North Central Regional Health Authority v National Union of Government and Federated Workers
| Jurisdiction | Trinidad & Tobago |
| Judge | A. Mendonça J.A. |
| Judgment Date | 25 May 2021 |
| Neutral Citation | TT 2021 CA 19 |
| Docket Number | Civil Appeal No. P405 of 2019 |
| Court | Court of Appeal (Trinidad and Tobago) |
IN THE COURT OF APPEAL
A. Mendonça J.A.
V. Kokaram J.A.
M. Wilson J.A.
Civil Appeal No. P405 of 2019
Application No. GSD – A009/2019
In the Matter of the Industrial Relations Act Chap 88:01
and
In the Matter of the Regional Health Authorities Act 1994 Regional Health Authorities (Conduct) Regulations 2008
Mr. K. Wright appeared on behalf of the Appellant
Ms. M. King appeared on behalf of the Respondent
Delivered by A. Mendonça J.A.
On April 26, 2021 we allowed this appeal and remitted the matter to the Industrial Court. We now reduce to writing our reasons for so doing.
This is an appeal from the Industrial Court. The issues raised by the appeal are whether the Industrial Court acted properly, both in terms of the power it had, and if it had the power, whether it exercised it properly, in ordering the reinstatement of the worker's allowances pending the disciplinary proceedings that were brought against her by her employer, the Appellant, the North Central Regional Health Authority.
The worker, Coreen Isaac, is an employee of the Appellant and has been so for several years. By letter dated August 30, 2018 the worker was notified that she was placed on administrative leave pending an investigation into allegations of misconduct against her. While on administrative leave, the worker was paid her salary and allowances. In short, she was in receipt of her full pay.
By letter dated October 11, 2018 the Respondent, the National Union of Government and Federated Workers (hereinafter referred to as the Union), reported the existence of a trade dispute to the Minister. The Union in its letter stated that the dispute emanated over the harsh, oppressive and unfair placement of the worker on administrative leave.
Following the failure by the Appellant to attend a conciliation meeting on November 22, 2018, the trade dispute was referred to the Industrial Court. The certificate of unresolved dispute identified the dispute in the following terms:
“By letter dated October 11, 2018, the Union reported a trade dispute over, the harsh, oppressive and unfair placement of Coreen Isaac on Administrative Leave on September 03, 2018.”
On February 14, 2019 the worker received a letter from the Appellant stating that she had been charged with acts of misconduct. The charges were outlined in the letter. The letter further stated that if the worker denied the charges a tribunal would be appointed to hear evidence and determine the matter. The worker by email dated February 18, 2019 denied all charges.
By letter dated February 22, 2019 the Appellant notified the worker that pursuant to regulation 28(1) of the Regional Health Authorities (Conduct) Regulations (hereinafter referred to as the “Conduct Regulations”) the Board had decided that the public interest required that the worker should forthwith cease to perform the functions of her office pending the determination of the disciplinary charges against the worker. The letter further stated that pursuant to regulation 28(3) of the Conduct Regulations the worker would receive only her basic salary pending the determination of the matter. In other words, she was not to be paid her allowances.
On November 1, 2019 the Union made an ex parte application to the Industrial Court for certain relief including an injunction restraining the Appellant from proceeding with the disciplinary proceedings against the worker pending the outcome of the trade dispute. I will refer below to the relief sought by the application and the orders made by the Industrial Court.
The application was heard inter partes. The Industrial Court, at the end of the day, made the following orders in relation to the following relief the Union applied for by the application:
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(1) The Union sought an injunction restraining the Appellant from proceeding with the disciplinary proceedings which were set for hearing on November 13, 2019. That order was refused by the Court.
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(2) The Union further sought a declaration that the worker is entitled to remain and/or continue in her employment in accordance with its terms. That also was refused.
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(3) The Union also sought an order that the worker be permitted to attend work and perform her duties pending the outcome of the trade dispute. That too was refused.
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(4) What the Industrial Court went on to order, which relief the Union also applied for by the application, is that all deductions from the salary and allowances of the worker be restored with immediate effect. It is that order with which this appeal is concerned.
The removal of the allowances from the worker pending the disciplinary proceedings was authorised by regulation 28(3) of the Conduct Regulations, which, inter alia, govern the conduct of the disciplinary proceedings and matters incidental thereto. Regulation 28(3) provides that:
“An employee who has been prohibited under sub regulation (1) [which gives the Board of the Appellant the discretion to prohibit the employee from performing the functions of her office pending the determination of the disciplinary proceedings] shall receive his basic salary in his substantive position until the determination of the matter.”
That regulation therefore authorises the non-payment to a worker of his allowances pending the determination of disciplinary proceedings brought against him in circumstances where the Board has decided that the worker should be prohibited from performing the functions of his office pending the determination of the disciplinary proceedings. The non-payment of allowances to a worker, therefore, follows automatically upon the invocation by the Board of regulation 28(1) of the Conduct Regulations in relation to the worker. It is further noted that pursuant to regulation 28(4) of the Conduct Regulations those allowances can be paid to the worker if she is exonerated at the disciplinary proceedings or she can receive such salary as the Board may determine if the result of those proceedings is a punishment other than dismissal.
The Industrial Court in coming to its decision that the allowances should be restored did so without specific reference to section 10(3) of the Industrial Relations Act, which we will come to shortly. But it seems to have done so on the following basis and in pursuance of that section. The worker had been prohibited from performing her functions under regulation 28(1) in February 2019. However, by the time the matter had come before the Industrial Court in November 2019, the hearing of the disciplinary proceedings were yet to begin. The Court found that delay to be inordinate. At the hearing of the Union's application, the Industrial Court interrogated counsel appearing for the Appellant as to the reasons for the delay. The Court was not impressed by the explanation and said (at paragraph 11 of its ruling) that “the [Appellant] has a duty to convene an investigative or disciplinary hearing into the conduct of a worker with alacrity, to do otherwise will result in a breach of the principles and practice of good industrial relations.” At paragraphs 12–15 of its ruling, the Court further stated:
“12. We find that the inordinate delay by the [Appellant] to convene a panel to hear the allegations made against the Worker to be harsh, oppressive and contrary to the principles and practice of good industrial relations. The delay to have a hearing and to bring the disciplinary process to an end, is tantamount to a punitive measure in circumstances where there are no findings of wrongdoing against the Worker.
13. We further find, that it is harsh and oppressive and not in accord with the principles of good industrial relations, to remove the Worker's allowances while she is awaiting a hearing to determine whether or not she is guilty of any wrongdoing, especially in circumstances, where no date has been fixed for a final determination of the charges in the foreseeable future…
14. It is the ruling of this Court that it is unjust, unfair and contrary to the principles of equity, good conscience and the principles and practice of good industrial relations, for the Worker who has not been found guilty of any workplace infractions, to be subjected to a very prolonged period of disciplinary leave and to be deprived of the allowances which form part of her monthly benefits.
15. We further rule that the suspension of the Worker's allowances are contrary to the principles and practice of good industrial relations and to the provisions of Section 10 of the Industrial Relations Act.”
The gist of the Court's decision seems to us to be that it was contrary to the principles and practice of good industrial relations to withhold payment of the worker's allowances in circumstances where the worker was not found guilty of any disciplinary charge and where there was an inordinate delay in the determination of the disciplinary proceedings. It was fair and just in those circumstances for the allowances to be restored. The questions before us are did the Industrial Court have the power to make such an order, and if so, did it...
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