Hing et Al v Sugar Industry Labour Welfare Committee
| Jurisdiction | Trinidad & Tobago |
| Judge | Margaret Y Mohammed |
| Judgment Date | 05 May 2017 |
| Neutral Citation | TT 2017 HC 145 |
| Docket Number | CV 2014-02908 |
| Court | High Court (Trinidad and Tobago) |
| Date | 05 May 2017 |
IN THE HIGH COURT OF JUSTICE
The Honourable Madam Justice Margaret Y Mohammed
CV 2014-02908
Mr. Rajiv Persad and Mr. Kiel Taklalsingh Attorneys at law for the Claimants.
Mr. Russell Martineau S.C., Mr. Rishi Dass and Ms. Alisa Khan Attorneys at law for Defendant.
Employment Law - Whether the claimants' work stoppage complied with section 15 of the Occupational Health and Safety Act — Whether the claimants should have been paid for the period of the work stoppage.
The Defendant is a Statutory Authority established and incorporated by the Sugar Industry Labour Welfare Committee Act 1 and the Claimants are its employees.
The instant action concerns an admitted work stoppage by the Claimants during the period 10:30 am on 24 th June 2014 to 1 st September 2014 (one day less from 25 th June 2014 in respect of three Claimants Stephen George, Kent Collins and David Ramkissoon) 2 (“the work stoppage”) on the alleged basis that the working conditions at the Defendant's premises situated at the Corner Dove and Balisier Avenues Couva (“the premises”) were unsafe and unhealthy. At the time of the work stoppage, the Claimants representative trade union, the Public Services Association (“the PSA”) had instigated protest action in the form of work stoppages at other government offices on similar grounds. 3
It was not in dispute that during the work stoppage the Claimants attended the premises and signed “OSHA 15” in the attendance register and then left the premises which they believed was unsafe and unhealthy and that they were not paid wages for the said period. In the instant action the Claimants have asserted that they are entitled to be so paid. In response, the Defendant has asserted that the Claimants are only entitled to be paid for work they have performed, and has counterclaimed for wages paid in respect of days when the Claimants did not work.
On 8 th August 2014 the Claimants applied for interim relief including, inter alia, an order for payment of salaries and /or allowances due for the month of July 2014 and for payment to be reinstated by the Defendant but the request for interim relief was refused by the Court.
At the trial the Claimants' witnesses were Ms Cheryl Ann Lai Hing, Mr Kent Collins, Ms Charlene Paula Flemming, Ms Evangelene Bhagan, Mr Stephen George and Mr David Ramkissoon. The Defendant's witnesses were the former Secretary/ Executive Officer of the Defendant Mr Carlton Mustafa, Mr Peter Celestine and Kozell John. The Defendant also issued a witness summons for Ms Reshma Ramnarine-Ramoutar one of the Claimants who attended and gave evidence.
The issues to be determined are:
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(a) Did the work Claimants' work stoppage comply with section 15 of the Occupational Safety and Health Act4 (“the OSH Act”)?
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(b) Should the Claimants be paid for the period of the work stoppage?
The Claimants pleaded that the premises consisted of a dilapidated building; it was in existence for over 25 years; it fell into a state of disrepair; and it was inimical to a healthy and safe work environment. The Claimants pleaded actual health and safety risks. The particulars of health and safety risks which the Claimants pleaded were:
“a. Inadequate and substandard ventilation which prevents the circulation of fresh air within the subject premises.
b. The presence of excessive dust, mould and fungus throughout the subject premises, the dangers of which are exacerbated by inadequate ventilation.
c. An unabated infestation of cockroaches, rats and other vermin throughout the subject premises.
d. Inadequate toilet facilities within the subject premises which were not consistently supplied with water for the flushing of toilets and the washing of hands.
e. A deficiency of supply of water generally to the subject premises.
f. Lack of approvals and/or certification for electrical installations within the subject premises.
g. Exposed and/or unsecured electrical wiring and outlets which constitute a fire hazard.
h. Absence of a working fire extinguisher, fire alarm system and no demarcated fire escape routes. Further, the subject premises have not received the requisite certification from the Trinidad and Tobago Fire Service.
i. Congested office and corridors which present a risk and a resulting difficulty to pass through freely.
j. Unsafe and unsecured stairways which are prone to and have caused slippage upon usage.” 5
The Claimants alleged that the Defendant's failure to treat with the aforesaid
health and safety concerns was a breach of its implied contractual duty to provide a safe and healthy work environment to them and/or a breach of its statutory duty pursuant to the OSH Act. They averred that since 2004 the employees of the Defendant have identified and brought the aforesaid concerns to the Defendant's attention through verbal and written complaints. In particular, during the period January — June 2014, the Claimants raised the aforementioned health and safety concerns to the Defendant's executive management. On or about the 24 th of June, 2014 the Claimants averred that they reported for work, but they were unable to function within the premises due to certain health and safety concerns. They then did the following:-
i. Attempted to initiate a meeting with Mr. Carlton Mustapha, Executive Officer of the Defendant, but he refused to meet and remained uncooperative;
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ii. Reported the then complaints to the President of the PSA and sought advice as to how they should treat with these concerns. The Claimants' attention was drawn to the provisions of the OSH Act and in particular, Section 15, which provides a process by which the workers could ventilate their concerns.
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iii. Thereafter, the Claimants individually signed on their attendance ledger “OSHA 15” exited the building and assembled in the carpark of the premises.
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iv. The PSA Representative, Ms. Bisram, attended the premises the following day, on the 25 th June 2014 to further discuss the Claimants' various health concerns with Mr. Mustapha who refused to compromise or facilitate any new arrangements to rectify the said safety concerns.
During the work stoppage, the Claimants averred that they maintained the practice of attending the premises on working days, signing on their attendance ledger “OSHA 15” thereafter they exited the building and remained in the carpark. The Claimants averred that during the said period they were desirous of carrying out their respective duties and functions in accordance with the scope of their employment.
Subsequent to the invocation of the “OSHA 15,” the Inspector under the OSH Act furnished a report (“the OSHA report”) to the Defendant with respect to the health and safety issues raised by the Claimants. Subsequent to the receipt of the OSHA report by the Defendant, it commenced extensive remedial works throughout the premises. In particular from mid-August to September 2014 the Defendant:
“I. Replaced dilapidated plumbing fixtures and conducted other work on the water systems thereby improving the supply of water to the subject premises.
II. Replaced several electrical apparatuses and commenced rewiring work throughout the subject premises.
III. Removed and replaced certain pieces of furniture within the subject premises;
IV. Repainted the exterior of the subject premises;
V. Cleaned certain areas of the interior of the subject premises and replaced select interior partitions;
VI. Installed air condition units in select areas of the subject premises;
VII. Installed rubber tiles and non-skid strips on the stair cases to prevent slippage” 6.
The Claimants resumed their employment duties on or around the 2 nd September 2014 upon becoming aware of the aforesaid improvements.
The Defendant Defence was three fold. It asserted that the work stoppage was instigated by the President of the PSA to garner support for the PSA which was at the material time attempting to close down many government buildings on perceived health and safety issues and that while the building on the premises was not the best it denied that the premises were in a dilapidated condition at the time of the work stoppage.
It asserted that the building comprised of two concrete structures which were initially designed as housing accommodation and which were renovated to accommodate the Defendant's head office around 1986–1987. The two concrete structures are inter-connected and each concrete structure formerly housed two sets of apartments. It averred that prior to June 2014 there were several works done in relation to the premises.
In this regard, the Defendant also provided a table of five (5) pages setting out the details of the work done during the period 2009 to April 2014 with supporting invoices. In May 2011 the Defendant requested the Chief Fire Officer to conduct a fire drill; shampooing of the office carpets, stripping, sealing and polishing of tiles were done at least on five (5) occasions between May 2011 to...
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