A former medical orderly at the San Fernando General Hospital has lost his unfair dismissal lawsuit against the South West Regional Health Authority (SWRHA) for terminating him for inciting a group of colleagues to engage in unlawful protest action.
In a judgement delivered on Tuesday, High Court Judge Ricky Rahim dismissed Andy Acosta’s case and ordered him to pay the SWRHA $14,000 in legal costs for defending his failed lawsuit.
“When the chaff is dusted off, therefore, the complaints by the Claimant of breaches of the part of the Defendant in engaging the disciplinary process (to the extent that they may have occurred) have been assuaged by his actions in refusing to participate on the one hand and on the other are not so egregious so as to result in a finding that the Defendant breached its contract with the Claimant by wrongful dismissal,” Justice Rahim said.
According to the evidence in the case, Acosta was terminated by the SWRHA’s Board of Directors after its disciplinary tribunal found him (Acosta) guilty of contravening the provisions of the Industrial Relations Act (IRA).
The disciplinary action stemmed from an incident at the hospital in January 2019.
The SWRHA claimed that the industrial action was illegal, as its employees could only engage in such if their lives were under threat because it provided an essential service under the legislation.
It claimed that its board was entitled to terminate Acosta’s employment, as the allegations against him were investigated, he was given an opportunity to respond, he was suspended on basic pay and was placed before a disciplinary tribunal.
As a preliminary point in the lawsuit before Rahim, Acosta, who served as president of the Unified Health Sector Workers’ Union, claimed that the SWRHA breached its own regulations, as it was required to consult with the Office of the Director of Public Prosecutions (DPP) before initiating the disciplinary process, as he was accused of committing a criminal offence under the IRA.
While Justice Rahim ruled that the SWRHA had to engage in the consultation, he noted that the lack thereof did not render the disciplinary proceedings null and void.
Justice Rahim noted that as no criminal proceedings were subsequently instituted by the police, Acosta did not suffer any prejudice.
In the case, Rahim had to analyse Acosta’s evidence and that of several officials at the hospital and one of Acosta’s colleagues, to determine whether he (Acosta) incited his colleagues to engage in the protest, which the SWRHA claimed briefly endangered the lives of patients at the hospital.
“It is abundantly clear to the court on the totality of the evidence that the Claimant was indeed the one who called for and caused the industrial action on that day,” Justice Rahim said.
In considering the disciplinary process applied to Acosta, Justice Rahim noted that he was wrongfully informed of the allegations by the investigator appointed by the SWRHA and not its CEO as required. He also noted that the investigator did not give Acosta the seven days’ notice to respond to the allegation and he was only allowed two days.
However, he noted that the breaches were inconsequential, as Acosta refused to accept the letter.
Justice Rahim also noted that the tribunal wrongly informed Acosta that his union or legal representative would not be able to cross-examine witnesses before it but noted that such could not invalidate the work of the tribunal based on Acosta’s conduct.
“There would have been fertile ground for complaint but the claimant simply refused to participate and left the hearing. No unfairness would, therefore, have occurred in this regard when his refusal to participate is considered,” Justice Rahim said.
As part of his judgement in the case, Justice Rahim discharged an interim order he granted, preserving his position as an orderly pending the outcome of his case.
Acosta was represented by Lloyd Elcock, while Roger Kawalsingh, Ashley Roopchansingh and Carla Scipio represented the SWRHA.
— Derek Achong
