National Union of Government and Federated Workers Union v Y. Delima and Company Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Beckles, J.
• Judgment Date: 24 May 1993
• Court: Industrial Court (Trinidad and Tobago)
• Docket Number: No. 114 of 1991
• Date: 24 May 1993

Industrial Court

Beckles, J.

No. 114 of 1991

National Union of Government and Federated Workers Union

and

Y. Delima and Company Ltd.

Mr. Ursus Cabralis, Grievance officer for Party No.1

Mr. Percy Cezair Industrial Relations Consultant for Party No. 2

Industrial law - Termination of employment — Retrenchment and Severance Benefits Act, 1985 — Claim for terminal benefits — Retirement after thirty two (32) years service — Claim for severance benefits for nine (9) years when worker re-employed by company — Worker's services finally dispensed with on ground of age — worker offered gratuity in appreciation of his service — Sum refused as being inadequate — Worker not retrenched — Worker not entitled to benefits under statute — Worker not entitled to terminal benefits — Union's claim dismissed.

Beckles, J.

1 The instant dispute centers around the claim by the National Union of Government and Federated workers (the Union) for the payment of a terminal benefit to John Holder (the worker) on his retirement from the employ of Y. De Lima and Company Limited (the Company) after serving for the period January 1948 to April 1980.

2 Additionally the Union is claiming the payment of severance benefits allegedly due to the worker for the period April 1980 to February 1989 when he was reemployed by the Company doing similar work as before.

3 The Company while not denying the periods worked as claimed nevertheless contends that in the absence of agreement collective or otherwise, it had no legal obligation to make any compensatory payment to the worker on his retirement from their employ.

4 The case concerns the question of payment of terminal benefits and in the Court's view more properly falls within the ambit of the Retrenchment and Severance Benefit Act 32/85.

5 This said Act however deems any claim for nonpayment of severance benefit to be a trade dispute, so that on any view this Court has jurisdiction to deal with the method.

6 The facts in issue were not seriously in dispute. The worker himself testified that he was employed by the Company from January 1948. In 1961 he became member of a contributory plan instituted by the Company in order to provide terminal benefits to employees. In 1973 as a result of certain policies enunciated by then Government of Trinidad and Tobago the Plan as administered, was discontinued, and after a period of uncertainty a new plan was devised to take its place. The worker declined to participate in the new arrangement which was purely voluntary.

7 In 1980 on attaining the age of 65 the worker was retired from the service of the Company in accordance with its policy which was well known to him.

8 He was then offered reemployment with the company on what purported to be a month to month basis. This latter period came to an end in February, 1989.

9 In March, 1982 the worker received the sum of $4,457.72 representing total contribution for the period 1961 - 1973 plus interest when he was a member of the Company Pension Plan (referred to as Provident Fund).

10 The Union represents the worker under the provision of section 51(1) (c) of the industrial Relations Act Ch 88:01 being other than a recognized majority union, and claims that for the period 1948 to 1980 and for the period 1980 to 1989 the worker was entitled to be paid terminal benefits in accordance with the provisions of the Retrenchment and Severance Benefit Act No. 32/85.

11 Mr. E. Medina Managing Director of the company testified on its behalf. He confirmed that the worker had been employed for the period claimed. He characterized him as a excellent worker an related that it was because of this fact that he sought to advise the worker to rejoin the Company's reestablished Pension Plan 1973 or thereabout. The worker declined to follow his advice and consequently on his retirement in 1980 was only legally entitled to a sum of some $4000.00 odd being the proceed of the joint contribution from 1961 - 1975 referred to above. In the light of this fact he had persuaded his Board of Directors to offer the worker continued employment beyond the normal age of retirement a month to month basis. In 1989 when the worker's service finally dispensed on the ground of age, the Company had offered the worker a gratuity in appreciation of his service but the worker refused the sum offered as being inadequate.

12 He was of the view that the company was under no legal obligation to pay the worker any terminal benefits by way of gratuity given the nature of his employment being on a month to month basis.

13 At the Court's invitation both parties looked at...