Chief Personnel Officer v Public Services Association; The Oilfields Workers' Trade Union v Gulf City Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Seale, C.
• Judgment Date: 23 March 2006
• Court: Industrial Relations Court (Trinidad and Tobago)
• Date: 23 March 2006
• Docket Number: ST No. 2 of 1981

Industrial Court

Industrial Court

Donaldson-Honeywell, C.; Ashby, M.; Harrigin, M.

Seale, C.

ST No. 2 of 1981

Trade Dispute No. 167 of 2004

Chief Personnel Officer

and

Public Services Association

The Oilfields Workers' Trade Union

and

Gulf City Limited

Appearances:

Mr. J. Manswell and Mr. B. St. Louis Industrial Relations Consultants for Party No. 1

Ms. G. Samuel Attorney-at-Law for Party No. 2

Appearances:

Mr. H. Thompson Executive Vice President for Party No. 1

Ms. G. Baird Attorney-at-Law for Party No. 2

Employment Law - Ruling on preliminary points raised by Chief Personnel Officer — Delay in prosecuting dispute — Prejudice Whether dispute should be dismissed — Chief Personnel Officer did not establish that in spite of delays there could still have been a fair hearing of substantive issues — No information presented on conditions that prevailed at the Printery nor a comparative analysis of conditions given — Matter laid dormant for 25 years therefore a fair hearing was not possible — Dispute dismissed.

JUDGMENT OF THE COURT

1 On February 7, 2006 the Special Tribunal ruled on Preliminary Points raised by the Chief Personnel Officer j” CPO”] on July 11, 2005. Essentially the GPO sought that the dispute be dismissed on the basis of the Public Service Association's [PSA's] inordinate delay in prosecuting the dispute which prejudiced the possibility of a fair hearing of substantive issues raised.

2 The order of the Special Tribunal on February 7, 2006 was an interim ruling which allowed for the filing of affidavits in support of and against the CPO's contention that the dispute should be dismissed. The CPO was required to file an affidavit with evidence that a fair trial is no longer possible. The PSA's affidavit was required to provide explanations for the inordinate delay in prosecuting the dispute and also evidence that a fair hearing of the substantive issues is still possible after 25 years delay.

3 The following evidence and submissions comprised the record of the hearing in relation to the preliminary points:–

• 1. The PSA's referral letter filed on March 16, 1981.

• 2. The CPO's Evidence and Arguments filed on May 4, 1981.

• 3. The PSA's Evidence and Arguments filed on August 3, 2004.

• 4. The CPO's second Evidence and Arguments filed on September 3, 2004. (End of Page 2)

• 5. The submissions of both parties made orally on July 11 & 19, 2005 the CPO's having been reduced to writing on July 15, 2005.

• 6. The. Affidavit of Angela Sinaswee-Gervais, Director Benefits Management Ag. of the Personnel Department filed on February 17, 2006 on behalf of the CPO.

• 7. The Affidavit of Emerson Martin, Civil Servant employed as Printing Operator 1 at the Government Printery filed on February 17, 2006 on behalf of the PSA.

• 8 The Cross-Examination of the CPO's deponent Mrs. Sinaswee-Gervais on March 1, 2006.

4 The Special Tribunal, in making a determination on the issues arising from the Preliminary Points and in particular whether the dispute should be dismissed, considered several factors including the following:–

• (i) The PSA's referral letter defines the dispute referred as one “over non-payment of an allowance to officers employed in the mono-casting section of the Government Printery.” It does not specify the job titles of these officers and omits to indicate the type of allowance sought and the quantum. The CPO would have had no indication other than from prior negotiations with the PSA as to exactly what was claimed. The Special Tribunal not being privy to such discussions would have had no record of the scope of the dispute prior to filing of Evidence and Arguments.

• (ii) The CPO's first Evidence and Arguments sets out the history of the dispute noting that the allowance claimed by the PSA by letter to the CPO prior to referral of the dispute to the Court was in the amount of $200 per month. The type of allowance claimed was a heat allowance and it was for Printing Operators allocated to the Mono-Casting Section of the. Government Printery. The CPO by its Evidence and Arguments and without the benefit of further and better particulars from the PSA identified the relevant officers as — 1 post of Printing Operator IV (in charge of the Mono-Casting (End of Page 3) Section) and 10 posts of Printing Operator II (Caster Attendants). The CPO's Evidence and Arguments respond to the PSA's referral by alleging firstly that the Printing Officer IV was not exposed to heat to the same degree as other officers and therefore not entitled to an allowance. Secondly, the CPO alleged that the Printing Operators II had already been compensated for being exposed to heat and fumes in that the 1966 classification moved them from Caster Attendants to Printing Operators II although they only qualified for the lower grade of Printing Operator I. Thus they were not entitled to heat allowance.

• (iii) The Special Tribunal in making its Order that the PSA file Evidence and Argument before August 6, 2004 or the dispute would be dismissed for Want of Prosecution, could not thereby have waived its jurisdiction to determine the points subsequently raised by the CPO in favour of dismissing the dispute or in any way have excused the Association from blame. The PSA was merely given one final opportunity to file. The Special Tribunal and the CPO would have been unable to determine whether the inordinate delay had prejudiced the prospect for a fair hearing of the substantive issues until the PSA filed Evidence and Arguments. The Special Tribunal's determination at the stage of this ruling goes beyond the question simply as to whether to dismiss for want of prosecution as in a sense the PSA has now (though belatedly) taken steps to prosecute. What we are now determining is whether in light of the inordinate delay fair hearing of the substantive issues is possible.

• (iv) The PSA's Evidence and Arguments filed 23 years after the referral still does not identify the job titles of the officers alleged to have been exposed to abnormal heat. It identifies, for the first time in correspondence to the Special Tribunal, that the allowance sought is for exposure to heat but fails to particularize the level of exposure — i.e. how hot, the number of minutes officers work close to the heat, how near officers get to the source of the heat. The quantum claimed is not stated and no comparative information on heat conditions at other workplaces and allowances given is supplied. The substantive issues therefore remain inadequately defined after twenty-three years. (End of Page 4)

• (v) The CPO's second Evidence and Arguments filed in 2004 after having sight of the PSA's Evidence and Arguments reiterates the earlier response and adds that the issue giving rise to the dispute no longer exists as the Mono-Casting operation was phased out in 2001.

• (vi) The CPO's oral and written submissions in favour of dismissal of the dispute inform the Special Tribunal that a comparative analysis of heat conditions and allowances paid was undertaken by the department in 1980. This study was done in order to try to address the concerns raised by the PSA. The persons involved in the study (which on the evidence was research not reduced to writing) are no longer available, so that the chances of a fair hearing would be prejudiced by lack of such information.

  The CPO's affidavit reinforces this point and adds that most of the companies analysed no longer exist, and information on methods used to collect the comparative information is no longer available on prevailing heat conditions at the Government Printery in 1981. The PSA's affidavit failed to address how this information could be obtained after 25 years.

• (vii) The PSA's affidavit falls short of justifying or even explaining the inordinate delay. It also fails to support the submission that fair trial is still possible. In this regard we note:–

  • • The affidavit fails to provide information in accordance with points one to six at page 12 of the Special Tribunal's ruling delivered on February 7, 2006.

  • • The affidavit's relevance is minimized by the fact that it is sworn to by a person who was not employed at the Government Printery in March 1981 when the PSA referred the dispute to the Court. The deponent does not claim to be in a position to speak to prevailing conditions then and he does not in the affidavit say how such information can be obtained. (End of Page 5)

  • • The deponent's job title, Printing Operator I, falls outside the scope envisioned by the CPO in 1981, thus after 25 years the CPO may be faced with a claim that addresses not only Printing operators II and IV but also all other officers at the Printery. This must be viewed against the fact that the job titles were never identified earlier on by the PSA in the 1980's.

  • • The list supplied of persons working in the Mono-Casting section does not give job titles and there is no indication as to how the PSA will establish the extent to which all these workers regardless of differing job titles were exposed to heat in 1981.

  • • The affidavit identifies two basic questions for determination of the substantive issues raised by the PSA but only addresses how the Special Tribunal can obtain evidence in relation to one of the questions. The answer to that one question — should the officers be compensated for exposure to excessive heat and if so to what extent? can according to the PSA's deponent be provided by the Research Division of the Industrial Court which has possession of all Collective Agreements registered since 1965. There is no indication as to how the Special Tribunal will be able to determine the other question posed “Were the officers exposed to excessive heat?”

  • • The deponent seeks to challenge the relevance of the CPO's argument that the absence of comparative information now renders a fair hearing less possible. The Deponent argues that the CPO raised this point as an afterthought...