No. 198 of 2006 – Employment Relationship Recommendation; and
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?????????????????????? IV.??????? Convention No. 155 of 1981 – Occupational Safety and Health Convention.
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c.????? TRADE DISPUTE NO. 140 OF 1997, delivered on March 3rd 1997, in the Industrial Court between BANK AND GENERAL WORKERS’ UNION and HOME MORTGAGE BANK is a landmark example of the Industrial Court incorporating Convention No. 158 of 1982 - Termination of Employment Convention. The excerpts from this judgment will elucidate exactly how the Industrial Court introduces these international rules so that they become the human rights of the workers in Trinidad and Tobago: ??
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(Page 5)
“The Union’s submissions
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(a)? The worker was employed for a fixed term of six months which commenced on May 28, 1996 and the Employer was not entitled to terminate the contract before November 28, 1996….
…(c) The Employer violated the provisions of Convention No. 158 of the International Labour Organization and violated the principles of good industrial relations practice in terminating the worker’s contract.”
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(Pages 5 to 6)
“The Employer’s submissions:
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(a)? The contract was not a fixed term contract but was one terminable by notice….
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….(g) The Termination of Employment Convention, 1982 (I.L.O. Convention No. 158) has not been ratified by Trinidad and Tobago and is not binding on Trinidad and Tobago but is a persuasive authority. The recommendation to Article 2 of the I.L.O. Convention No. 158 states that a member state may exclude from all or some of its provisions workers who engage under a contract of employment –
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“for a specified period of time or a specified task.” (Emphasis ours) ”
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(Page 9)
“The principles of good industrial relations practice dictate that no worker’s employment may be terminated except for a valid reason connected with his capacity to perform the work for which he was employed or which is founded on the operational requirements of an employer’s business. These principles are enshrined in writing in Convention No. 158 of the International Labour Organization (“I.L.O. Convention No. 158”). ILO Convention has put in written form long standing principles of good industrial relations practice and it is of no consequence that the Convention has not been ratified by Trinidad and Tobago. It is not applicable as part of the domestic law of Trinidad and Tobago but as evidence of principles of good industrial relations practice which have been accepted at an international level.”
(Damages were ordered in this trade dispute)
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d.???? The following are recent judgments which have followed TRADE DISPUTE NO. 140 OF 1997, because it is a landmark judgment and, in this regard, they all referred to Convention No. 158 - Termination of Employment Convention:
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·??????? TRADE DISPUTE NO. GSD-TD 782 OF 2018, delivered on March 24th, 2021, in the Industrial Court between GOVERNMENT INDUSTRIAL AND GENERAL WORKERS UNION and S.M. JALEEL AND COMPANY LIMITED – Damages were ordered here;
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·??????? TRADE DISPUTE NO. GSD-TD 315 OF 2011, delivered on October 11th 2022, in the Industrial Court between OILFIELDS’ WORKERS TRADE UNION and CARIBBEAN HEALTH RESEARCH COUNCIL and CARIBBEAN PUBLIC HEALTH AGENCY – Damages were ordered here; and
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·??????? TRADE DISPUTE NO. GSD-RSBD 009 OF 2021, delivered on December 11th 2023, in the Industrial Court between NATIONAL HEALTH WORKERS UNION and HOPE RESEARCH TRINIDAD LIMITED – Damages were ordered here.
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e.????? Convention No. 132 – Convention concerning Annual Holidays with Pay was featured in ESD NO. 7 OF 2000, delivered on March 4th 2002, in the Industrial Court between THE SUPERINTENDENTS’ ASSOCIATION and BWIA INTERNATIONAL AIRWAYS LIMITED. As you will see, the following excerpt dealing with this Convention was also quoting from a much earlier judgment from the Industrial Court of Trinidad and Tobago which is one of the earliest judgments to quote an I.L.O. Convention:
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(Pages 11 to 13)
“On the question of forced leave the Court has the benefit of its earlier judgments in ESD Nos. 5 and 6 of 1980 between Water and Sewerage Authority and Public Services Association where the Court turned to the International Labour Organisation’s Recommendation No. 98 from which it quoted as follows:
“That there should be consultation between employer and worker regarding the time when annual holiday with pay is to be taken and that in determining the time the personal wishes of the worker should be taken into account as far as possible.
That the worker should be notified of the date on which the annual holiday with pay is to begin sufficiently in advance so that he could make use of his holiday in an appropriate manner.”
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In that case Her Honour Mrs. Riley-Hayes ordered that the worker be granted ninety days’ leave in addition to that to which he was entitled. In the course of her judgment she said this:
“… considering the purpose of leave – a period of rest and leisure, although (the worker) was away from work for a period well in excess of his legitimate entitlement, I hold that in good conscience, (the worker) who had worked continuously more or less only to have his rest period marred by bad human relations should be granted a period of ninety (90) days leave, in addition to whatever leave is at present due to him.”
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The ILO Recommendation from which Her Honour Mrs. Riley-Hayes quoted is codified in Article 10 of Convention No. 132 which reads as follows:
“1. ? The time at which the holiday is to be taken shall, unless it is fixed by regulation, collective agreement, arbitration award or other means consistent with national practice, be determined by the employer after consultation with the employed person concerned or his representative.
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2.????????? In fixing the time at which the holiday is to be taken, work requirements and the opportunities for rest and relaxation available to the employed person shall be taken into account.”
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In Trade Dispute No. 55 of 1997 between Seamen and Waterfront Workers’ Trade Union and Port Authority of Trinidad and Tobago the Court followed the decision of an earlier bench in Trade Dispute No. 122 of 1990 between University of the West Indies and University and Allied Workers Union and held that in summarily sending a worker on leave without prior consultation with him (and contrary to his wishes) the Port Authority had acted in a manner inconsistent with the principles of good industrial relations practice. The Court ordered the payment of compensation to the worker…
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… We hold that the Company acted unreasonably towards each of the Workers in sending them on leave without adequate notice after permitting them to accumulate an excessive amount of leave through having denied their application for leave year after year to meet the convenience of the Company.”
(Damages were ordered for the three (3) affected workers)
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f.?????? Recommendation No. 198 of 2006 – Employment Relationship Recommendation was first incorporated by the Industrial Court of Trinidad and Tobago in TRADE DISPUTE NO. 31 OF 2004, delivered on October 18th 2006, in the Industrial Court between COMMUNICATION WORKERS’ UNION and MIKE PHILLIP LIMITED. ?This is a landmark as it was the first one of its kind after the Recommendation was issued by the ILO. The following two (2) excerpts from this judgment will be quite self-explanatory:
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(Pages 8 to 11)
“THE ISSUES
Based on the facts and the evidence, the questions for the Court to determine are whether there was an employment relationship between the Company and the worker and if so was that relationship terminated by the Company on November 6, 2002.
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THE LAW
Section 2 of the Industrial Relations Act, Ch. 88:01, defines an employer as follows:-
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“employer” means a person who employs a worker and the term shall include—
(a) such persons acting jointly for the purpose of collective bargaining;
(b) an association or organisation of employers that is a trade union registered under the Trade Unions Act; and
(c) a person for whose benefit work or duties is or are performed by a worker under a labour only contract, within the meaning of subsection (4)(b);”
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Subsection 4 (b) states:-
“where a person engages the services of a worker for the purpose of providing those services to another, then, such other person shall be deemed to be the employer of the worker under a labour only contract.”
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In Ready Mixed Concrete (South East) Ltd. v. Minister of Pensions and National Insurance [1968] 1 All E.R. 433 MacKenna J, using language of master and servant, gave the basic requirements of a contract of employment. He said that:-
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“(i) ?? The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master [mutuality of obligations].
(ii) ??? He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master.
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(iii) ?? The other provisions of the contract are consistent with it being a contract of service.”
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In Cable & Wireless Plc v Muscat [2006] I.C.R. 975, the Court addressed issues arising from a triangular employment relationship involving an employment agency. The Court held that in considering the status of a person who worked under the control of an end-user but was paid by an employment agency, the correct approach was to consider the possibility of the existence of an implied contract of employment in the light of all the evidence about the parties’ relationship. An implied contract would only be inferred where it was necessary to give business reality to the relationship between the parties and where both the irreducible minimum requirements of mutuality and control by the end-user were present but it did not matter that remuneration was paid indirectly through the agency, so long as it was provided by the end-user. On the specific facts of that case, the Court found that the applicant was an employee and it was necessary to infer the continuing existence of an employment contract in order to give reality to the relationship and arrangements between the parties.
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Though not having the force of the law, International Labour Organization (ILO) Recommendation 198, “The Employment Relationship Recommendation, 2006” which was adopted on June 15, 2006, is pertinent to this matter. In the preamble to the Recommendation which sets out the rationale for the Recommendation, it acknowledges, inter alia, that there are
“… difficulties of establishing whether or not an employment relationship exists in situations where the respective rights and obligations of the parties concerned are not clear, where there has been an attempt to disguise the employment relationship, …”. ?
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At clause 4 (b), the Recommendation suggests that national policy should at least include measures to:-
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(a)????????????? Provide guidance for the parties concerned, in particular employers and workers, on effectively establishing the existence of an employment relationship and on the distinction between employed and self-employed workers;
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(b)???????????? Combat disguised employment relationships in the context of, for example, other relationships that may include the use of other forms of contractual arrangements that hide the true legal status, noting that a disguised employment relationship occurs when the employer treats an individual as other than an employee in a manner that hides his or her true legal status as an employee, and that situations can arise where contractual arrangements have the effect of depriving workers of the protection they are due; (emphasis ours) ?
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The General Conference of the ILO meeting in its 91st Session in 2003, adopted a number of conclusions by Resolution after undertaking a general discussion on the basis of Report V, “The Scope of the Employment Relationship”. Conclusion 7 of that Report, inter alia, cited “False self-employment, false subcontracting, the establishment of pseudo cooperatives, false provision of services and false company restructuring as being amongst the most frequent means that are used to disguise the employment relationship.” ”
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(Pages 13 to 14)
“Termination of the Employment Relationship
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There were inconsistencies in the evidence of both parties on the facts surrounding the last day of employment of the worker. In its written evidence and arguments, the Union said that the worker left [the worksite] on November 6, 2002 and went to the Company’s office on November 8, 2002 to collect his wages and belongings. There was no mention of his reporting to the Company on the day of the incident. However, in his evidence, the worker said he attended a meeting with the Managing Director on that day.
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Burrows said in his evidence that November 6, 2002, was the last day of the Petrotrin job but in the Company’s written Evidence and Arguments, the Managing Director is said to have told the worker on November 8, 2002, two days later, that he should check with Burrows about work as there was sufficient labour on the site to complete the job at Petrotrin.
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If indeed the worker was a subcontractor as held out by the Company, there would be nothing unusual about him not going to the Company after completing of the Petrotrin job until he was due to start another job, which Burrows said was due to start the following week, though mobilization for the job started earlier. Moreover, if he was employed with Cyril at the time of the incident at Petrotrin, he would not be obligated to follow any instructions from Burrows, including returning to the Company’s office to speak to the Managing Director.
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On all the evidence we find the Company’s failure to employ the worker after November 6, 2002, to be tantamount to dismissal. We believe that those actions were influenced by the fact that the worker sought to be paid the rate for the job as agreed with OWTU. He had been promised another job by the Company immediately following the Petrotrin job and we find the Company’s actions in denying him that job after he raised the question of the correct rate for the previous job to be not in accordance with the principles of good industrial relations practice.”
(Damages were ordered for the worker)
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g.???? In ESD NO. 74 OF 2002, delivered on January 27th 2007, in the Industrial Court between BANKING, INSURANCE AND GENERAL WORKERS’ UNION and TRI-STAR (LATIN-AMERICA) LIMITED and SOUTH WEST REGIONAL HEALTH AUTHORITY and TOBAGO REGIONAL HEALTH AUTHORITY, the Court again adopted the guidelines contained within Recommendation No. 198 of 2006 – Employment Relationship Recommendation. The following three (3) quotations will be quite instructive:
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(Pages 2 to 4)
“In the hearing of this dispute the Court was not presented with any challenge to the Union’s contentions that:
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·??????? “There was no basis to justify the demotion of the Worker and consequential reduction of his salary.
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·??????? The Company did not give the Worker an opportunity to be heard nor ??was he provided with the relevant information before the decision was made to demote the Worker.
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·??????? The Company acted contrary to an implied term of the Worker’s employment contract to act in good faith towards him.
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·??????? The Worker experienced undue hardship as a result of the cut in his salary of approximately $3,000.00.
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·??????? The actions of the Company were harsh, oppressive and not in keeping with the principles and practices of good industrial relations.”
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Instead, the only issue in dispute for the Court’s determination was as to the true identity of the Worker’s employer. Tri-Star (Latin-America) Limited [“the Company” or “Party No. 2”] denied at the outset that there was an employment relationship between the Company and Mr. Hazel, since Mr. Hazel was a Tobago Regional Health Authority [“TRHA” or “Proposed Party No. 4”] employee when recruited into the Pilot Project.
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As Tri-Star (Latin-America) Limited ceased involvement in the EHSTT Pilot Project in December 2002 the question also arose as to whether the South West Regional Health Authority [“SWRHA” or “Proposed Party No. 3”] in taking over the operation at that time, became Mr. Hazel’s employer.
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Questions, such as those arising in this dispute, have increasingly raised concerns in the globalized evolution of good industrial relations practices. The most recent General Conferences of the International Labour Organization, met on May 31, 2006 to consider inter alia:-
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“the difficulties of establishing whether or not an employment relationship exists in situations where the respective rights and obligations of the parties concerned are not clear, where there has been an attempt to disguise the employment relationship ….” ?
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It was decided that international guidance to members was required in achieving inter alia, protection for workers where contractual arrangements in certain situations would otherwise have the effect of depriving them “of the protection they are due”. The resulting International Standard adopted by the ILO Conference was R. 198 Employment Relationship Recommendation, 2006.
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The Court, in determining the employment relationship issues raised herein, does so in accordance with Section 10 (3) (b) of the Industrial Relations Act Chapter 88:01.
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We are thereby required 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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In so doing the ILO recommendation referred to above, as well as other international and local precedents, can be considered and applied to the factual circumstances before us with a view to deciding whether the Worker is entitled to protection within an employment relationship.” (Emphasis by me – DPM)
(Pages 18 to 20)
“Contemporary analysis recognizes the complexities occasioned, particularly where there may be elements of overlapping otherwise called triangular or tripartite relationships affecting a worker. There may for instance be one relationship with an “agency” which pays the worker and another with a “user” which normally orders how the work is done and takes the direct benefit of the services provided. Workers in this situation are seen as exposed to risk of injustice as both agency and user may deny employer status.
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The ILO in guiding member states on methods to address such potential injustice provides in R. 198 Employment Relationship Recommendation, 2006 that:-
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“the determination of the existence of such a relationship should be guided primarily by the facts relating to the performance of work, and the remuneration of the worker, notwithstanding how the relationship is characterized in any contrary arrangement, contracted or otherwise, that may have been agreed between the parties.”
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It is further recommended that members implement by legislation or by other means specific indicators of the existence of an employment relationship. Among these, the fact of periodic payment of remuneration to the worker and the fact that such remuneration constitutes the worker’s sole or principal source of income, are recommended indicators.
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Recent case law from the United Kingdom provides other indicators which have guided the determination as to employment status in circumstances of overlapping relationships. In Motorola Ltd. v. Davidson & Melville Craig Group Ltd. [2001] IRLR 4, a Mr. Davidson was recruited by Melville Craig Group Ltd for a mobile phone analyzer position at Motorola. He was assigned to work at Motorola and in return Motorola paid Melville Craig Group Ltd for his services. Eventually, he was suspended and then dismissed pursuant to disciplinary proceedings undertaken by a Motorola Manager. The Employment Appeals Tribunal [EAT] had to determine whether the first instance Tribunal correctly concluded that as between Motorola and Mr. Davidson there existed the right of the former to control the latter to a degree sufficient to enable the Tribunal to regard Motorola as the Employer. Among the indicators examined were the following:-
·??????? The recruitment process – Motorola controlled the specifications for prospective employees.
·??????? Mr. Davidson went through induction with Motorola.
·??????? He received instructions from Motorola Employees.
·??????? He used Motorola’s tools.
·??????? If he had a grievance he contacted his Motorola supervisor.
·??????? He obeyed Motorola factory rules.
·??????? He was disciplined by Motorola employees while Melville Craig Ltd’s representatives knew nothing about the disciplinary problems at all.
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On these facts the EAT dismissed Motorola’s appeal and agreed with the Tribunal’s finding that Mr. Davidson’s employer was Motorola. This approach by the EAT is reflected in other decisions and also with the guidance provided by the ILO. This approach can in our view be taken as evidence of principles of good industrial relations practices whereby in cases of disguised work relationships the worker must, where the practical reality of his status allows, be protected from loss of recourse to an employer.”
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(Page 23)
“Decision
The Union in this Trade Dispute has established and we so find on a balance of probabilities, that the Company, by its conduct towards the Worker and based on indicators in the relationship with the Worker, was in fact the Worker’s employer.
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It is our further finding based on the unchallenged evidence on events surrounding the November 11, 2002 action taken against the Worker, that the Worker suffered hardship due to the harsh and oppressive circumstances of the action. The said action though expressly stated as “relieving the worker of extra responsibilities” in effect amounted to a demotion from a position he held for approximately two and a half 2 1/2 years, in a supervisory capacity. The fact that the supervisory position lost with immediate effect and with no prior warning exacerbates the harshness of the action. The action taken could in the circumstances have been deemed a Constructive Dismissal had the Worker not decided to continue in the demoted position, while seeking the Court’s intervention to reinstate him in the position.
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It is in this context that the Union’s claim not only for compensation based on the quantum of earnings reduced but also damages for hardship suffered, is reasonable.”
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h.???? ESSENTIAL SERVICES DIVISION (ESD) TRADE DISPUTE NO. 17 OF 2002, delivered on December 13th 2006, in the Industrial Court between OILFIELDS WORKERS’ TRADE UNION and TRINIDAD AND TOBAGO ELECTRICITY COMMISSION is a landmark example of the Industrial Court incorporating Convention No. 155 of 1981 – Occupational Safety and Health Convention. 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:
(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.”
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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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i.?????? From all of the references in this part of the Article, it is quite straight forward to appreciate that the Industrial Court of Trinidad and Tobago looks to the Conventions and Recommendations from the International Labour Organization (ILO) before arriving at a final decision within any trade dispute in front of them. In this regard, a word to the wise ought to be sufficient.
3. Landmark Judgment From The High Court Of Trinidad & Tobago Clearly Rejects The Common Law When Dealing With A Worker’s Statutory Rights Via The Intention Of Parliament
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Essential for the understanding of this sub-heading is a quotation from CV 2014-02908, delivered on May 5th 2017, In the High Court of Justice of the Republic of Trinidad and Tobago between CHERYL ANN LAI HING AND 32 OTHER CLAIMANTS and SUGAR INDUSTRY LABOUR WELFARE COMMITTEE.? The following quotation from Paragraphs 123 to 130 will be very instructive in this regard.
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“123. The question of whether the Court can ignore a statutory requirement and imply common law rights was explored in the case of Johnson v Unisys Ltd. In that case, the issue was whether damages for dismissal should be developed by the common law when there was legislation which created statutory employment tribunals. The House of Lords found that any common law implied terms ought to abide by (and not conflict with or amplify) the legislative determinations which had been made. Therefore, any claim for damage for dismissal would have to be advanced before the statutory employment tribunals and not the High Court.
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124. ? The Court applied the settled principle that the Court is not to seek to develop areas of the common law where Parliament has enacted laws to do so. Lord Hoffman explained the principle as:
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“[37] …judges, in developing the law, must have regard to the policies expressed by Parliament in legislation. Employment law requires a balancing of the interests of employers and employees, with proper regard not only to the individual dignity and worth of the employees but also to the general economic interest. Subject to observance of fundamental human rights, the point at which this balance should be struck is a matter for democratic decision. The development of the common law by the judges plays a subsidiary role. Their traditional function is to adapt and modernize the common law. But such developments must be consistent with legislative policy as expressed in statutes. The courts may proceed in harmony with Parliament but there should be no discord.”
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[58] I can see no answer to these questions. For the judiciary to construct a general common law remedy for unfair circumstances attending dismissal would be to go contrary to the evident intention of Parliament that there should be such a remedy but that it should be limited in application and extent.
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[59] The same reason is in my opinion fatal to the claim based upon a duty of care. It is of course true that a duty of care can exist independently of the contractual relationship. But the grounds upon which I think it would be wrong to impose an implied contractual duty would make it equally wrong to achieve the same result by the imposition of a duty of care.” (Emphasis added)
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125. ? In Johnson Lord Millet noted that it is a recipe for chaos for the Court to permit the development of the common law in a manner which may conflict with statutory provisions.
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“[79] But the courts might well have developed the law in a different way by imposing a more general obligation upon an employer to treat his employee fairly even in the manner of his dismissal. They could not, of course, have overridden any express terms of the contract or have held the dismissal itself to be invalid. As in the case of the statutory right, employers would probably have responded by introducing their own procedures of complaint and warning before eventual dismissal. But there would have been this difference: they would surely have taken care to incorporate such procedures into the contract of employment so that an employee who was dismissed in accordance with the procedure laid down in his contract could not claim damages for breach of an implied term.
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[80] But the creation of the statutory right has made any such development of the common law both unnecessary and undesirable. In the great majority of cases the new common law right would merely replicate the statutory right; and it is obviously unnecessary to imply a term into a contract to give one of the contracting parties a remedy which he already has without it. In other cases, where the common law would be giving a remedy in excess of the statutory limits or to excluded categories of employees, it would be inconsistent with the declared policy of Parliament. In all cases it would allow claims to be entertained by the ordinary courts when it was the policy of Parliament that they should be heard by specialist tribunals with members drawn from both sides of industry. And, even more importantly, the coexistence of two systems, overlapping but varying in matters of detail and heard by different tribunals, would be a recipe for chaos. All coherence in our employment laws would be lost.” (Emphasis added)
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126. ? The OSH Act created statutory health and safety standards and together with such standards specific statutory procedures for protection and remedies for breach. It provided a threshold to justify an employee being paid a salary when he/she did not work which is the Inspector must make such a determination. In doing so it has set an objective process and a process for an aggrieved party to follow if unsatisfied with the Inspector’s finding.
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127. ? In the local Court of Appeal decision of AG v Chaman Algoo39 Davis JA at pages 13 and 14 quoting from the judgement in Wolverhampton New Waterworks Co. v Hawkesford40 repeated the position that where a liability does not exist at common law but it is created by statute the remedy provided in the statute must be followed:
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“There are three classes of cases in which a liability may be established founded upon a statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of case is where the statute gives the right to sue merely, but provides no particular form of remedy: there the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. … The remedy provided by the statute must be followed, and it is not competent to a party to pursue the course applicable to cases of the second class.” Emphasis added
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128. ? In my opinion, given the comprehensive statutory framework in the OSH Act the High Court has no jurisdiction to determine the appropriate health and safety standards since to step outside of the legislative framework would be usurping the statutory jurisdiction of the Inspector, the Chief Inspector and the Industrial Court.
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129. ? In the instant case it was not in dispute that: the Claimants accepted the findings of the Inspector in the OSHA report; the Inspector did not issue a prohibition notice; the Inspector did not make a finding that the conditions of work are likely to endanger the employees; and the Claimants did not follow the process set out in the OSH Act to appeal the findings of the Inspector to the Chief Inspector. The Claimants having failed to follow the procedure under the OSH Act to challenge the Inspector’s findings cannot launch a collateral attack on the said findings outside of the established statutory process established by the OSH Act. In my view, to do so would amount to an abuse of process.
130. ? Fourthly, even if the High Court had the power to develop a common law remedy in a manner which conflicts with the OSH Act, the Claimants did not adduce any expert evidence to support their allegations Claimants of the poor health and safety standards. The evidence before the Court are contested accounts on complaints of dust, air quality, the prevalence of rodents, the degree of moisture and humidity. None of the Claimants witnesses were experts in the matters complained of which are all are highly technical matters.”
4. Similarly, A Landmark Judgment From The Supreme Court Of The United Kingdom Clearly Rejects Using The Common Law Within The Contract Of Employment
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The Supreme Court judgment from the United Kingdom between GISDA CYF V BARRATT [2010] UKSC 41, delivered on October 13th 2010, is quite instructive in revealing that the common law rules have to give way to the employment legislation from Parliament. The following quotation will ascertain this view:
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“39 ?? The need to segregate intellectually common law principles relating to contract law, even in the field of employment, from statutorily conferred rights is fundamental. The common law recognised certain employment rights, but the right at common law not to be wrongfully dismissed is significantly narrower than the statutory protection against unfair dismissal. The deliberate expansion by Parliament of the protection of employment rights for employees considered to be vulnerable and the significance of the creation of a separate system of rights was recognised by the House of Lords in Johnson v Unisys Ltd [2001] ICR 480. In that case the employee had succeeded in an unfair dismissal claim but, because of the statutory cap on compensation, sought to bring a claim at common law for breach of an implied term of trust and confidence during the dismissal process. The House of Lords refused to permit the supplanting of the legislative scheme by entertaining a second claim at common law. The leading judgment of Lord Hoffmann recognised the deliberate move by Parliament away from the ordinary law of contract as governing employer/employee contractual relations. At para 35 of his opinion Lord Hoffmann said:
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At common law the contract of employment was regarded by the courts as a contract like any other. The parties were free to negotiate whatever terms they liked and no terms would be implied unless they satisfied the strict test of necessity applied to a commercial contract. Freedom of contract meant that the stronger party, usually the employer, was free to impose his terms upon the weaker. But over the last 30 years or so, the nature of the contract of employment has been transformed. It has been recognised that a person’s employment is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem. The law has changed to recognise this social reality. Most of the changes have been made by Parliament. The Employment Rights Act 1996 consolidates numerous statutes which have conferred rights upon employees . . .”” (Emphasis by me – DPM)
5. The Contracting Out Of The Workers’ Rights Provided By Primary Legislation Is Fraud
For purposes of the standalone nature of this article, I have reused this quotation from a judgment which was referred to in an earlier article dealing with the fixed term contract of employment and retrenchment and redundancy principles.
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In RSBD No. 4 of 1996 delivered on February 24th, 1997, in the Industrial Court between OILFIELDS WORKERS’ TRADE UNION and SCHLUMBERGER TRINIDAD INC, the Industrial Court held that it was a fraud on the Retrenchment and Severance Benefits Act to give an employee twenty (20) six (6) months fixed-term contract over a ten (10) year period and to deny him severance when he became redundant to the needs of the Company.?
(Page 2)
“…The Aggrieved was employed by the Company on or about 7th February 1985 as a casual wireline helper, a position in which he worked continuously until August 1987 when the Company requested him to sign a “temporary worker agreement” for employment in the position of “wireline testing assistant.” That agreement was for a period of six months. On expiry of the agreement the Aggrieved was required by the Company to sign a series of similar six-monthly contracts. Where there was a gap between the expiry of one contract and the commencement of the succeeding one (usually not more than a week or two) the Aggrieved was employed by the Company as a casual worker. There was, therefore, no break in his services with the Company over a period of more than ten years when the last of these “temporary worker agreements” expired on or about 26th April 1995. The Company then employed the Aggrieved as a casual worker until 4th May 1995 when, by letter, it informed him that due to a downturn in its activities it was not possible for the Company to renew his contract. At that time the Aggrieved had been in receipt of a salary of $4,918 per month. The Company did not then pay and has not up to now, paid the Aggrieved any severance benefits. The Union contends that the Aggrieved is entitled to such benefits under the Retrenchment and Severance Benefits Act, 1985 (the Act).” (Emphasis by me – DPM)
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(Pages 15 and 16)
“…We have come to the conclusion that the same spirit which guided the courts in those cases to which we have referred should guide this Court in interpreting the relevant provisions of the Retrenchment and Severance Benefits Act. We must look beyond the veneer of the contract and expose to full view what in reality is a mere attempt at circumvention of the Act. Can it be said in this case that the contract which the Company asks this Court to uphold was not, by implication, forbidden by the Act – an Act made for the benefit of persons in the position of the Aggrieved? A contract which seeks to take away from him such benefit must lead to infringement of the Act. We so hold.
Section 18 (5) of the Act creates an entitlement for every worker to whom the Act applies who is retrenched on or after 1st January 1985. We hold that a worker, for whose benefit the legislation was enacted, cannot contract out of its provisions and that any attempt to do so by agreement with his employer WOULD BE NULL AND VOID AND OF NO EFFECT. Any such provision in a contract of employment of a worker would be severable from that contract on the ground of repugnancy to the Act and the Court would treat the term as severed from the contract and would give no effect to it. We venture to say that contracts containing terms such as those found in the successive short term contracts which the Aggrieved was required to sign CONSTITUTE A FRAUD on the Retrenchment and Severance Benefits Act and are contrary to the policy of the Act and the common good. It is for the protection of workers such as the Aggrieved that the Court must refuse to enforce such a provision in a contract of employment, where to enforce it would result in depriving the worker of benefits which Parliament had conferred on him by statute. In the circumstances we deem the offending provision, in so far as it would have disentitled the Aggrieved to be paid severance benefits to be severed from each of the successive six monthly contracts which the worker was required to sign. We therefore find that the Aggrieved had been a worker in continuous employment with the Company from 17th February 1985 to 4th May 1995 and order that severance benefits be calculated in accordance with section 18 of the Act for the period 17th February 1985 to 4th May 1995 and paid by the Company Schlumberger Trinidad Inc. to the Aggrieved, Mr. Trevor Dewsbury, within 21 days of the date of this judgment.” (Emphasis by me – DPM)
6. The Contracting Out The Worker’s Statutory Rights Which Were Given Via A Secondary Piece Of Legislation From The Ministry Of Labour Is Also Illegal
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TRADE DISPUTE NO. 223 OF 2001, delivered on January 24th 2003, in the Industrial Court between NATIONAL UNION OF DOMESTIC EMPLOYEES and K. ALLEN AND SONS FUNERAL is one of the earliest judgments which tackled the non-contracting out of the rights of a worker which are provided within a statute that did not emanate from Parliament as a legislative instrument which was approved by the Lower House and the Upper House because a Minimum Wages Order is developed by the Line Minister from the Ministry of Labour. The following quotation will be instructive:
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(Pages 5 to 6)
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“We note that this dispute was not brought under the Minimum Wages Act Chap. 88:04 and the Minimum Wages Order 1999. Notwithstanding this, it would be remiss of us if we did not mention that an agreement entered into by the Employer and the worker which is detrimental to or restricts the rights or obligations of the worker, under the Act, is illegal. Therefore, to say that the worker agreed not to accept payment for public holidays of that he agreed to contract out of this benefit is contrary to law and to the principles and practices of good industrial relations.
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The Court did point out to the Employer, while he was testifying, that the current matter is covered by the Minimum Wages Order 1999. We observed that the Employer maintained a defensive posture when he replied that he was paying above the minimum wage. However, on the evidence, we find that the worker was paid $1.90 below the National Minimum Wage of $7.00.
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In our opinion, the principles and practices of good industrial relations stipulate that the renumeration paid to a weekly paid worker should not be abated by reason of a public holiday falling within the workweek. In the instant dispute the worker worked in excess of 40 hours and he worked the day before and after the public holidays. On that basis he is entitled to payment for the public holidays at flat rate.
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On the whole of the evidence before us, we find, having regard to the principles and practices of good industrial relations, that the Employer failed in good faith to honour the obligation to pay wages for public holidays in 2001 to the worker in accordance with the terms and conditions of his employment.”
7. The Widely Recognized And Perennial Duty Of The Industrial Court Is To Give Binding Rulings Which Can Only Be Challenged On A Point Of Law
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A.?????????????? While there are certain areas of the Industrial Relations Act, Chapter 88:01, as amended, which can be considered as a code because of what they state about collective bargaining in Trinidad and Tobago, it is also a fact that the same Industrial Relations Act has said nothing about the various individual rights which workers enjoy today. Consequently, over the years, it has been explained by the Court system that it is the function of the Industrial Court to establish, in the absence of a code, what are the rights of workers at the place of employment. Accordingly, the following judgments and quotations will be elucidating for this topic:
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TRADE DISPUTE NO. 106 OF 1977, delivered on October 19th 1978, in the Industrial Court between LEVER BROTHERS’ (WEST INDIES) LTD and OILFIELDS WORKERS’ TRADE UNION:
(Pages 6 to 8)
“It appears that the point of the right to a hearing was raised in this case following a decision of this Court differently constituted but with the same chairman. In Trade Dispute No. 98 of 1977 between Barclays Bank of Trinidad and Tobago and Barclays Employee Union decided on January 12, 1978 the Court held as follows:-
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“A fundamental principle of natural justice developed under the common law is that a person has a right to be heard in defence of his person or property and the I.L.O. recommendations only restate this principle. Many industrial agreements make provisions for a fixed procedure in disciplinary matters and these give an employee the opportunity of being heard in his defence. The principles of natural justice will override any agreement and where no provision is made, as in this case, for a disciplinary procedure then the principles will apply.”? ??
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In the light of what has been said before this seems to be an over statement of the true position. The English cases quoted in the Barclays Bank case were decided on the Code of Practice issued by the Secretary of State under the Industrial Relations Act 1971 and this established the right of a hearing as recommended by the International Labour Organisation. The comments of Paul Jackson in a discourse on “Natural Justice” in the Modern Legal Studies published in 1973 is pertinent. The relevant part reads:-
“Like the courts the legislature in the Industrial Relations Act 1971 seemed to accept the rights of the employer to dismiss without a hearing. Although Section 22 introduces the concept of “unfair dismissal” the unfairness seems to relate to the grounds of dismissal not the manner. An obligation to give a hearing on the circumstances covered by the Act could only be implied by an extremely strained interpretation of Section 24 (b) --------------------
However, the Code of Practice issued by the Secretary of State under Section 3 of the Act includes a right to a hearing in its elaborate rules regulating the procedure to be followed in dismissing an employee. In a number of cases industrial tribunals and the Industrial Relations Court have held dismissals to be unfair because of a failure to grant a proper hearing in accordance with the code. Although an unfair dismissal give rise to a right to compensation the dismissal remains, as in common law, effective.”
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In our view the concept of unfairness in the English law is the same as harsh, oppressive or not in keeping with good industrial relations practice in our Industrial Relations Act, 1972. Section 22 of the English Act is of the same effect as sections 10 (4) and 10 (5) of our Act. Unfortunately, we have no Code of Practice and it has been left to this Court to determine what are good industrial relations. We have been guided to a great measure by the English practice and the recommendations of the International Labour Organisation and while the decision in the Barclays Dispute may be questioned as far as the statement about natural justice goes, it is clear that it is founded on the principle of good industrial relations practices.
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Mr. Alexander for the Union submitted that the Common Law principles do not apply to industrial law and in particular referred to Section (10) (3) (b) of the Industrial Relations Act 1972 which prescribes that:-
“(3) ?? Notwithstanding anything in this Act or in any rule or law to the contrary, the Court in exercise of its powers shall-….
…(b) 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.” ?
He claims that the common law rule as to the exclusion of the principle of natural justice in employer and employee relations should be ignored. As we have indicated above the principles of good industrial relations, as we gather from the Industrial Labour Organisation recommendations and the English practice, do not call for a consideration of the common law rules relating to natural justice. What can be said is that good industrial relations practice prescribes that a person has a right to be heard in his defence.
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It should be noted that notwithstanding the comments in the Pillai case and those of Paul Jackson quoted above the Employment Appeals Tribunal have in two recent cases affirmed that the rules of natural justice apply in industrial relations. In Khanum v. Mid-Glamorgan Area Health Authority [1978] I.R.L.R. 215 it ruled that there are three basic requirements of natural justice which have to be complied with during the proceeding of a disciplinary inquiry: firstly, that the person should know of the nature of the accusation against him; secondly, that he should be given an opportunity to state his case; and thirdly that the Domestic tribunal should act in good faith. In Bentley Engineering Co. Ltd. v. Ministry EAT 884/70 (not yet reported) it was emphasized that a person must know of the accusation against him for the requirements of natural justice to be satisfied. These support this court’s ruling in the Barclay’s case.”
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B.??????????????? Even the Court of Appeal of Trinidad and Tobago distinctly recognizes that it was the intention of Parliament to give the Industrial Court the sole authority to make the determination of what is industrial relations practice as will be corroborated by the following excerpt from CvA. NO. 87 of 1999, delivered on July 17th 2002 (Judgment was delivered by Chief Justice M. A. de la Bastide), between CARONI (1975) LIMITED and ASSOCIATION OF TECHNICAL ADMINISTRATIVE AND SUPERVISORY STAFF:
(Pages 2 to 5)
“… The Industrial Court is a comparatively recent creation of statute, and so is the right given to appeal from it to the Court of Appeal. The intention of Parliament, clearly expressed in section 10 (6), is that the question whether the dismissal of a worker is in any case harsh and oppressive and contrary to the principles of good industrial relations, should be reserved to the Industrial Court. What distinguishes a dismissal that is harsh and oppressive from one that is not, is a matter which the Act clearly regards as grounded not in law, but in industrial relations practice. This practice, which is not codified in our jurisdiction, is to be determined and applied to the facts of each case by the Industrial Court. The policy of the statute is obviously to entrust that function only to judges of the Industrial Court who come equipped with experience of, and familiarity with, industrial relations practice. This is a qualification which judges of the Supreme Court do not necessarily or even ordinarily have. It is considerations like these which presumably underlie the prohibition in section 10 (6) against the Court of Appeal reviewing the decision of the Industrial Court that the dismissal of a particular worker does or does not have the quality which triggers the grant of the remedies of compensation and reinstatement.
A harsh and oppressive dismissal is something which according to the Act, may be identified only by the Industrial Court.
It does not matter whether the party challenging the decision of the Industrial Court on this issue claims not merely that the decision was against the weight of the evidence, but it goes further and claims that no reasonable judge properly directed could have come to the same conclusion, having regard to the evidence. In the latter case the ground of appeal has graduated from a question of fact to a question of law, but it is nonetheless barred by the prohibition contained in section 10 (6). This is not to say that a decision of the Industrial Court as to whether a dismissal is harsh and oppressive is so sacrosanct that it can never be challenged on any ground whatever. If, for instance, there has been some procedural irregularity which involves a breach of the rules of natural justice, then clearly an appeal would lie to the Court of Appeal notwithstanding section 10 (6). In such a case it would be the process by which the Industrial Court reached its opinion and not the opinion itself, that was challenged.
It is unnecessary and indeed dangerous to try and enumerate all the circumstances in which an appeal would lie to the Court of Appeal against the decision of the Industrial Court in a trade dispute over the dismissal of a worker. The answer in broad terms is whenever the appellant can rely on any of the grounds mentioned in section 18 (2) without running foul of the prohibition contained in section 10 (6). What this means in practice will have to be determined on a case-by-case basis.”
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C.??????????????? Also from the Court of Appeal is a recent landmark judgment dealing with whether it was possible to challenge against the quantum of damages awarded by the Industrial Court. In this regard, please see the following excerpts 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:
(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.
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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(Page 10)
“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 retired from the $1,000,000.00 awarded to him.”
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(Pages 21 to 22)
“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.”
8.?What Exactly Are The Terms And Conditions That Fall Under The Jurisdiction Of The Industrial Court?
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A.?????????????? One of the best landmark judgments that I know about which provides a working definition of what are the terms of a contract of employment is E.S.D. T.D.S 7 & 11 OF 1987, delivered on June 20th 1991, in the Industrial Court between PUBLIC SERVICES ASSOCIATION and THE WATER AND SEWERAGE AUTHORITY and NATIONAL UNION OF GOVERNMENT AND FEDERATED WORKERS and THE WATER AND SEWERAGE AUTHORITY. The following quotations from this judgment will shed much needed light on the topic:
(Pages 11 to 12)
“It is a well-recognized tenet of employment law that the contract of employment can comprise express terms, implied terms, incorporated terms and imposed terms, that is terms imposed by law. Amongst implied terms are terms implied by custom, by conduct and by the Court to give business efficacy to the contract or a term thereof.”
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(Page 14)
“Additionally, it is important to note that this is a Court not only of equity but of good conscience, a tenet wider than equity. It is contrary to good conscience and indeed equity to allow the Authority to derive a benefit from its own wrong doing – unilateral variation of the contract of employment of workers contrary to the provisions of the Industrial Relations Act. The Union condoned the breaches apparent by its forbearance to sue and this forbearance is said to debar the Union from seeking redress in this Court. In condoning the breaches, the Authority submitted, the contracts were varied otherwise than by a collective agreement contrary to the provisions of the Industrial Relations Act. To uphold this would be to allow the statute to be used as an instrument of injustice and accordingly contrary to equity and good conscience.”
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B.??????????????? TRADE DISPUTE NO. 38 OF 2010, delivered on November 20th 2014, in the Industrial Court between OILFIELDS WORKERS’ TRADE UNION and PETROLEUM COMPANY OF TRINIDAD AND TOBAGO LIMITED also contains useful quotations which will help readers appreciate certain principles which deal with the terms and conditions of employment. The following quotations from this judgment will be instructive:
(Page 10 to 11)
“19.?? According to Selwyn’s Law of Employment 15th Ed. At pg. 79:
“It is submitted that the terms of the employment are bilateral, i.e. they are part of the agreement made between the employer and employee, whereas the conditions of employment are unilateral instructions which are laid down by the employer. The result is that a change in the terms can only be made by an express or implied agreement to that effect, whereas a condition can be changed by the employer unilaterally at any time (See Cadoux v Central Regional Council) on giving reasonable notice.”
????????? ????????? The author goes on to say at pg. 80:
“Terms of employment can be found in express or implied agreements, collective agreements, and various statutory provisions; conditions of employment are usually contained in works rules, disciplinary and grievance procedures and job descriptions. Care should be taken not to place a term or condition in the wrong category. For example, it may be a term of a contract that an employee shall be entitled to six weeks’ holiday per year; it will be a condition that he shall take those holidays at particular times of the year. A term will specify the number of hours he shall work; a condition will instruct him as to when he shall work those hours. A term will specify his employment duties; a condition will lay down how he shall perform those duties. The fact of payment is a term; the mode of payment is a condition.”
20.???? Chitty on contract, 9th Ed. And the authorities referred to principally at 2-176, 2-179, 12-095 and 12-098 indicate that
“Where a contract of employment expressly incorporates an instrument such as a collective agreement or staff handbook it does not necessarily follow that all the provisions in that instrument or document are apt to be terms of the contract. For example, some provisions, read in their context, may be declarations of an aspiration or policy falling short of a contractual undertaking “(see Christopher Keeley v Fosroc International Ltd [2006] EWCA Civ 1277).”
Applying Keeley’s case, we find and hold that the provisions relating to travelling allowances, especially where the worker was required to use his personal vehicle, were apt to be incorporated into his contract of employment as a term thereof. It was not a “declaration of aspiration or policy falling short of a contractual undertaking”.”
?????????
(Page 16)
“ANALYSIS
25.???? According to case law, statute and industrial common sense the contract of employment of the worker was found in both the letter of promotion and the Collective Agreement. Where the letter of promotion was silent, it was to the Collective Agreement that one looked to ascertain what were the terms and conditions of employment of the worker. Neither Petrotrin, the Union or both nor the Court had the power to vary the provisions in the Collective Agreement relating to travelling allowances (Article 10 [7] ) save for the limited purposes as provided for in s. 50. It follows therefore that the travelling allowances provisions of which the worker had the benefit could not have been altered except by another Collective Agreement or by private treaty with him since they were bilateral and terms of the agreement made by the parties on January 10th 2000. No evidence of any change in the Travelling Allowances provision of the Collective Agreement was presented to the Court, as it seems non-existent. Petrotrin was free to re-negotiate the terms and conditions of the worker’s continued employment and vary those upon agreement with him. That was never done. There is always a right to vary an agreement provided variation itself is subject to agreement between the contracting parties. But a contract of employment cannot be varied unilaterally without breach. (See Ford v Milthorn Toleman Ltd [1980] IRLR 30).”
?
C.??????????????? The pronouncements contained within TRADE DISPUTE NO. 170 OF 2001, delivered on July 12th 2006, in the Industrial Court between COMMUNICATION WORKERS’ UNION and PEAKE INDUSTRIES LIMITED, capture some of the best insights on how the Industrial Court evaluates the role of parties at the place of employment as it relates to the terms of employment. In this regard, please see the following two (2) excerpts which are instructive, to say the least:
(Pages 25 to 29)
“Reyes testified that on Paltoo’s instructions, he informed the workers concerning the change in their terms and conditions of service namely their work system. Albert Mitchell witnessed the event. Paltoo on the other hand, admitted that he gave the instructions but it was not meant to be mandatory.
?
Paltoo also testified “that he asked the workers to make an attempt on the 31st January, 2001 and if they could not do so and wanted to continue their walk, he could not stop them”. He never advised them in the alternative, they could continue on the normal wage rate system as before; it appears that he said that either they worked on the pay per piece system or walk away from the job. As a matter of fact, he did not discuss nor explain to the workers what the pay per piece system entailed. It is indeed contrary to the principles of good industrial relations practices to change such a fundamental term and condition of service of workers without adequate notice and explanation. This change not only affected their hours of work but their wages and it, therefore, necessitated responsible, enlightened, well-advised, reasonable and lucid discussions with the workers especially as there was no recognized majority union to look after their interest.
?
Moreover, my attention was drawn to the question of the attempted transfer of the workers as testified by Cape and confirmed by Traboulay and Clarke. In this regard I endorse the following statement in the judgment of Trade Dispute Nos. 103A to E of 1988 between Seamen and Waterfront Workers Trade Union and Furness and Watson Limited.
“While we are in no way bound by the rules of common law in the hearing and determination of trade disputes, we wholeheartedly agree with and adopt for present purposes the views expressed by Lord Atkin in the House of Lords in the case of Nokes and Doncaster Amalgamated Collieries Ltd., (1940) 2 All E.R. 549 at page 5558, when he said:
“My Lords, I confess it appears to me astonishing that, apart from overriding questions of public welfare, power should be given to a court or to anyone else to transfer a man without his knowledge, and possibly against his will, from the service of one person to the service of another. I had fancied that ingrained in the personal status of a citizen under our laws was the right to choose for himself whom he would serve, and that this right of choice constituted the main difference between a servant and a serf.”
In the absence of a right conferred on the employer by the collective agreement to transfer the workers to the service of another company, albeit an association company, the Company, in our judgment, was required to obtain the prior consent of the workers to such transfer. This is an accepted principle of good industrial relations practice.
Such consent not having been obtained, the transfers were in the event in breach of the workers’ terms of employment. Quite apart from this, however, we are of the opinion that the transferred employment does not constitute suitable alternative employment … In the case of non-consensual transfers the transferred employment must be comparable and suitable alternative employment. If the transferred employment does not meet this test of suitability and the employer insists on the transfer being effected, as in this case, then the workers concerned are entitled to redundancy benefits.”
To this end, I endorsed the description of the expected nature of the discussions, which are to take place between the parties, as found in the statement of the Canadian case of CJMS Radio Montreal Ltd. (1979) 1 Canadian LRBR 332.
“Now begins that difficult and complex process known as the negotiation of a collective agreement. It is difficult because it must bear the stamp of prudence, responsibility, lucidity and reason on both sides of the bargaining table.
As we have already said, bargaining in this area is the art of seeking what is possible on both sides. What is needed then is employees and employers who are responsible, enlightened, well-advised, reasonable and lucid who are supported and assisted by leaders and advisers who are in turn responsible, enlightened, well-advised, reasonable and lucid. AS REGARDS THESE LEADERS AND ADVISERS, THERE IS NO ROOM FOR RANK AMATEURS IN THIS FIELD.
Why are all these qualities essential? Because the errors committed during the process lead the parties slowly but surely toward the sanction that is applied in the event of failure; a work stoppage with all the accompanying hardship …
A strike or lockout may be lost. There may be one or more losers. Some would say that everyone loses from an economic standpoint and this is perhaps true. But there may be losers in the fullest sense of the word. That party that has miscalculated its capacity for economic resistance may jeopardize the existence of his business, and union members and unions may jeopardize their positions and their existence, respectively.”
Such discussions did not take place and was clearly a major shortcoming on the Employer’s part.
Furthermore, in the absence of a recognized majority union, the workers would have been at a disadvantage and in an invidious position. In the circumstances, the principles of good industrial relations practice demanded that they should be allowed to seek and obtain independent legal or other advice prior to the implementation or introduction of such changes in their terms and conditions of employment.
The testimonies of the Employer’s witnesses on this issue were neither as idem nor consistent nor supportive of each other in respect of the instructions given and the meetings held. The evidence of Gilbert Mitchell would have been important in this respect but he was not called upon to testify.
No evidence was led that it was customary during the period of employment with the Employer to ask workers to work under another system during their normal working hours.
There is no need to consider the evidence of Traboulay that Paltoo told him that it was not mandatory since those discussions occurred after the fact.”? ?
?
(Pages 31 to 33)
????????? ????????? “SALIENT AFTER THE FACT EVENTS
The testimony of Cape to the effect that on the following day, that is 1st February, 2001, when they reported for work, the Head of Security had a list of names of workers and prevented them from entering the compound and reporting for work. He had also asked them to return the Employer’s property and they refused. This testimony remained unchallenged.
These actions on the Employer’s part confirmed that they had been dismissed on the previous day.
OBSERVATION
On the basis of the evidence of Traboulay, the General Manager, it appeared as if there did not exist a grievance procedure, be it in writing or? otherwise, and in that regard, I wish to point out that-
The ILO Recommendation No. 130 on the Examination of Grievances provides inter alia that, as far as possible, grievances should be settled within the undertaking itself through effective procedures which are adapted to the conditions of the country, branch or economic activity and undertaking concerned and which gives the parties every assurance of objectivity (Article 8). The procedures recommended include direct settlement of disputes between workers and their supervisors and various steps in the procedure. It urged uncomplicated and rapid procedures with appropriate time limits. If efforts to settle the grievance within the undertaking are successful, then the following procedures should be used:
????????? ????????? The recommendation states inter alia that:
“11. ?? Grievance procedures should be so formulated and applied that there is a real possibility of achieving at each step provided for by the procedure a settlement of the case freely accepted by the worker and the employer.
12.???? Grievance procedures should be as uncomplicated and as rapid as possible, and appropriate time limits may be prescribed if necessary for this purpose’ formality in the application of these procedures should be kept to a minimum.”
Of equal significance is the statement of His Honour Mr. A.M. Khan, at a Trinidad and Tobago Chamber of Industry and Commerce Breakfast Seminar to the effect that:
????????? ????????? “Grievance Procedure
An employer should have a published grievance procedure so that workers, whether unionized or not, can have an appropriate vehicle for bringing their grievances and complaints to the notice of management. This procedure should be made known to all workers. An amicable relationship between management and workers is essential for the prevention and peaceful settlement of disputes, Human nature, being what it is, a dissatisfied worker will not give of his best effort to the organization. Such dissatisfaction can be aired through an appropriate grievance procedure.”
?????????
CONCLUSION
In the premises, I have concluded that the Employer had dismissed the workers in circumstances that were harsh and oppressive and contrary to good industrial relations practices.”
9. Unconscionable Terms In A Contract Of Employment That Reeks Of An Imbalance Of Power Are Rejected By The Industrial Court
A.?????????????? In TRADE DISPUTE NO. 41 OF 2001, delivered on April 9th 2003, in the Industrial Court between OILFIELDS WORKERS TRADE UNION and ELEGANT DRY CLEANERS LIMITED, the Industrial Court vividly identified what it deemed to be an unconscionable contract and it refused to enforce the terms which it felt took advantage of the aggrieved worker. In this regard, please see the following quotations which will corroborate my observations:
(Page 2)
“The Oilfields Workers’ Trade Union, (“the Union”) contends that the Company’s decision to dismiss the worker was harsh, oppressive and contrary to good industrial relations practice. The Union further contends that the worker was a permanent employee of the Company.
The Company on the other hand contends that the worker was engaged on a week-to-week contract basis as a presser for a contract fee of three hundred dollars ($300.00) a week.”
(Page 8)
“Even if we accept the Company’s contention that it verbally accepted the worker’s offer and a contract did in fact exist at the material time, we find after close examination of the document in question, that it was a contract that no sensible person not under delusion, duress, or in distress would make, and such as no honest and fair person would accept. We also find that the contract in question is excessively unreasonable, one-sided, unreasonably favourable to the Company and consequently unconscionable. In these circumstances, we hold that the purported contract is null, void and of no effect.”
?
B.??????????????? The issue of an unconscionable dismissal was recently handled in TRADE DISPUTES NOS. GSD-TD 678 OF 2017 AND 302 OF 2020, delivered on March 4th 2024, in the Industrial Court between COMMUNICATION WORKERS’ UNION (PARTY NO. 1) and SEAMEN AND WATERFRONT WORKERS’ TRADE UNION (1ST PARTY NO. 2) and PORT WORKERS AND PRIVATE SECTOR MANNING LIMITED (2ND PARTY NO. 2). The following quotations from this judgment will elucidate the Court’s approach to the concept:
(Pages 2 to 3)
?“Introduction
Marlene McCaulay (McCaulay) and Afesha Guy (Guy), collectively referred to in this judgment as the Workers, complained through the Communication Workers’ Union, (the Union or CWU) that they were dismissed by their joint employer (the Employer) – Seamen and Waterfront Workers’ Trade Union (SWWTU) and Port Workers and Private Sector Manning Ltd., (PWPSML) in circumstances that were harsh and oppressive. Accordingly, their dismissal was rendered unconscionable and unjust. To this end, the Union seeks an order for compensation. Compensation is also sought concerning the “… initial violation and disregard for the Maternity Protection”, Chapter 45 of 57 (the MPA), specifically section 7 (1) (b). This section refers to pay while on maternity leave called Maternity Allowance.
But what exactly does the highlighted words mean?
Here we find assistance from the Oxford Dictionary which defines the terms as:
Unjust not based on or behaving accordingly to what is morally right and fair
Harsh cruel or severe
Unconscionable not right or reasonable
Oppressive inflicting harsh and authoritarian treatment”
?
(Page 5 to 6)
“The nature and scope of these Disputes is limited only to the Workers’ dismissal.
For the avoidance of doubt, we place in the record that maternity allowance must be paid in the same way and at the same time as your salary or wage would be forwarded. Further, the fact that the Workers had to wait four (4) years to receive their entitlement is a clear violation of their right to enjoyment of property at the material time. The breach is unconscionable.
?
Discussion and Disposal
The Court accepts the evidence from the Workers as unassailable. The principles of good industrial relations practice have been variously described as requiring honesty, openness and the absence of ulterior purpose or motivation; consultation; investigation; hearing; period of notice and valid reason prior to dismissal. To be pellucid, a valid reason of notice must be a reason in existence at the time when the Worker is given notice and, the reason is such, as to justify dismissal. Reason originates in the good. Therefore, reason and the principles of good industrial relations practice (the good) are inseparable. Suffice to state that the joint employer breached all these principles in terminating the service of the Workers.
When viewed in the round therefore, the Workers had been dismissed in circumstances that were harsh and oppressive, and, inconsistent with the principles of good industrial relations practice. The dismissals were therefore rendered unconscionable and unjust.
Moreover, a toxic work environment had been created by the joint employer – years before the Workers’ dismissal in 2017, which justified (then) an arguable case of constructive dismissal.
The Union’s case is upheld.”
10. A Company Cannot Instruct A Worker To Break The Law Of The Country Because That Is A Potential Constructive Dismissal
?
A.?????????????? WORKING DEFINITION OF A CONSTRUCTIVE DISMISSAL - The often-quoted ruling of the Industrial Court of Trinidad and Tobago contained withinin TRADE DISPUTE NO. 197 OF 2002, delivered on November 22nd 2005, in the Industrial Court between OILFIELDS WORKERS’ TRADE UNION and SCHLUMBERGER (TRINIDAD) INCORPORATED will definitely embellish all readers’ assimilation of the ideas related to this popular concept. In Trade Dispute No. 197 of 2002, the Court sought to provide useful guidance on the concept of constructive dismissal to the Labour Jurisdiction of Trinidad and Tobago, starting from page 25, which is re-captured here for ease of reference:
?
(page 25)
“…. There seems to be considerable misunderstanding of the concept of constructive dismissal, and not only in this dispute. We therefore use this opportunity to offer some guidance.
Constructive dismissal occurs in circumstances where the behavior of the employer is so unreasonable or intolerable that it amounts to a fundamental breach of the employment contract. The essence of constructive dismissal is captured by Lord Denning in Western Excavating (ECC) Ltd v Sharp (1978) Q 13 / 761:
“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 and 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 significantly serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains; for if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.””?
?
(page 26)
“…. The foregoing should not be interpreted to mean that constructive dismissal only embraces a single breach going to the root of the contract. There may be a series of breaches over time culminating in the final straw at which point the employee leaves and may be considered to have been constructively dismissed.”
?
(pages 26 to 27)
“…. One word of caution, though, not every breach is a fundamental breach; the breach must go to the root of the contract. De minimis non curat lex – the law is not concerned with trivial things. Moreover, there must be a direct causal relationship between the decision to leave and the repudiatory breach by the employer.”
?
B.??????????????? INSTRUCTIONS FROM A COMPANY TO AN EMPLOYEE TO CONDUCT AN ILLEGAL ACT MAY QUALIFY AS AN INGREDIENT FOR A CONSTRUCTIVE DISMISSAL – One of the earliest cases in Trinidad and Tobago dealing with the concept of a constructive dismissal can be seen in TRADE DISPUTE NO. 121 OF 1985, delivered on February 9th 1989, in the Industrial Court between ALL TRINIDAD SUGAR AND GENERAL WORKERS’ TRADE UNION and CARONI (1975) LIMITED, in which the Court ruled that it was a constructive dismissal to instruct certain drivers to drive a certain type of vehicle although they did not possess the licence. The following quotations will be quite useful for anyone faced with similar circumstances today:
(Page 2)
“The trade dispute arose when the Company re-assigned Sookbir Rampersadsingh, Kissoon Koolanchan, Bittan Mungal, Kenneth Doman, Ramdhan Kamal, and Sagar Harrichand (hereinafter collectively referred to as “the workers”) from the driving of sugar trucks (“the sugar trucks”) to the driving of articulated vehicles used in the haulage of sugar canes (“the articulated units”) at the beginning of the 1985 sugar crop.
?
The workers were originally employed as drivers of sugar trucks. The sugar trucks were single unit vehicles which weighed between 7 and 10 tons. The articulated unit consisted of a motorized cab with a trailer attached to it and normally and normally carried a load of 10 tons.
The workers were seasonal workers who were employed by the Company only during the crop season for six months in each year.
?
The workers alleged that they were dismissed by the Company at the beginning of the crop season in 1985, when they reported for work as drivers of the Company’s sugar trucks and the Company instructed them to drive the articulated units instead. They alleged further that this action of the Company was illegal and a breach of the registered collective agreement between the Union and the Company. In the event, they refused to obey the Company’s instruction to drive the articulated units. The workers claim that in the circumstances they are entitled to severance benefits from the Company in accordance with the provisions in that behalf contained in the registered collective agreement.”
?
(Pages 8 to 9) ????
“We are appalled that the Company treated the workers and their complaint in so cavalier a fashion. Good industrial relations practice require the expeditious settlement of workers’ grievances. In this case, however, the workers received no reply to their just complaint. They waited and waited, they reminded Mr. Alleyne, but still the Company failed and / or refused to reply to them.
On these facts we are of the opinion that the Company unreasonably required the workers to drive vehicles they had no prior experience in driving without giving them an opportunity to be trained to drive such vehicles and that the workers justifiably refused to drive the said vehicles. We reject the Company’s submission that the workers that the workers should have requested training to drive the articulated units. It was the responsibility of the Company to respond to the workers’ oral complaints, which were reduced to writing at the specific request of the Company’s Senior Supervisor, Mr. Dave Alleyne. The workers had protested to Mr. Alleyne on two specific grounds:
(a)? That they did not possess the necessary licence to drive the articulated units; and
?
(b) That they had never driven the articulated units and, therefore, did not possess the necessary skills or experience in driving such vehicles.
?
In these circumstances, it was, in our judgment, incumbent on the Company, to offer the workers an opportunity to acquire the necessary skill and experience to drive the articulated units. This the Company failed to do and / or to attend to the workers’ complaint in violation of the principles and practices of good industrial relations.
?
In the circumstances, we are of the opinion, and so hold, that the Company, by its persistent silence and failure to take any action whatsoever on the workers’ complaints and by insisting that the workers drive the articulated units constructively dismissed the workers from its employment and that such dismissals were harsh and oppressive and not in accordance with the principles of good industrial relations practice.”
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C.??????????????? THREE (3) MAIN ELEMENTS WHICH HAVE TO BE SATISFIED BEFORE A SUCCESSFUL CLAIM OF CONSTRUCTIVE DISMISSAL CAN BE MADE - Equality of treatment before the law has also placed a burden on all aggrieved workers to satisfy three (3) main elements before they could make a successful claim of constructive dismissal and the following excerpt from TRADE DISPUTE NO. 253 OF 2015, delivered on October 20th, 2020, in the Industrial Court between BANKING INSURANCE AND GENERAL WORKERS UNION and ANSA McAL LIMITED is very instructive in this regard:
(Pages 11 to 12)
“… There is a plethora of judgments that have been determined by the Court on the issue of constructive dismissal and as has been correctly stated by the Company in its closing submissions. Over the years this Court has developed its own distinct jurisprudence applicable to local conditions and circumstances so that in addition to the basic principles of Western Excavating the Court has emphasized three main elements:
(i)?????????????? The immediacy of the resignation;
(ii)???????????? The contents of the resignation letter;
(iii)????????? The requirement that the employer must be afforded the opportunity to remedy any breaches (if they exist) prior to resignation.”
These three elements are inextricably connected.
In the instant matter the worker has failed to satisfy these three critical elements by giving contractual notice of resignation and working out the notice period. The letter of resignation says nothing about his reason for resigning and as such the Company is not given an opportunity to remedy any breaches (if they exist).
The Union has not exposed for the Court’s consideration what it considered to be the fundamental breach that went to the root of the Worker’s employment contract. The Union has therefore failed to establish its case of constructive dismissal.
DECISION
On the basis of the totality of the evidence before us and in all the circumstances we order that the Union’s case is without merit and is hereby dismissed.”
11. The Industrial Court Is More Than A Court Of Law Because It Is A Court Of Common Sense, Which Should Not Be Adulterated By Legal Technicalities From Lawyers Or Violations Of Natural Justice By Incompetent Policy Makers
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A.????? Readers of one of my earlier articles would recall that I do subscribe to the view that the lawyers integral to the evolution of the Labour Jurisdiction of Trinidad and Tobago as they make their contribution on points of law. However, all readers must accept that the part of the Labour Jurisdiction of Trinidad and Tobago which deals with industrial relations is not open to changes being suggested by any point of law.? For example, within CIVIL APPEAL NO. 30 OF 1972, delivered on February 27th 1975, in the Court of Appeal of Trinidad and Tobago, between CARIBBEAN PRINTERS LTD. and UNION OF COMMERCIAL AND INDUSTRIAL WORKERS, the Court of Appeal explicitly declared from very early within the existence of the Labour Jurisdiction of Trinidad and Tobago that lawyers, including itself, are less equipped to deal with industrial relations matters because such matters are not law as can be revealed within the following quotation:
?
(Page 8)
“As to “equity” and “good conscience” I do not think from the tenor of the Act as a whole that those terms could be understood to mean that the court in administering the Act is limited to the proof of equitable doctrines as administered in the civil courts. In my view, to act in accordance with equity and good conscience within the meaning of s. 13 (2) is to act in accordance with what the court considers right, fair, and just as between man and man. The Court is also under an obligation to pay due regard to the principles and practices of good industrial relations which have been aptly described as those informal, uncodified understandings which are ancient habits of dealing adopted by unions and acquiesced in or agreed to by employers, but this Court comprised as it is wholly of lawyers is in no position to dispute, but ought to accept, the conclusions of a tribunal composed of persons who are more knowledgeable and experienced in industrial relations. The principles and practices of good industrial relations are clearly not law. They are useful and convenient practices which have been for a long time observed and understood to govern the relationship of employer and employee in the diverse and varying conditions of persons in the field of industry. It is such persons who have conceived these practices and principles for their own use and consequently they ought to know exactly what those principles and practices are. Perhaps it is for this reason more than for any other that the composition of the Industrial Court is as it is.
?
By s.6 of the Act the Industrial Court shall consist of a President and Vice-President who are lawyers, and other members qualified respectively as an accountant, an economist and a person experienced in industrial relations. The court usually sits with at least one member who is well experienced in and has considerable knowledge of the principles and practices of good industrial relations. In my opinion SUCH A COURT IS FAR BETTER EQUIPPED THAN THIS COURT, COMPRISED AS IT IS SOLELY OF LAWYERS, to determine in any given set of circumstances whether the principles and practices of good industrial relations have been observed or not. For that reason, if for no other, I would hesitate to interfere with the conclusions of the Industrial Court on such a matter.”
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B.????? As long ago as January 28th 1990, in TRADE DISPUTE NO. 1 OF 1989, in the Industrial Court between THE ASSOCIATION OF TECHNICAL, ADMINISTRATIVE AND SUPERVISORY STAFF and CARONI (1975) LIMITED, the Court ruled that natural justice had been denied to a worker because the disciplinary proceedings failed to separate the accuser from investigator and the final decision maker. The following quotation from this judgment will be instructive:
?
(Page 8)
“The worker alleged that his Union representatives had objected to the presence of Wotherspoon on the tribunal but that their objection had been overruled by Wotherspoon. Wotherspoon denied that the Union had so objected. In the absence of any other evidence on this matter, we make no finding of fact on this question but we find and hold that whether or not an objection had been raised by the Union to Wotherspoon’s membership on 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 Wothrspoon (sic) 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 Wothrspoon (sic) appointing himself as its Chairman. This again we specifically hold to be offensive to the principles of good industrial relations practice.” (Emphasis by me – DPM)
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C.?????????????? Thirty-two (32) years later from the delivery of the above-mentioned Court of Appeal ruling, the Industrial Court was unequivocal in its ruling that an employer should have obtained industrial relations advice instead of legal advice in how that employer processed a manager whose contract of employment was terminated by the said employer. This ruling emanated from TRADE DISPUTE NO. 241 OF 2004, delivered on May 2nd 2007, in the Industrial Court between OILFIELDS WORKERS’ TRADE UNION and TRINIDAD CEMENT EMPLOYEES CREDIT UNION CO-OPERATIVE SOCIETY LIMITED, in which the following quotations will arguably convey the view of the Industrial Court that industrial relations advice should be left to the industrial relations advisers:
?
(Pages 2 to 3)
“… The Oilfields Workers’ Trade Union (hereinafter called “the Union”) by letter dated 10th July 2003 reported to the Minister the existence of a trade dispute between the Union and the Society over “the Dismissal on April 08, 2003 of Dianne Joseph, Manager”. Subsequently, the dispute was referred to the Court for adjudication. On the 9th day of August 2004 the Registration, Recognition and Certification Board determined that the Manager was a worker within the meaning of the Industrial Relations Act. Both parties have filed statements of its Evidence and Arguments and have called witnesses to testify on its behalf.
?
The Society was established for the promotion of thrift and savings amongst the employees and their relatives of T.C.L. who shared a common bond. In pursuit of its aims and objectives, one of its primary functions is the granting of loans with or without security to its members for a variety of purposes. The Society is governed by the Co-operative Societies Act. Ch. 81:03 of the laws of Trinidad and Tobago. As required by law, there are established a Board of Directors of the Society and several committees, two of which, for the purposes of this judgment, are the Supervisory Committee and the Credit Committee. The composition and functions of the Board and Committees, as in any Co-operative Society, were comprehensively set out by His Honour Mr. A. Khan, President in Trade Dispute No. 2 of 2001 between BIGWU and Hindu Credit Union Co-operative Society Limited. There is therefore, in my opinion, no need to restate those matters and things but wish to merely state that I adopt them in so far as they are applicable to the issues in this dispute.
?
The Manager’s duties included the overall management of the Society’s office and its staff. One of her most important duties was the preparation of reports as required by law or the Board and or Committees. One such report was a delinquency report, that is, a report of the status of members’ accounts which are in arrears.
?
A former board member and former President of the Society, who for the purposes of anonymity I shall refer to only as “Member 4282”, was indebted to the Society in substantial sums and his accounts were in arrears. This situation was already in existence at the time of the Manager’s engagement by the Society in January 2000 and was documented in the Board minutes of the Society.”
?
(Pages 5 to 6)
“… In the letter of dismissal, the Society did not give any reason for the Manager’s dismissal. There is not a scintilla of evidence to show that the Manager had failed to bring to the attention of the Board and or any committee the status of Member 4282’s accounts. The Board and the Credit Committee well knew that the Member’s several accounts were in arrears. The minutes of the meetings of the Board bear this out. In any event, even if the Manager had failed to notify anyone of the nature and extent of Member 4282’s delinquency, the Society’s Committee and its Auditors should have picked up that information in the normal course of the performance of their respective functions. They ought to have known. It was within their powers to find out. The Court is not making a finding that they failed and or neglected to do so. The Court finds that they very well knew of the status of the accounts of Member 4282. The evidence of the Senior External Auditor was, like the present day weather pattern, subject to several vagaries and in my opinion was not at all convincing. It did not help the Society’s case. Neither did the evidence of Heerah who was the Society’s Treasurer at the time. Heerah was unable to give definitive answers to questions posed and at times, could not remember events related to the issues in this dispute.
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According to the evidence, while Member 4282 held the position of President of the Society, several accommodations / privileges were granted to him. In my opinion, this was in breach of all known co-operative, financial and accounting principles and regulations and also Section 43 (3) of the Co-operative Societies Act and Regulation 42 of the Co-operative Societies Regulations. These accommodations / privileges were not granted to Member 4282 by the Manager but by the Board and or the Credit Committee. The Society, in its Evidence and Arguments and during the course of the hearing of the Trade Dispute alluded to the fact that despite Member 4282’s delinquency status, the Manager granted loans to him. The Manager was not authorized to grant loans save and except for the Line of Credit facility. That was the function of the Credit Committee and if that Committee could not or did not want to grant a loan then the obligation to do so fell on the Board.”
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(Pages 7 to 8)
“… The evidence before the Court does not support any dereliction of duty on the part of the Manager. On the contrary, the manner and clarity of the Manager’s evidence shows she was efficient and proactive. The Manager produced documentary evidence to show that she was virtually pleading with the Board to establish policies and procedures to ensure the smooth and effective running of the affairs of the Society. There are no adverse reports against the Manager by the “watchdog” of the Society – the Supervisory Committee. There is no evidence of any disciplinary action being taken against the Manager for performance of her duties nor is there any evidence that she failed to discharge her duties and responsibilities in a way so as to place the assets of the Society in jeopardy. If anyone is guilty of any such jeopardy it is the Board of Directors and its Committees. By law, the Supervisory Committee is required to make an examination of the affairs of the Society including an audit of the books. It can remove and suspend any officer, member of the committee or even the Board of Directors. The Supervisory Committee and the Auditors had unlimited access to the transactions, documents, books, records and accounts of the Society. There is no evidence before the Court that the particulars of the accounts of Member 4282 were kept in the Manager’s head and she alone had access to it.
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I therefore find as a fact that the Society acting by its Board of Directors, Committees and Auditors fully knew of the status of Member 4282’s accounts and the extent of his indebtedness. If, as they allege, they did not know, then, I find that any prudent, diligent and reasonable Board or Committee ought to ???have known of the existence of such facts. In my opinion therefore, the Society was not justified in its dismissal of the Manager, moreso in the manner that it did.
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Assuming though, but not admitting, that the dismissal of the Manager was justified, the question still arises whether it was carried out in circumstances which were harsh and oppressive and not in accordance with the principles of good industrial relations practice. See Section 10 (5) of the Act.”
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(Page 8 to 9)
“… In the opinion of the Court the decision of the Society to terminate the services of the Manager was in breach of the rules of natural justice and contrary to all principles and practices of good industrial relations.
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Garibsingh in his capacity as President, INSTEAD OF SEEKING LEGAL ADVICE SHOULD HAVE SOUGHT INDUSTRIAL RELATIONS ADVICE. I am sure if he had done so, the Society would have proceeded differently. It is not the function of the Court to give advice to litigants but to guide them along the winding and ever changing lanes of proper industrial relations practice.”
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(Page 10)
“… The Society failed to proffer any charges against the Manager and afford her the opportunity to answer them and to make, if necessary, any plea in mitigation. She was dismissed in a summary manner and escorted off the premises like a common criminal. She requested reasons for her dismissal from Garibsingh, but all she got was silence. And, to add insult to injury, the Society attempted to obstruct and prevent the Manager from obtaining alternative employment after her dismissal. The Society’s letter of July 13, 2004 to the President of the Credit Union League is instructive in this regard. To this end, the evidence of Mr. Baxter is crucial. I accept his evidence as uncontroverted.
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I therefore find and so hold that the dismissal of the Manager was in circumstances which were harsh and oppressive and contrary to the principles of good industrial relations. See the recent judgments of this Court in T.D. No. 141 of 2001 Between BIGWU and Mecalfab Ltd. and OWTU and T.D. Nos. 222 and 223 of 2004 between OWTU and Courts (Trinidad) Ltd. on the right of a worker to be informed of the reasons for his dismissal and to be afforded an opportunity to answer the charges and make a plea in mitigation, if necessary.”
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D.??????????????? Thirty-nine (39) years later after the above-mentioned Court Of Appeal judgment was delivered in February 1975, the Industrial Court repeated its warning over the danger facing companies which choose to use lawyers for industrial relations advice as is exemplified within TD 717 OF 2013 AND IRO 23 OF 2013 (CONSOLIDATED), delivered on November 19th 2014, in the Industrial Court, between TRINIDAD AND TOBAGO NATIONAL PETROLEUM MARKETING COMPANY LIMITED and OILFIELD WORKERS’ TRADE UNION. The following quotation will be insightful on the position of the Industrial Court on whether lawyers are indeed suited to give advice under industrial relations practice:
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(Pages 19 to 20)
“51.?? There is a plethora of judgments in this Court which states that when an employer is considering disciplinary action against workers, the procedure which is adopted by the employer must be fair, and that to do otherwise will be contrary to the principles of good industrial relations. We agree, generally speaking, where there is no notice of strike action; the Court treats strike action as a breach of contract. Phillips J in W Simmons v Hoover Limited, posits that there is: … “a settled, confirmed and continued intention on the part of the employee not to do any of the work which under his contract he has been engaged to do, which was the whole purpose of the contract. Judged by the usual standards such conduct by the employee appears to us to be repudiatory of contract of employment.” Repudiation entitles the other party to the contract to accept the contract as at an end, should he so wish. The Employment Appeal Tribunal stated that, “we should not be taken to be saying that all strikes are necessarily repudiatory although usually they will be”. The example of what may not be repudiatory conduct was where the strike was “in opposition to demands by an employer in breach of contract”, in which case employees might be merely accepting the employer’s repudiation. In the instant case the Company had requested of the two workers (Ramlochan and Kissoon) to perform duties which the workers claimed were not within their job functions. The Collective Agreement between the parties, which is registered at the Court, provides for workers to be furnished with copies of their job description. A perusal of the job description by management would have clarified the issue of whether training was among the duties of the two workers. Ms. Dinnoo-Benjamin admitted that she did not check the job description of the two workers to see if training of management was included in their job function. Instead she insisted that they accept her unilateral interpretation of their duties and job function and she punished the workers for their refusal to adhere to her instructions.
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52.???? One of the authorities Mr. Jairam SC relied upon is Heathons Transport (St Helens) Limited v Transport General Workers’ Union and others. In this case the Court noted at page 23 that “The National Industrial Relations Court is a court, but a court with a difference. All courts exist to uphold the rule of law. So does this court. All courts are concerned with people. So is this Court … Why, then, is this court different? It is different in its composition, in its objects and in its procedures. It is a court of law, but not a court of lawyers … The Industrial Court is more than a court of law. It is a court of industrial common sense. The Court’s procedure is different. It is designed to be quick, informal and suited to the needs of those who are not lawyers.”
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53.???? This is indeed the case with the Industrial Court of Trinidad and Tobago, industrial common sense causes us to examine the extent to which management’s own action or omission call into question the reasonableness of the decision to suspend the workers and then to dismiss them. Industrial common sense also causes us to question the actions of Ms. Dinnoo-Benjamin on the 13th and 14th August, 2013 and the veracity of her viva voce evidence. A reasonable employer in our view will attempt to ascertain what was communicated to the workforce about the two workers, Ramlochan and Kissoon, and attempt to correct any perceived miscommunication and inaccuracies, particularly when the alleged miscommunication appeared to have been the catalyst to broader actions which were taken by workers. Ms. Dinnoo-Benjamin told the Court that she made no attempt to clarify and to explain to the other workers (the workforce) that she had not dismissed the two workers in question.”
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E.??????????????? In TRADE DISPUTE NO. 379 OF 2013, delivered on April 13th 2017, in the Industrial Court between STEEL WORKERS UNION OF TRINIDAD AND TOBAGO and SOCIETY FOR FAMILY HEALTH, the Court again emphasized the mandatory necessity to separate the accuser from the panel that conducts the inquiry and also from the person who signs the letter of dismissal. In this regard, the following quotation from this judgment will be instructive:
(Pages 16 to 17)
“… We took special note of the fact that Ms. J. Roberts, the worker’s supervisor, signed all these letters, meaning that she would not have played a superficial role, but rather would have participated in a more indepth, critical and decision making manner throughout the disciplinary process.
Having regard to this action taken by and the role played by Ms. J. Roberts in the allegations against the worker, it is clear that she should have been a witness in the disciplinary hearing instead of being a member of the tribunal investigating the allegations. Her role relative to the allegations would have been important in proving the guilt of the worker. It has to be explained that she was the worker’s supervisor and that her approval was necessary as far as the worker’s actions were concerned. On the basis of the submission of the parties, at no time, did the worker act on his own, he always acted with the knowledge and approval of Ms. Roberts.
The evidence shows that it was Ms. J. Roberts who accused the worker of wrongdoings and so, it was incumbent on her to present evidence as a witness in support of her accusations at the disciplinary hearing and to allow the worker to rebut her evidence but this was not to be as she was a member of the tribunal conducting the disciplinary hearing into the matter. To appoint her as a member of the tribunal was clearly disadvantageous and prejudicial to the worker.
It would have been unfair and unjust for Ms. Roberts to present evidence at the hearing of the Court into the dispute. Consequently, we did not allow her to give evidence. She was the only person who could give evidence on behalf of the Employer and not being able to do so, in the circumstances, the Employer would clearly be unable to prove its case, if any, and as such, we ruled as we did.
Those procedural irregularities would have affected the evidence tendered by the Employer in unimaginable proportions and in such a manner that the continuation of the hearing in this dispute would not have assisted the Court in its deliberation and would have been irreversibly unhelpful. Those was (sic) the grounds under which the Court ruled against the tendering of the evidence of Ms. J. Roberts and ruled in favour of the worker.”
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F.?????????????? In TRADE DISPUTE NOS. 292, 293 AND 294 OF 2011, delivered on June 17th 2020, in the Industrial Court between STEEL WORKERS UNION OF TRINIDAD AND TOBAGO and CENTRAL TRINIDAD STEEL LIMITED, the Court again reiterates the need to separate the accuser, the panel for the inquiry and the signatory of the letter of dismissal. The following quotation from this judgment will be instructive:
(Pages 11 to 12)
“We are appalled by the Company’s conduct in this matter where a total disregard for good industrial relations practice was displayed. The Company had its Human Resource Officer conduct the investigation, he then represented the Company at the disciplinary hearing and proceeded to dismiss the worker. This Court has delivered a plethora of judgments over the years emphasizing the critical importance of adhering to the rules of natural justice when contemplating disciplinary action.”
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G.??????????????? Forty-six (46) years after the above mentioned Court Of Appeal judgment, we see in TRADE DISPUTE NO. 460 OF 2015, delivered on February 25th 2021, in the Industrial Court between OILFIELDS WORKERS’ TRADE UNION and CARIBBEAN PACKAGING INDUSTRIES LIMITED, another attempt by the Court to point out to a company and, by extension, the Country how essential it is to have an “Industrial Consultant” to ensure that your company has proper policies and procedures and applicable systems. The following quotation from this judgment is a reverberation of the perennial message that the Industrial Court and the Court of Appeal has been sending for so many decades to Companies with respect to the critical role played by an Industrial Relations Consultant at the place of employment:
(Page 36)
“Finding of the Court
The actions of this Company in the dismissal of the Worker was harsh and oppressive and not in keeping with the principles of good industrial relations practice and it is recommended given the very slap dash Policies and Procedures seemingly in existence within this Company that an Industrial Consultant be employed for the purpose of effecting applicable systems.
The Union asked that the Worker be reinstated without loss of status. Given the facts of this case, the length of service of the Worker, and the very strained relationship between the Worker and the Company we are of the view that reinstatement at this stage is not practical. In lieu of reinstatement an award of damages shall be given.
As a result of miscommunication or communication at all, here is a Worker who was deprived of his employment which was permanent; deprived of a chance to be heard without charge and denied the opportunity to know the cause of his termination. It is only when he came to the Industrial Court was he able to face his accuser and to know why he was separated from it.”
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H.???????????????? Forty-nine (49) years after the above-mentioned Court Of Appeal judgment, in TRADE DISPUTE NO. GSD-TD 128 OF 2019, delivered on February 27th 2024, in the Industrial Court between GOVERNMENT INDUSTRIAL AND GENERAL WORKERS UNION and ACM SYSTEMS c/o SANTAINERS LIMITED, the Court was called upon to give a ruling on a preliminary point which saw it repeat the long-held view that the Industrial Court is a court of common sense which is concerned with substance and not the form of legal technicalities. The following quotation will be self-explanatory in this regard:
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(Pages 8 to 10)?
“ANALYSIS AND RULING
The Court in assessing the merits of the Employer’s preliminary objections, is guided by judicial pronouncements in the following cases :-
Trade Dispute No. 12 of 1992 between the Public Services Association and Trinidad and Tobago Blind Welfare Association, wherein the then President of the Court, His Honour Mr. L. Ramchand, said, inter alia, that:-
“It is the practice of labour courts, throughout the world, to bend over backwards to allow trade disputes to be aired. Although the dispute is between trade union and employer it must be remembered that the dispute concerns a worker who may not be aware of the technicalities of the law and the procedures of a court…it is highly irregular for a dispute to be dismissed ipso facto or because of some technicality or defect in procedure.”
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In Civil Appeal No. 30 of 1972 – Caribbean Printers Ltd v. UCIW delivered on February 27, 1975, Rees J.A. cited as the correct approach to be followed in the interpretation of the Industrial Relations Act, the House of Lords position in Post Office v. Union of Post Office Workers and Anor. (1974) 1 All E.R. 229 on the interpretation of the Industrial Relations Act, 1971, England, that :-
“…the Act must be construed in a broad and reasonable way so that legal technicalities must not prevail against industrial realities and common sense. An unreasonable employer who tried to insist on his strict legal rights will get no comfort from the Act.”
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In Trade Dispute No. 138 of 2001 between National Union of Government and Federated Workers and Caribbean Bottlers (Trinidad and Tobago) Limited, the Court stated :-
“We wish to stress again that this Court is not impeded from doing justice by lack of form or legal technicalities. We look at the substance of the cases before us and overlook lack of form and legal technicalities where it is in the interest of justice to do so.”
The Court is also mindful of its inherent jurisdiction as a superior Court and its mandate under Section 10 (3) of the Act, which states :-
“Notwithstanding anything in this Act or in any other rule of law to the contrary, the Court in the exercise of its powers shall—
(a) make such order or award in relation to a dispute before it as it considers fair and just, having regard to the interests of the persons immediately concerned and the community as a whole;
(b) 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.”
The Court is also empowered to join Parties to proceedings under its consideration by Section 11 (b) of the Act which states:-
“11. In addition to the powers conferred on it under the foregoing provisions of this Part, the Court may—
(a) …
(b) order any person—
(i) who in the opinion of the Court may be affected by an order or award; or
(ii) who in any other case the Court considers it just to be joined as a party, to be joined as a party to the proceedings under consideration on such terms and conditions as may be prescribed by rules made by the Court;”
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As stated by Sir John Donaldson, the Industrial Court is more than a court of law, it is a court of industrial common sense. The Court having adopted a common sense approach that was both fair and practical and in keeping with the Court’s mandate as a Court of Industrial Relations considered all of the submissions of the Parties, the documents and the procedural history and facts of the matter.” (Emphasis by me – DPM)
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2 周Very helpful!
Business and Operations Excellence Champion Contracts Manager / Internal Auditor at Gulf Engineering Services Limited
2 周Thank you Sir for sharing this very insightful and important document.