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.”
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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.”
