Communication Workers' Union v Promanco Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Valere, C.
• Judgment Date: 06 March 1991
• Court: Industrial Court (Trinidad and Tobago)
• Docket Number: 39 of 1989
• Date: 06 March 1991

Industrial Court

Valere, C.; Elcock, M.

39 of 1989

Communication Workers' Union

and

Promanco Ltd.

Appearances:

Mr. Keith Logan, Labour Relations Officer for party no. 1.

Mrs. Indira Singh Administrative Manager for party no. 2

Industrial law - Contract of service — Termination — Whether worker voluntarily terminated service — Matter of evidence — Worker requiring medical surgery — Whether agreement between parties to hold job open for indefinite period — Finding that worker voluntarily resigned — Dispute dismissed.

Valere, C.

1 Ahamad Hosein (“the Worker”) was first employed by Promanco Limited (“the Company”) as a driver/messenger on 4th July, 1977 and remained so employed until his separation from the Company in the year 1986. The precise date of his separation is one of the issues in dispute.

2 In the year 1982 the worker was diagnosed as suffering from a congenital heart ailment and was advised by his doctor that he should have it corrected by a surgical operation. In the early part of August 1986 he underwent the recommended surgery at a hospital in Venezuela, and returned to Trinidad on or about the 18th August, 1986.

3 On 18th December, 1986 the worker reported for duty and presented the Company with a medical certificate dated 17th December, 1986 which stated that he was fit to resume work. The Company rejected the certificate and did not allow him to resume work, as a result of which the Communication Workers' Uni. (“the Union”) representing the Worker pursuant to section 51(1)(c) of the Industrial Relations Act has brought this dispute before this Court. The Union alleges that the Worker was dismissed from his employment from 18th December, 1986 and that this dismissal was harsh and contrary to good industrial relations practices.

4 For its part, the Company is contending that the worker's employment was terminated from 31st July, 1986 by mutual consent, after the Company had rendered him a good deal of assistance to enable him to employ himself as a taxi-driver after his then forthcoming operation.

5 The Union in its written evidence and arguments stated that the worker by letter dated 31st July, 1986 had informed the Company of his need for an EMERGENCY operation in Venezuela (emphasis added), and the worker in his oral testimony described this letter as an application for sick leave. The contents of this letter which are of crucial importance in this case are set out later in this judgment.

6 According to the worker's awn evidence, his relationship with the Company throughout the period of his employment had been “very, very good…. no problems at all.” He also testified that in or about the month of January 1986 the Company had offered to sell him one of its vehicles for $4,000.00 but had finally sold it to him for $2,500.00 of which $1,500.00 was paid in cash at that time, with the balance of $1,000.00 to be deducted from his vacation leave entitlements. He claimed however, that the vehicle had been out of order at the time and the Company had put it up for sale. Furthermore he denied that he had resigned from his job and that there had been any agreement with the Company that he would use the said vehicle for self-employment as a taxi-driver after his anticipated surgical operation.

7 He further testified that he had visited the Company on many occasions after his return to Trinidad in August 1986, and had met with his co-workers, but beyond this he could not remember any details of what had transpired during these visits. He could hardly remember the names of any of the co-workers he had spoken to, and in particular he had no recollection of ever having seen or spoken to the Administrative Manager Mrs. Indira Singh, although he admitted that he had worked closely with her on a day to day basis before his last working day in July 1986.

8 Under cross-examination, the Worker, while maintaining that his surgery in August 1986 had been an emergency operation, admitted that the date had in fact only been determined after he had accumulated the necessary funds to pay for it; and also that his doctor had advised him that the surgery could have been delayed up to but not beyond his 40th birthday which he testified to be 7th June, 1991.

9 The Company called three witnesses who supported their contention that the worker had resigned by mutual consent with effect from 31st July, 1989. Documentary evidence was submitted by one witness Mrs. Indira Singh to show that the vehicle...