Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

The In­dus­tri­al Court has strong­ly crit­i­cised ma­jor­i­ty state-owned telecom­mu­ni­ca­tions provider Telecom­mu­ni­ca­tions Ser­vices of T&T (TSTT) for its han­dling of the re­trench­ment of 500 work­ers, in­clud­ing for­mer Com­mu­ni­ca­tions Work­ers’ Union (CWU) sec­re­tary-gen­er­al Clyde El­der, in 2018.

De­liv­er­ing a judg­ment on Fri­day, four In­dus­tri­al Court judges from the court’s Es­sen­tial Ser­vices Di­vi­sion (ESD) up­held four trade dis­putes brought by CWU. They or­dered $10,000 in com­pen­sa­tion for each of the work­ers ex­cept El­der as they di­rect­ed the com­pa­ny to im­me­di­ate­ly re­scind his re­trench­ment.

The com­pa­ny was al­so or­dered to pay El­der $100,000 in ex­em­plary dam­ages and the salary and re­tire­ment ben­e­fits he would have re­ceived had he not been wrong­ly re­trenched along with the work­ers. This amounts to ato­tal of over $5 mil­lion.

The cas­es stemmed from a re­trench­ment ex­er­cise con­duct­ed by the com­pa­ny in late 2018. The com­pa­ny claimed that it took ac­tion be­cause of ma­jor drops in rev­enue due to the de­cline of its tra­di­tion­al busi­ness and the rise of broad­band in­ter­net. It claimed that it prop­er­ly con­sult­ed with the union, and the work­ers were paid their law­ful ben­e­fits un­der the Re­trench­ment and Sev­er­ance Ben­e­fits Act.

The union not­ed that the re­trench­ment came af­ter TSTT ac­quired Massy Com­mu­ni­ca­tions Ltd and re­brand­ed it Am­plia Com­mu­ni­ca­tions Ltd. It claimed that the com­pa­ny did not en­ter in­to mean­ing­ful dis­cus­sions be­fore tak­ing the ac­tion and the dis­missals were harsh and op­pres­sive. It al­so claimed that the com­pa­ny breached the “last in, first out” (LI­FO) pro­vi­sions of two col­lec­tive agree­ments as it sent se­nior staff and re­tained ju­nior staff who held sim­i­lar po­si­tions.

In­dus­tri­al Court judges Lawrence Achong, Michelle Austin, An­drew Stroude, and Vin­cent Cabr­era did not ques­tion TSTT’s de­ci­sion to re­trench but found fault in the man­ner it was con­duct­ed.

Cabr­era, who wrote the judg­ment, said, “Even though the ob­jec­tives of the em­ploy­er may be le­git­i­mate and nec­es­sary, the em­ploy­er should not shirk its re­spon­si­bil­i­ty to be fair and to be guid­ed by the leg­is­la­tion, the ar­ti­cles of the col­lec­tive agree­ment, and by the prin­ci­ples of good in­dus­tri­al re­la­tions.

“In this con­nec­tion, the em­ploy­er did not ad­vance any good rea­son why, de­spite sev­er­al re­quests from the recog­nised ma­jor­i­ty trade union for in­for­ma­tion re­gard­ing the pro­posed num­ber of work­ers to be re­trenched, it chose to pro­vide such in­for­ma­tion very late in the process and thence hur­ried the trade union in­to a re­sponse whilst af­ford­ing pre­cious lit­tle time for the trade union to analyse their pro­pos­als and con­sult with the rel­a­tive­ly large num­ber of work­ers, spread over many dif­fer­ent parts of both is­lands and to for­mu­late its own counter-pro­pos­als.” 

Com­pa­ny gets un­til March 10 to make pay­ments

Cabr­era and his col­leagues up­held the union’s claims in re­la­tion to breach­es of the col­lec­tive agree­ments as they or­dered $10,000 in com­pen­sa­tion for each of the re­trenched work­ers. The com­pa­ny was giv­en un­til March 10 to make the pay­ments.

Deal­ing specif­i­cal­ly with El­der’s re­trench­ment, Cabr­era not­ed that it came months af­ter the com­pa­ny grant­ed him un­paid leave be­tween Ju­ly 2017 and Ju­ly 2020 to per­form full-time union du­ties. He not­ed that un­der the col­lec­tive agree­ments, the com­pa­ny agreed to grant leave of ab­sence to work­ers elect­ed to full-time po­si­tions in the union.

Re­ject­ing the com­pa­ny’s claim that El­der did not have a role since 2008, Cabr­era ques­tioned why it grant­ed the leave short­ly be­fore re­trench­ment. “The ar­gu­ments of the em­ploy­er con­cern­ing job in­cum­ben­cy of the work­er and non-place­ment of the work­er seem a bit il­log­i­cal, some­what ir­ra­tional, and per­haps even ir­rel­e­vant,” Cabr­era said.

“Their ar­gu­ment that the work­er held no job po­si­tion with the em­ploy­er is ill-found­ed since this was a known fac­tor at the time when he was grant­ed leave of ab­sence to per­form full-time trade union du­ties,” he added. 

He al­so crit­i­cised the com­pa­ny for fail­ing to prop­er­ly con­sult in re­la­tion to El­der’s re­trench­ment, as he not­ed that it (the com­pa­ny) must have known it would have been a sen­si­tive mat­ter con­sid­er­ing El­der’s po­si­tion in the union.

Cabr­era al­so stat­ed that the ev­i­dence sug­gest­ed that El­der was tar­get­ed be­cause of his union role. “Ter­mi­na­tion of an em­ploy­ee while on ap­proved leave for full-time ser­vice in the trade union can al­so be con­strued in this cir­cum­stance as an act of re­tal­i­a­tion against the trade union for vig­or­ous­ly de­fend­ing the re­duc­tion of the size of the bar­gain­ing unit,” he said.

Pro­vid­ed that the com­pa­ny does not ap­peal the judg­ment and ob­tain a stay, it is to pay El­der his com­pen­sa­tion by the end of next month.

El­der pleased with out­come

In a tele­phone in­ter­view yes­ter­day morn­ing, El­der said he was pleased with the out­come. “It is a land­mark vic­to­ry be­cause I do not know of any oth­er in­stance where a mass re­trench­ment would have tak­en place like this, and the union would have tak­en it to court and been vic­to­ri­ous,” he said.

El­der said he felt vin­di­cat­ed as he was crit­i­cised by union mem­bers for the han­dling of the re­trench­ment dur­ing his tenure at the helm of the union. “When I read the judg­ment, I feel the ac­tions I would have tak­en as sec­re­tary gen­er­al were, in fact, the cor­rect ones. The re­spons­es of the union to the com­pa­ny’s re­trench­ment ex­er­cise were the cor­rect ones. The ap­proach of the union was the cor­rect one,” he said.

How­ev­er, he ex­pressed dis­ap­point­ment over the com­pen­sa­tion award­ed to his col­leagues. “At the end of the day, I re­al­ly hoped that the work­ers would have got­ten, if not re­in­stat­ed if not more tan­gi­ble and mean­ing­ful com­pen­sa­tion, but at the end of the day it is what it is,” he said.

In terms of the treat­ment met­ed out to him, El­der de­scribed it as wicked, spite­ful, and vin­dic­tive. “It was al­ways in­tend­ed to break the union. They thought they could do it with im­puni­ty,” he said.

He al­so ex­pressed hope that the out­come would pre­vent such ac­tion in the fu­ture, es­pe­cial­ly by oth­er com­pa­nies. “It sends a mes­sage to em­ploy­ers that you are to treat unions with that lev­el of re­spect, de­cen­cy, and com­mon cour­tesy that they de­serve to be treat­ed with,” El­der said.

Con­tact­ed yes­ter­day, cur­rent CWU sec­re­tary-gen­er­al Joanne Ogeer de­clined to com­ment as she said she was en­gaged in an ex­ec­u­tive meet­ing over the judg­ment. 

The union was rep­re­sent­ed by Dou­glas Mendes, SC, An­tho­ny Bul­lock, and Clay Hack­ett. The com­pa­ny was rep­re­sent­ed by Sashi In­dars­ingh.

TSTT: We re­spect the le­gal process

In a state­ment is­sued yes­ter­day, the com­pa­ny ac­knowl­edged the judg­ment as it said it re­spects the le­gal process. “We re­main fo­cused on en­sur­ing com­pli­ance with le­gal re­quire­ments while con­tin­u­ing to serve the in­ter­ests of our em­ploy­ees, cus­tomers, and stake­hold­ers,” it said. It said that it could not com­ment fur­ther as it was care­ful­ly eval­u­at­ing the im­pli­ca­tions of the court’s de­ci­sion.