Raphael John-Lall

Pres­i­dent of the In­dus­tri­al Court Heather Seale is ad­vis­ing the coun­try’s em­ploy­ers and busi­ness lead­ers to un­der­stand the In­dus­tri­al Court’s pow­ers and pro­ce­dures so they can suc­cess­ful­ly nav­i­gate their mat­ters there.

“It is my view, that the best ap­proach for em­ploy­ers to take, in suc­cess­ful­ly steer­ing their mat­ters through the In­dus­tri­al Court is to be­come well ac­quaint­ed with the Court’s ju­ris­dic­tion and its pow­ers as set out pri­mar­i­ly in the In­dus­tri­al Re­la­tions Act, Chap­ter 88:01 (‘the IRA/the Act’) and oth­er rel­e­vant statutes. The Court’s ju­ris­dic­tion and its pow­ers have al­so been ad­dressed over time in pa­pers, ar­ti­cles and judg­ments of the Court, as well as by the Court of Ap­peal and the Privy Coun­cil,” she said.

Seale spoke at a pan­el dis­cus­sion host­ed by the T&T Cham­ber of In­dus­try and Com­merce, West­moor­ings on the top­ic of “Nav­i­gat­ing the In­dus­tri­al Court: Key con­sid­er­a­tions and best­prac­tices for em­ploy­ers” on Feb­ru­ary 21.

She spoke about prin­ci­ples of good in­dus­tri­al re­la­tions in the em­ploy­er and em­ploy­ee re­la­tion­ship in the world of busi­ness and said a key con­sid­er­a­tion for em­ploy­ers would be to pay close at­ten­tion to the pro­vi­sions of sec­tion 10 of the IRA and in par­tic­u­lar the court’s man­date at 10 (3) (b) to act in ac­cor­dance with eq­ui­ty and good con­science and to have re­gard to the prin­ci­ples and prac­tices of good in­dus­tri­al re­la­tions,

“I would ex­pect this to be a key con­sid­er­a­tion of em­ploy­ers in their work­places. This is im­por­tant be­cause, what the Court does in the ma­jor­i­ty of trade dis­putes, es­pe­cial­ly those which con­cern dis­missals, is to re­view the con­duct of the par­ties which led to the par­tic­u­lar is­sue. To seek, af­ter the fact, to con­vince the Court that one ad­hered to the prin­ci­ples and prac­tices of good in­dus­tri­al re­la­tions, may be fu­tile, if in fact one’s con­duct in the lead up to the event says oth­er­wise. I would sug­gest that ad­her­ence to the prin­ci­ples and prac­tices of good in­dus­tri­al re­la­tions should be stan­dard op­er­at­ing prac­tice and pro­ce­dure for em­ploy­ers and not a strat­e­gy adopt­ed at the doors of court.”

She al­so said the ma­jor tenets of good in­dus­tri­al re­la­tions prac­tice have been well doc­u­ment­ed in de­ci­sions of the In­dus­tri­al Court over the 60 years of its ex­is­tence, as well as in those of oth­er labour tri­bunals and courts and the In­ter­na­tion­al Labour Or­ga­ni­za­tion (ILO) con­ven­tions and rec­om­men­da­tions.

She men­tioned that among the lead­ing cas­es on the prin­ci­ples and prac­tices of good in­dus­tri­al re­la­tions are Trade Dis­pute No. 140 of 1997, Bank and Gen­er­al Work­ers’ Union v. Home Mort­gage Bank de­liv­ered on March 3, 1998 and Trade Dis­pute No. 2 of 2001, Bank­ing In­sur­ance and Gen­er­al Work­ers’ Union v. Hin­du Cred­it Union Co-op­er­a­tive So­ci­ety.

She not­ed that the key prin­ci­ples and prac­tices of good in­dus­tri­al re­la­tions are that:

* The em­ploy­er should prop­er­ly in­ves­ti­gate any al­le­ga­tion or al­le­ga­tions of mis­con­duct made against a work­er;

* Ex­cept in ex­cep­tion­al cir­cum­stances, a work­er should be giv­en an op­por­tu­ni­ty to be heard be­fore be­ing dis­missed from an em­ploy­er’s ser­vice;

* The essence of a fair op­por­tu­ni­ty to be heard in­volves the pro­vi­sion of rel­e­vant in­for­ma­tion by the em­ploy­er to the em­ploy­ee to en­able the lat­ter to un­der­stand the sub­stance of the al­le­ga­tions made against him and an op­por­tu­ni­ty to re­ply to such al­le­ga­tions, in­clud­ing putting for­ward any rea­sons in mit­i­ga­tion of a penal­ty;

* The op­por­tu­ni­ty is to be giv­en be­fore the de­ci­sion to dis­miss is made.

She al­so gave em­ploy­ers ex­am­ples of com­mon mis­takes em­ploy­ers make in the work­place in re­la­tion to good in­dus­tri­al re­la­tions prac­tices.

“From dis­putes com­ing be­fore the Court, there are a num­ber of com­mon fail­ings on the part of some em­ploy­ers in ad­her­ing to the prin­ci­ples and prac­tices of good in­dus­tri­al re­la­tions. Breach­es oc­cur quite fre­quent­ly in the con­duct of dis­ci­pli­nary meet­ings and in­quiries:

* An em­ploy­ee is called with­out no­tice of the fact that the meet­ing is in re­la­tion to a dis­ci­pli­nary mat­ter;

* In some, cas­es es­pe­cial­ly where dis­missal is con­tem­plat­ed, while the em­ploy­ee is made aware of the dis­ci­pli­nary na­ture of a meet­ing, there are some oth­er com­mon flaws, in­clud­ing pro­vid­ing short no­tice, giv­ing no par­tic­u­lars of the al­le­ga­tion(s) or in­suf­fi­cient in­for­ma­tion, ten­der­ing writ­ten state­ments from wit­ness­es who are not present at the in­quiry; call­ing an em­ploy­ee to a dis­ci­pli­nary in­quiry at the close of which a pre­pared let­ter of dis­missal is de­liv­ered to the em­ploy­ee, a clear in­di­ca­tion that the de­ci­sion was tak­en be­fore­hand;

* The rea­sons stat­ed for dis­missal may dif­fer from the rea­sons stat­ed in the dis­ci­pli­nary charge(s). Quite fre­quent­ly, ad­di­tion­al rea­sons are added for the first time in the dis­missal let­ter. Al­so, there is no chance for a plea in mit­i­ga­tion.”

Fol­low labour laws

Labour re­la­tions spe­cial­ist and Joint Trade Union Move­ment (JTUM) as­sis­tant gen­er­al sec­re­tary Trevor John­son, who was al­so took part in the pan­el dis­cus­sion at the T&T Cham­ber of In­dus­try and Com­merce, sent the Sun­day Busi­ness Guardian notes of a sum­ma­ry of some of his re­marks.

Dur­ing the pan­el dis­cus­sion, he ad­vised em­ploy­ers and busi­ness lead­ers to fol­low due process when ter­mi­nat­ing the em­ploy­ment con­tract of an em­ploy­ee.

“From my ex­pe­ri­ence, wrong­ful dis­missals (ter­mi­na­tion of em­ploy­ment) are the among the most com­mon of mat­ters brought be­fore the In­dus­tri­al Court by trade unions. While em­ploy­ers may on oc­ca­sion find cause to dis­miss a work­er, this must be done in ac­cor­dance with due process and prop­er dis­ci­pli­nary pro­ce­dure. Fail­ure do so could re­sult in the In­dus­tri­al Court find­ing that the cir­cum­stances in which the work­er was dis­missed was ‘harsh, op­pres­sive and not in keep­ing with good in­dus­tri­al re­la­tions pro­ce­dures.’”

He al­so called for in­creased di­a­logue be­tween the em­ploy­ers and labour in re­solv­ing dis­putes in the work­place.

“Con­struc­tive di­a­logue and a good work­ing re­la­tion­ship are key fac­tors to­wards re­solv­ing dis­putes be­fore they es­ca­late to lit­i­ga­tion be­fore the courts. Hav­ing clear, doc­u­ment­ed poli­cies and stan­dard op­er­at­ing pro­ce­dures which are clear­ly pro­mul­gat­ed and made known to all em­ploy­ees in the or­gan­i­sa­tion is al­so an im­por­tant fac­tor. Where the work­force is unionised, then such el­e­ments and reg­u­lar non-cri­sis meet­ings where the par­ties can ad­dress is­sues be­fore they es­ca­late is a must-do in­gre­di­ent. This does not guar­an­tee that the union and the or­gan­i­sa­tion would agree on every is­sue, but di­a­logue does present a plat­form for the views of all sides to be heard and con­sid­ered and giv­en time the par­ties may be able to ad­just to a po­si­tion that both sides can live with.”

In an­swer­ing a ques­tion about the ways an em­ploy­ers can demon­strate a com­mit­ment to fair labour prac­tices while still pro­tect­ing their busi­ness in­ter­ests, John­son said busi­ness own­ers and com­pa­ny man­agers should abide by es­tab­lished labour laws.

“I think aware­ness of the slewIn of in­dus­tri­al re­la­tions laws, ILO con­ven­tions and a will­ing­ness to gen­uine­ly en­gage union and work­er rep­re­sen­ta­tives will go a long way and it has to be rec­i­p­ro­cal as well with mu­tu­al re­spect shown.”