Airline Superintendents' Association v Trinidad and Tobago (bwia International) Airways Corporation and Bwia International Airways Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Gafoor, V.P.,Pounder, M. |
| Judgment Date | 05 November 2001 |
| Docket Number | Trade Dispute No. 35 of 1998 |
| Court | Industrial Relations Court (Trinidad and Tobago) |
| Date | 05 November 2001 |
Industrial Court
Gafoor, V.P.; Pounder, M.
Trade Dispute No. 35 of 1998
Mr. A. Jessamy Attorney-at-Law for Party No. 1.
Mr. E. Prescott Attorney-at-Law for 1st Party No. 2.
Mr. P. Cezair Industrial Relations Consultant for 2nd Party No. 2.
Industrial law - Contract of service — Termination — Failure to follow company procedure — Whether dismissal was justified.
This trade dispute between the Airline Superintendents’ Association [‘the Association'] and Trinidad and Tobago (BWIA International) Airways Corporation [‘the Corporation] concerns the dismissal of Richard Tom Wing [‘the Worker'] employed as Head, Trinidad and Tobago Airport Services.
The worker was dismissed with immediate effect by letter dated 28th January 1991 in the following terms:
“January 28 1991
Mr. Richard Tomwing
6 Hillock Place
Blue Range
DIEGO MARTIN
Dear Richard
It is with extreme regret that I must advise you of the termination of your employment which takes effect from Monday, January 28, 1991.
Among other things, an alarming number of issues have (sic) surfaced in the recent past which have indicated a total disregard on your part for the laid down systems and procedures of the Corporation.
Notwithstanding the extensive training and experience afforded you, the Corporation has had also to counsel with and caution you over time in respect of your management style, which has had a deleterious effect on the morale of the staff under your control and more significantly has reduced the confidence reposed in you by the Corporation.
Furthermore, and perhaps more disconcerting is the apparent extension of this negative approach to our passengers of which only recently there has been a complaint regarding an incident in which you were involved on the BW418 of November, 29, 1990.
As I intimated to you at the meetings held on Monday, January 21 and Tuesday, January 22, you do possess some strengths which could redound to the benefit of the Corporation, but unfortunately, your weaknesses have overshadowed same with tremendous implications.
Having regard to the above and for good reason, the Corporation is therefore unable to keep you in its employ any longer.
You are required to return all Corporation properties in your possession by January 31, 1991, before payment due to you for earned leave is processed through payroll action.
Sincerely,
Sgd. Mervyn A Webb
(Ag) Corporate Manager, Marketing
cc: Ian Bertrand, Managing Director
Pat Butcher, Head-Human Resources”
The dispute was referred to the court by the Minister of Labour in accordance with Section 59(5) of the Industrial Relations Act, Chapter 88:01 [‘the Act'] on 17th June, 1998 and the parties were directed by the court on 17th July 1998 to file Evidence and Arguments on or before 16th October, 1998 with replies, if necessary, on or before 30th October, 1998.
On 16th November, 1998 the court upon hearing Attorneys-at-Law for Party No 1 and Party No. 2 respectively ordered that BWIA International Airways Limited [‘the Company'] be joined as 2nd Party No. 2 to the dispute and directed on application by Party No. 1 that the time for Party No. 1 to file Evidence and Arguments be extended to 23rd November, 1998. Each party delivered Evidence and Arguments and replies thereto in compliance with the directions of the court.
Hearings in the matter commenced on 1st March 1999 and were finally completed on 10th July 2001.
At the hearings oral testimony on behalf of the Association was given by the worker and on behalf of the Corporation by Mervyn Webb and Mohan Chatar who at the time of the dismissal of the worker held the positions of Acting Corporate Manager and Traffic Supervisor respectively. These two officials have since retired from the Corporation.
It is not in dispute that the worker at the date of his dismissal had sixteen (16) years service with the Corporation, having been appointed to the position of Head of Trinidad and Tobago Airport Services on 30th June, 1989.
The worker testified that on the afternoon of 21st January, 1991 Webb called him to his office and apologetically informed him that he had been directed by the Board of Directors “through the Managing Director's office” to request his resignation failing which the Corporation would have to terminate his services. The worker further testified that Webb explained to him that the Corporation had received a report from the Ministry of External Affairs about an incident concerning the worker's alleged “mishandling of the then Nigerian High Commissioner to Trinidad and Tobago” on a BWIA flight in November 1990.
The worker attested that Webb in his presence telephoned the Managing Director, Mr. Ian Bertrand and at the end of his conversation with Bertrand informed him that he was to meet with Bertrand and himself at Sunjet House, Port-of-Spain the following morning. At that meeting, the worker continued, Bertrand repeated the gist of what Webb had said to him the previous afternoon and also requested his resignation. The worker attested that he informed Bertrand that he was not prepared to resign whereupon Bertrand told him to take the rest of the week off and at the end of the week to “inform Webb of his position”.
The worker went on to say that on the morning of the 28th January, 1991 he telephoned Webb at his office and informed him that he was still not in a position to resign. Some twenty minutes later Webb called him back and invited him to come to his office in half an hour. The worker affirmed that when he got to Webb's office Webb presented him with the letter of dismissal.
The worker attested that apart from the alleged incident involving the Nigerian High Commissioner the other grounds for his dismissal stated in the letter of dismissal were never identified to him. Further he had never been informed before then of any complaint against him nor was any explanation sought from him regarding the alleged incident concerning the Nigerian High Commissioner.
With regard to the Corporation's charge in the letter of dismissal that “an alarming number of issues have surfaced” indicating a “total disregard” by the worker for systems and procedures laid down by the Corporation the Corporation in its Evidence and Arguments contended that the worker without proper authority:
“(1) cancelled (or purported to cancel) the cleaning contract for areas of the airport terminal and office premises under his care;
(2) engaged the services of another or others to clean the said areas and premises;
(3) purchased and/or entered into contracts for the purchase or hire or use of equipment;
(4) authorised expenditure on capital purchases.”
The Corporation further contended that the worker by his conduct caused the Corporation “to suffer loss and/or to duplicate payment for cleaning services and/or caused embarrassment thereto as shown by an internal audit” the audit report in connection with which dated 2nd November 1990 was annexed to the Corporation's Evidence and Arguments.
The Corporation also contended that the worker persisted in breaches of the Corporation's policy although requested to refrain from doing so and therefore disobeyed lawful instructions to comply therewith.
The Corporation claimed that the worker was invited to explain his conduct but failed to do so satisfactorily and the Corporation therefore concluded that the worker was incapable of performing his duties “capably or competently or in conformity with the objectives and mission” of the Corporation as a consequence of which the Corporation lost confidence in the worker. The Corporation submitted that the worker's dismissal was neither harsh nor oppressive nor was it not in keeping with good industrial relations practices.
Several documents in support of the Corporation's contentions were appended to the Corporation's Evidence and Arguments among which was:
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(a) a copy of a memorandum dated 9th October 1987 sent to “Heads, Sub Heads and Line Managers” signed by “Head, Material Service and Maintenance Planning” setting out the Corporation's purchasing policy;
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(b) a copy of a memorandum from Bertrand dated 26th March, 1990 to Heads – Marketing Division, a copy of which was sent to the worker, warning officials concerned that breaches of purchasing procedures would no longer be tolerated by him.
A copy of a memorandum dated 13th August 1990 from the worker to his substantive manager, Lennox Scott, Senior Manager, Technical Operations which was tendered and marked RT9 reads as follows:
“Despite previous correspondence and discussions held with the Contractor as well as your office, the standard of cleaning continues to be deplorable in all areas.
A. BWIA Terminal and check-In Areas – Dirty, residue of polish accumulated in corners and sides of walls, unpolished floors.
B. All Traffic offices – Dirty and unpolished, have not been polished for several months. Carpets not shampooed for several months, glass panels and windows not cleaned. Air-conditioned grills not cleaned, drapes not vacuumed, areas not cob-webbed for several months.
C. Golden Ibis Lounge – Carpets not shampooed properly, area not cob-webbed. Toilet not properly cleaned, and has unpleasant odour, tiles unkept — grit and grime visible.
D. Toilets – not properly cleaned, wash basins not sparkling clean and toilets have unpleasant odour.
Based on the fact that you are unable to ensure that the Contractor meets and maintains an acceptable standard of cleaning as required by the Corporation, we have no other alternative than to cancel the cleaning contract with immediate effect.”
Another copy of the same memorandum tendered and marked ‘RT3’ bears notes thereon dated 14th August, 1990 from one...
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