Banking, Insurance and General Workers' Union
| Jurisdiction | Trinidad & Tobago |
| Judge | Mahabir, M. |
| Judgment Date | 16 December 2013 |
| Court | Industrial Court (Trinidad and Tobago) |
| Docket Number | Trade Disputes Nos. 165 and 199 of 2009 |
| Date | 16 December 2013 |
Industrial Court
Lutchmedial, V.P.; Albert, M.; Mahabir, M.
Trade Disputes Nos. 165 and 199 of 2009
Mr. Don Devenish (1st Vice President) for party No. 1.
Mr. Bronock A. Reid (Attorney-at-Law) for party No. 2.
Employment Law - Unfair dismissal — Age discrimination — In restructuring operations, Company unilaterally chose to make some Workers redundant by way of early retirement — Company admitted to choosing Workers on the basis of age — Finding by Court that this was discriminatory — Finding that Workers were dismissed in circumstances that were harsh, oppressive and contrary to the provision of good and proper industrial relations practices Damages awarded
The Banking, Insurance and General Workers' Union (“the Union”) brings complaints of direct age discrimination, indirect age discrimination, and unfair dismissal of Messrs Dennis Olton and Leroy Haye (referred to individually by their “surnames” or collectively as “the Workers”) against Repsol E& P T&T Ltd., their former employer (referred to as “the Employer” or “the Company”).
The issues in the claims of the Workers were set out in the Union's Evidence and Arguments filed at the Industrial Court (“the Court”) on 1st December, 2010. Similarly, the Company's Evidence and Arguments were filed at the Court on 21st December, 2010. The issues are as follows:
(i) Age Discrimination
The Union contends that the use of age as the sole criterion in terminating the services of the Workers is discriminatory and violates the International Labour Organization (“the ILO”) Conventions, specifically Convention No. 111 and the Caricom Model Harmonisation Act.
(ii) Direct Age Discrimination
The denial of the right to equality of treatment complained of by the Union is the selection of the Workers for dismissal solely on age.
(iii) Indirect Age Discrimination
The Union says that the application of the age criterion was discriminatory, which rendered the achievement of the Company's aim of retaining those workers who will best serve its business needs tainted by discrimination. More importantly, the Union claims that the Workers were put at a disadvantage as they reasonably expected to continue in employ to age 65 absent any misconduct listed in their contracts of employment.
(iv) Unfair Dismissals
The Union contends that the selection criterion was chosen arbitrarily and unfairly applied to the Workers, rendering their dismissal harsh and oppressive.
The Company denies the Union's claim. The Company asserts that in order to secure its future a restructuring exercise of its offshore operations was conducted, which resulted in the creation of a surplus of labour. The Company adduced into evidence that its legitimate aim was simply to retain those workers who would best meet its business needs going forward. In this regard, the Company deduced that its long term goals would be better served by having a relatively younger workforce.
Based on the foregoing, the Company determined that all non-managerial workers who were within five (5) years of retirement would be selected for early retirement.
Moreover, the Company argues that the established principle of last in first out (LIFO) was inapplicable to the circumstances it faced as all of its employees in the offshore operations had the same length of service in their employment. As such, the Company was entitled to use the best strategy for pursuing its long term goals. The strategy was executed in good faith.
(i) The Union contends that because of their discriminatory dismissal, the Workers should be compensated for their full loss flowing from the Company's unlawful act. The losses include: loss of earnings and pensionable benefits up to age 65.
(ii) The Company denies any wrongdoing and seeks the dismissal of the trade disputes.
Further or alternatively, should the Court finds the Company guilty of wrongdoing, then an award of damages “ought not to be in the range of what the Union is saying what to be awarded”.
(i) By letter dated 15th September, 2005, the Company made offers of employment to the Workers which they accepted.
Olton was hired as a Maintenance Supervisor and Haye as an Operations Supervisor.
(ii) By letters dated 17th & 28th July, 2008, the Workers were informed of the Company's Early Retirement Offer of a lump sum payment of 1.5months (salary and...
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