Banking Insurance and General Workers' Union v Ministry of Health and Chief Personnel Officer

• Jurisdiction: Trinidad & Tobago
• Court: Industrial Court (Trinidad and Tobago)
• Judge: Ramrekersingh, M.
• Judgment Date: 23 July 2012
• Docket Number: Trade Dispute 229 of 2010
• Date: 23 July 2012

Banking Insurance and General Workers' Union

and

Ministry of Health and Chief Personnel Officer

Lutchmedial, V.P.; Ramrekersingh, M.; Jack, M.

Trade Dispute 229 of 2010

Industrial Court

Employment Law - Trade dispute — Termination of employment — Dismissal — Claim for loss of earnings, compensation/damages, interest in payments, exemplary damages and costs — Whether worker placed in position for which he did not apply and was not qualified — Worker erroneously appointed to position for which he was unqualified — Dismissal found to be harsh and oppressive and contrary to principles of good industrial relations practice — Industrial relations principles to prevail over those of the common law and not be fettered by legal forms and technicalities — Damages awarded — Exemplary damages — awardee — Quantum — Costs equivalent to 25% of total damages awarded — Industrial Relations Act, Chapter 88:01, s. 10(2), (3), (4), (5).

Appearances:

Mr. D. Mendes S.C., Mrs. G. Gellineau attorneys-at-law - for Party No. 1

Mr. K. Ramkissoon, Mr. P. Ramkissoon attorneys-at-law - for 1st Party No. 2

Ms. S. Genas, Ms. S. Aziz attorneys-at-law - for 2nd Party No. 2

Ramrekersingh, M.

1 This trade dispute is between Banking Insurance and General Workers' Union (“the Union”) and the Ministry of Health (“the Ministry”) and the Chief Personnel Officer (“the CPO”). It concerns the termination of the services of consultant, Nicholas Cumberbatch (“the Worker”), effective September 09th, 2008. (See Certificate of Unresolved Dispute issued by the Minister of Labour dated June 10th, 2010).

2 The CPO was joined as a party to the dispute on November 24th, 2011 on the application of the Union under Section 11 of the Industrial Relations Act (Ch. 88:01).

3 Hearing of this trade dispute was concluded on June 22nd, 2012 when the Union filed its response to the written submissions of the Ministry of Health (Counsel for the Union made his closing submissions orally on May 24th, 2012. Counsel for the Ministry was granted leave to make his closing submissions in writing on or before June 04th, 2012. Counsel for the Union was directed to file his response, if any, on or before June 18th, 2012.).

4 The Court wishes to state that the role of the CPO in this trade dispute was at most very marginal. Indeed, it raises the issue of the CPO's locus standi as the notional employer of Contract Officers hired by individual Ministries. Did the framers of the Act (Ch. 88:01) intend that s.2 (4) would apply to contract officers in the Public Sector, a rarity at that time? However, we are not called upon to make a determination on that issue in the instant trade dispute.

5 The content of this trade dispute demonstrates that Ministries and the CPO need to calibrate the recruitment, selection and compensation functions more finely in order to avoid some of the difficulties involved in contract appointments.

EVIDENCE AND ARGUMENTS

6 The three (3) parties to this trade dispute submitted written Evidence and Arguments as well as witness statements. Indeed, the documentation is quite substantial.

• (i) The Union

The Union contends that the Worker's original contract with the Ministry of Health was never honoured. “Instead he was offered in the first instance an eight-month replacement contract that was backdated from September 12th, 2007, which was his assumption date, to May 12th, 2008. In the second instance he was given a three-month contract from June 09th, 2008 to September 09th, 2008”

The Union further contends that there was no basis for his dismissal which was in breach of natural justice, harsh and oppressive and not in accordance with the principles of good industrial relations practice.

The Union's prayer is for

• • loss of earnings;

• • compensation/damages, and

• • interest on payments.

In his closing submissions counsel for the Union added exemplary damages and costs.

• (ii) a. The Ministry of Health

The Ministry of Health contends that while it “made every effort to maintain the Worker's initial three (3) year contract … the CPO is the body charged with approving the Terms and Conditions of Employment and whose decision under the circumstances were (sic) final”.

The Ministry further contends that the Worker's objections to the second contract were not substantial. Moreover, he understood the Ministry's position and was “under no duress to sign the consultancy agreement”.

The Ministry finally contends that the Worker's contract by his own admission came to an end and his services were therefore not terminated.

The Ministry's prayer is for the trade dispute to be dismissed on the preponderance of evidence.

• (iii) b. The Chief Personnel Officer

The CPO contends that the Worker did not meet the basic requirements for the position of Hospital Information Systems Specialist and it would have been in breach of its statutory responsibilities if it recommended terms and conditions for a candidate who did not meet the basic requirements of the position.

The CPO therefore recommended that the Ministry of Health approach Cabinet for the approval of a position appropriate to the Worker's qualifications.

The CPO's actions were in accordance with equity and good industrial relations practices.

EVIDENCE

7 The Union initially called one witness — the Worker — who in addition to his very detailed witness statement (Exhibit NC1A) gave brief oral evidence in chief and was cross-examined by counsel for the Ministry.

8 With leave of the Court (The Court had earlier granted leave to the Ministry to file witness statements from two additional witnesses. The Union then applied successfully for leave to have Dr. Aziz submit a witness statement.) the Union called a second witness Dr. Soraya Aziz — a member of the panel which interviewed the Worker on August 02th, 2007. She also submitted a witness statement (Exhibit SA1) and gave oral evidence.

9 Initially the Ministry presented one witness statement — that of the Permanent Secretary, Ms. Sandra Jones. She also gave oral evidence. Subsequently two other witnesses, Ms. Margaret Richardson (Deputy Permanent Secretary) and Mr. Heera Rampaul (Manager Information Systems Technology), submitted witness statements and gave oral evidence (Exhibits MR1 and HR1 respectively).

10 The CPO called one witness — Mr. Gary Joseph — who submitted a witness statement (Exhibit GJ1) and gave brief oral evidence.

THE UNION

11 The Worker — Nicholas Cumberbatch

12 He is a qualified health professional with “additional qualifications and experience in the field of project management”. After having lived in Canada since 1968, he returned to Trinidad and Tobago in 2005 to work with the Commission of Enquiry into the Public Health Care Services.

13 On October 13th, 2006 — as the Commission's work was coming to an end — in response to a newspaper advertisement he applied for one of the five (5) positions of Project Manager in the Health Sector Reform Programme.

14 He was interviewed for the position of Project Manager on July 24th, 2007 and August 02nd, 2007. During the period between application and interview he was considering the option of remaining in Trinidad and Tobago.

15 At the interview of August 02nd, 2007 three (3) projects were identified as possibilities to be assigned to him.

16 In response to Ms. Pascall (Chairman of the Interviewing Committee) he submitted an updated curriculum vitae on August 03rd, 2007.

17 On August 07th, 2007 one Ms. Ali informed him that he had been selected for the position of Project Manager and he indicated his willingness to accept the position.

18 The said Ms. Ali asked him on or around September 07th, 2007 when he could begin working. He agreed to start on September 12th, 2007 although he had not yet received a letter of appointment.

19 When he assumed duty on September 12th, 2007 he was assigned responsibility for two projects.

20 He received his letter of appointment on September 13th, 2007 (Exhibit NC4) which stated that he was “successful at the recent interviews held for the contract position of Hospital Information Systems Specialist…” He was offered a three year contract with a compensation package of $24,800.00 recommended by the CPO. He was given seven (7) days in which to accept the offer.

21 He expressed his concern at the job designation to his Supervisor (Sandor), Dr. Soraya Aziz and Ms. Ali. The last named told him that those were the terms and conditions which the CPO had approved.

22 Ms. Ali asked him to submit a letter of acceptance. He complied with the request on September 13th, 2007 (Exhibit NC5) without referring to the nomenclature of the position. She then asked him to submit a letter stating that he had assumed duty. Again he complied by facsimile dated September 14th, 2007 (Exhibit NC6). On this occasion he used the title of the position, Hospital Information Systems Specialist.

23 He persistently enquired about the readiness of his contract and the correction to his job title.

24 On November 01st, 2007 he received a faxed copy of his contract from Ms. Ali (Exhibit NC8). The job designation was “specialist”. The Head of Human Resources at the Ministry asked him to sign that contract by the next day so that the Ministry could satisfy certain requirements of the Inter-American Development Bank. He complied in good faith, accepting Ms. Ali's assurance that the anomaly regarding his position title would be sorted out later. The contract was for the period from September 13th, 2007 to September 10th, 2010.

25 He wrote to Ms. Ali on November 04th, 2007 about the correct job designation (Exhibit NC9) but continued to work on the two projects to which he was assigned.

26 When he tried to access the motor car loan facility and the tax exemption benefit he ran into difficulty. Before that matter could be resolved he was called to a meeting with Human Resource...