Bank and General Workers' Union v Singer Sewing Machine Company

• Jurisdiction: Trinidad & Tobago
• Judge: Ramchand, P.
• Judgment Date: 28 March 1991
• Court: Industrial Court (Trinidad and Tobago)
• Docket Number: 32 of 1990
• Date: 28 March 1991

Industrial Court

Ramchand, P.; Elcock, M.

32 of 1990

Bank and General Workers' Union

and

Singer Sewing Machine Company

Appearances:

Mr. Kyril Jack, Chief Grievance Officer for party no. 1.

Mr. Waldo E. Nunez, consultant for party no. 2

Industrial law - Contract of service — Whether contract to be terminated on ground of ill health — Collective agreement — Provision for assessment of worker by doctor agreeable to both company and union — Doctor recommending arbitration or failure of which worker to be deemed unfit on psychiatric grounds — Company ignoring recommendation — Company transferring worker — Worker able to invoke extended sick leave provision if condition worsens — Judgment of court sympathetic to worker.

Ramchand, P.

1 Mrs. Phyllis Rauseo (“the Worker”) joined the staff of the Singer Sewing Machine Company (“the Company') on 1st June, 1970 as a Sales Clerk, and was so employed by the Company on the 30th May, 1989 when the incident giving rise to this dispute occurred.

2 By letter dated 30th May, 1989 the worker purported to submit her resignation from the Company on grounds of ill health. This letter was accompanied by a medical report dated 17th May, 1989 from Dr. Chapman Boyd an “Occupational and Family Physician.” The following are the texts of these two documents:

“MEDICAL REPORT

Date 17-May-89

Mrs. Rauseo has been attending my office from 18 February 1989. She has been suffering from acute anxiety and depression arising from increasing stress to which she has been subjected in both the domestic and industrial environment.

It is likely that her output would be reduced by - her condition, and that her capacity for efficient a performance at her job will deteriorate significantly. Of greater importance is the observation that her condition has not been helped adequately by medication and psychotherapeutic support over a period of three months when last seen on 10 May.

In the circumstances, in view of the danger of more severe psychiatric illness, I must recommend that Mrs. Rauseo be discharged from her present employment on medical grounds. Should a consultant psychiatric opinion be required by her employer, this may be arranged at management's request.

/s/ B. Chapman Boyd.”

#x201C;30th May, 1989

Mr. R. Than,

General Manager,

Singer Sewing Machine Company Boundary Road

San Juan.

Dear Sir,

Medical Report

I wish to submit the attached Medical Report which has been prepared by Dr. Boyd. I wish therefore to formally tender my resignation on grounds of ill health. I hope that you understand the urgency of my situation. I wish to take this opportunity of thanking you for the many years of service which I have had with this Company. I would be grateful if you would outline the benefits I am likely to receive from the Company since I am being forced to resign for reasons of ill health.

Thanking you in advance.

I remain,

Yours faithfully,

/Sgd./ Phyllis Rauseo (Mrs.)”

3 The Company by letter dated 2nd June, 1989 rejected the worker's purported resignation on medical grounds and indicated that she should proceed on all of her then outstanding vacation leave of twenty-five working days. The letter further “required” that at the end of her said vacation leave she should be examined by a doctor agreeable to the Company.

4 The worker then proceeded on one month's sick leave to 30th June, 1989 on the basis of medical certificates from the said Dr. C. Boyd and thereafter proceeded on vacation leave from 3rd July to 31st July, 1989. Whilst on this vacation leave she submitted to the company a medical report dated 18th July, 1989 from Dr. Peter Lewis, Psychiatrist which read as follows:

“18th July, 1989

Mrs. Rauseo is a forty-three year old married women who was initially assessed on June 15th, 1989. I found her to be suffering from a Major Depression with associated insomnia anxiety and “varying somatic complaints. Her disorder was precipitated by significant domestic problems which are yet to be resolved.

She was initially treated by Dr, Chapman Boyd (who referred her to me) but she has not responded well to the usual antidepressant medication. At this present time she remains significantly depressed and it is my opinion that it would not be in the interest of her health for her to return to work at this time.

Sincerely Yours

/Sgd:/ Dr. Peter Lewis T.R.C.P.(C)

PSYCHIATRIST.

5 At this stage, the Bank and General Workers Union (“the Union”) commenced discussions with the Company on behalf of the worker, the Union being the recognised majority union for workers of the bargaining unit of which the worker was a member. At a meeting between the Company and the Union held on 7th August, 1989, the Company rejected the Medical Report of Dr. Peter Lewis and agreed with the Union that Article 16(5) of the then subsisting collective agreement should be implemented. This Article provides that: “A worker whose services are determined on grounds of ill-health, shall be entitled to Severance Pay, provided he/she is certified as medically unfit and unable to do further work, by a doctor agreeable to both the Company and the Union.”

6 However in spite of this agreement, the Company unilaterally made arrangements for the worker to undergo a medical examination by Dr. Carl Apang. This was done on 13th September, 1989, and in his report dated 20th October, 1989, Dr. Apang stated:

“In my opinion, examination revealed no clinical abnormal physical findings except refraction error for which she used a tinted lens that did not correct her poor visual acuity correctly. This may contribute to some somatic complaints such as headache.

Mrs. Rauseo's depression and anxiety were apparently related to her domestic problems, however her symptoms have been prolonged.

In view of her somatic complaints, which she stated were occurring with increased frequency, I advise that investigations such as skull x-ray, ECG, complete blood count, hemoglobin, fasting blood sugar, serum creatinine, thyroid function test be done to exclude physical cause.

If no cause could be found to account for her symptoms, Dr. Chapman Boyd recommended should a consultant psychiatric opinion be required by her employer, this may be arranged at management's request.

Sincerely

/Sgd:/ Carl V. Apang M.D.”

7 The Company did not inform the Union of the contents of this report.

8 Finally, both parties got round to implementing the aforementioned Article 16(5) and selected Professor Michael H. Beaubrun, Emeritus Professor of Psychiatry of the University of the West Indies. Professor Beaubrun examined the worker on 2nd November, 1989; his report dated 6th November, 1989 which gives a concise history of the worker's ailment read as follows (emphasis added):

“November 6th, 1989

Mr. A. Khan,

General Manager,

Singer Sewing Machine Company,

P.O. Box 603.

PORT OF SPAIN.

Dear Mr. Khan,

Re: Psychiatric opinion on Mrs. Phyllis Rauseo's fitness for work

Mrs. Rauseo was seen by me at your request on November 2nd, 1989, for examination to determine her fitness...