All Trinidad General Workers' Trade Union v ACE Contractors Ltd

• Jurisdiction: Trinidad & Tobago
• Court: Industrial Court (Trinidad and Tobago)
• Judge: George-Marcelle, C.
• Judgment Date: 20 July 2016
• Docket Number: Trade Dispute No. 106 of 2014(S)
• Date: 20 July 2016

All Trinidad General Workers' Trade Union

and

ACE Contractors Limited

George-Marcelle, C.; Mohammed, M.; Mitchell, M.

Trade Dispute No. 106 of 2014(S)

Industrial Court

Employment Law - Trade dispute — Termination of employment — Constructive dismissal — Whether worker was constructively dismissed — Whether company breached employment contract with worker — Damages awarded.

Appearances:

Mr. J. Jaglal 1st Vice President — for Party No. 1

Mr. K. Benjamin Attorney-at-Law — for Party No. 2

George-Marcelle, C.

1 The Parties to this Trade Dispute are the All Trinidad General Workers' Trade Union hereinafter referred to as (“the Union”) and Ace Contractors Limited hereinafter referred to as (“the Company”).

2 This dispute was reported by the Union to the Honourable Minister of Labour and Small and Micro Enterprise Development pursuant to Section 51 (1) (c) of the Industrial Relations Act, Chapter 88:01, and concerns the constructive dismissal of Mr. O'Neil Madho Singh hereinafter referred to as (“the Worker”) effective January 30, 2013.

THE UNDISPUTED FACTS:–

3 The Worker was engaged by the Company as a Labourer at Super Industrial Services (SIS) on the 5 ^th January, 1999. He was subsequently transferred to Ace Contractors Limited. This Company was an Associate Business/Strategic Business Unit of SIS. In or around the year 2008 the Worker was assigned to Industrial Plant Services Limited (I.P.S.L) as a Plant Fitter, in the Maintenance Department based at Caribbean Nitrogen Company Limited (CNCL).

4 As a Plant fitter, the Worker was not given a job description and his duties included, but were not limited to pipe repairs, opening of vessels, langes, and mechanical work on compressors and turbines. At this position, the Worker's substantive rate of pay was $43.00 per hour or $3440.00 per fortnight.

5 However, on the 28 ^th December, 2012 the Worker was informed by his Supervisor, Mr. Parmanand Jagroop that his services were no longer required at CNCL and as a result he was instructed to report back to Ace Contractors Limited's compound for work at Claxton Bay.

6 The Worker at this point, requested and was granted by Mr. Jagroop two weeks' vacation leave. Upon completion of the Worker's annual vacation leave, he reported to the Company's premises at Claxton Bay.

THE UNION'S CASE:–

7 It is the Union's case, that the Worker was not assigned any duties when he returned to work. Actually, the Union has argued that the Worker had tried on numerous occasions to contact Mr. JEtgroop, but that all his calls went unanswered.

8 The Union has submitted that on 23 January, 2013 the Worker received a telephone call from Mr. Jagroop who Instructed him to report for duties on 28 ^th January, 2013 at the Mechanical Workshop of the CNCL Plant to sort the tools.

9 The Union further submitted that when the Worker had reported for duties at the CNCL Plant on 28 ^th January 2013, the Worker was informed by the Mechanical Supervisor, Mr. Ramesar Latchman that Mr. Jagroop had instructed that the Worker was responsible for cleaning and sorting the tool area. The Worker duly complied.

10 However, on the 30 ^th January, 2013, while the Worker was at the Workshop performing his duties, at approximately 11:00 am he received a call from Mr. Jagroop informing him that his duties would be the collection and disposal of garbage, and that his pay would have been reduced to $35.00 per hour. The Worker then, vehemently complained to Mr. Jagroop that no one had indicated that he would be asked to perform tasks in another classification and at a reduced salary. Mr. Jagroop's response to the worker was “to do whatever they tell you to do”. The Worker continued to complain to Mr. Jagroop about being assigned duties that were not within his classification and having had no redress to his complaints left the work site.

11 The Union has contended that the Company breached the principles of good industrial relations practice and based its contentions as follows:

“The Employer acted in breach of the principles of Natural Justice in unilaterally changing the terms and conditions of employment of the worker without giving adequate notice of the intended change thus not allowing the Worker to discuss such changes with the Employer.”

The Union then cited T.D. 242/87 Managers and Supervisors' Association of Trinidad and Tobago and Secondary Schools Maintenance. Training and Security Company Limited in which their Honours Valere and Elcock stated:

“…we would like to make it abundantly clear that the terms and conditions of employment of an employee cannot be unilaterally altered by the employer without his or her consent.”

12 The Union further contended that the Employer's actions placed the worker in a position whereby a situation of duress was created whereupon the only practical cause of action would have been to leave the employ of the Company.

13 The Union then cited the case of T.D. 52/83 between. Emile Elias, M.S.A.T.T (1.983) where the Court held that:

“The principle underlying constructive dismissal is that the worker is entitled to treat himself as discharged from his employment where his employer is guilty of conduct which is a significant breach of the contract of employment”

14 The Union further cited the case of T.D. 197/2002 between Oilfield Workers Trade Union and Schlurnberger (Trinidad) incorporated where His Honour Mr. A. Ramrekersingh stated:

“Constructive dismissal occurs in circumstances where the behavior of the employer Is so unreasonable or intolerable that it amounts to a fundamental breach of the employment contract The essence of constructive dismissal is captured by Lord Denning (M.R) in Western Excavating (ECK) Ltd V. Sharp (1978) Q.B. 761.

“If the employer is guilty of conduct which Is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or alternatively, he may give notice and say that he is leaving at the end of the notice. But the conduct must in either case be significantly serious to entitle...