Derek Achong

The Of­fice of the Chief Per­son­nel Of­fi­cer (CPO) has lost its fi­nal ap­peal against the In­dus­tri­al Court’s de­ci­sion to award com­pen­sa­tion to a for­mer Port-of-Spain City Cor­po­ra­tion work­er who was im­prop­er­ly ter­mi­nat­ed. 

De­liv­er­ing judg­ment yes­ter­day, the Unit­ed King­dom-based Privy Coun­cil dis­missed the ap­peal which was brought by the CPO’s Of­fice against the Amal­ga­mat­ed Work­ers’ Union. 

The ap­peal cen­tred around the cor­po­ra­tion’s em­ploy­ment of garbage com­pactor dri­ver Daniel Ri­ley, who was first hired in 1983. 

In May 1999, Ri­ley was charged with steal­ing 72 litres of gaso­line. He was sus­pend­ed pend­ing the out­come of his case. Al­though Ri­ley was even­tu­al­ly ac­quit­ted by a mag­is­trate, the cor­po­ra­tion, through the CPO’s Of­fice, ini­ti­at­ed dis­ci­pli­nary pro­ceed­ings against him. 

The dis­ci­pli­nary pro­ceed­ings be­gan in March 2002 but were on­ly com­plet­ed in Jan­u­ary 2007. 

While the tri­bunal was re­quired to de­liv­er its rul­ing in 10 days, it did so al­most a year lat­er.  

Ri­ley was found guilty of the charge and was ter­mi­nat­ed from the date of the al­leged of­fence. 

The union filed a trade dis­pute in the In­dus­tri­al Court, which was even­tu­al­ly de­cid­ed in Ri­ley’s favour. The In­dus­tri­al Court or­dered that he be re­in­stat­ed to his po­si­tion and com­pen­sa­tion based on his loss of earn­ings dur­ing the pe­ri­od of his lengthy sus­pen­sion. 

The CPO ap­pealed the de­ci­sion but lost in the Court of Ap­peal, which up­held the In­dus­tri­al Court’s de­ci­sion that there had been a breach of the cor­po­ra­tion’s griev­ance pro­ce­dure which re­sult­ed in sub­stan­tial pro­ce­dur­al un­fair­ness. 

In the judg­ment, the Privy Coun­cil ruled that it had the ju­ris­dic­tion to hear the ap­peal de­spite the In­dus­tri­al Court’s ex­clu­sive con­trol of in­dus­tri­al re­la­tions lit­i­ga­tion. 

Lord David Kitchin, who wrote the judg­ment, al­so stat­ed that the In­dus­tri­al court’s find­ings in the case were cor­rect. 

“The fail­ures by the cor­po­ra­tion were so sub­stan­tial that, in the In­dus­tri­al Court’s view, the le­gal­i­ty of the dis­ci­pli­nary process had been fa­tal­ly un­der­mined, nec­es­sar­i­ly ren­der­ing any sub­se­quent dis­missal for the al­leged of­fence un­fair,” Kitchin said. 

Kitchin al­so ruled that the Privy Coun­cil’s in­ter­ven­tion was not nec­es­sary as there had not been a sub­stan­tial mis­car­riage of jus­tice in the case. 

He al­so re­ject­ed the CPO’s claim that in cal­cu­lat­ing the com­pen­sa­tion for Ri­ley, the In­dus­tri­al Court failed to con­sid­er that he found a new job with sub­stan­tial earn­ings soon af­ter be­ing sus­pend­ed. 

Not­ing that the CPO did not raise the is­sue in the In­dus­tri­al Court or at the Court of Ap­peal, Kitchin said: “It is far too late to raise it now.” 

The CPO was rep­re­sent­ed by Pe­ter Knox, QC, and Olivia Wybraniec. Anand Be­har­ry­lal, QC, Lemuel Mur­phy, Ganesh Sa­roop and Alvin Pariags­ingh.