Oilfields Workers' Trade Union v Trinidad Aggregate Products Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Mahabir, M.
• Judgment Date: 19 November 2001
• Court: Industrial Relations Court (Trinidad and Tobago)
• Docket Number: Trade Dispute No. 134 of 2000
• Date: 19 November 2001

Industrial Court

Elcock, C.; Mahabir, M.; Lai, M.

Trade Dispute No. 134 of 2000

Oilfields Workers' Trade Union

and

Trinidad Aggregate Products Limited

Appearances:

Messrs Ryan Charles and John Boisselle Labour Relations Officers for Party No. 1.

Mr. Gideon Harris Industrial Relations Consultant for Party No. 2.

Industrial law - Contract of service — Termination — Poor attendance at work — Patterned leave taking — Whether dismissal was justified.

Mahabir, M.

1 This dispute concerns the termination of services of Mr. Jefferson Heraldo [“the Worker”] by Trinidad Aggregate Products Limited [“the Company] on November 16, 1999 for poor attendance at work in conjunction with patterned leave taking. The Oilfields Workers' Trade Union [“the Union”] seeks annulment of the dismissal with re-instatement.

2 The Worker joined the Company on October 17, 1987 on a casual basis and was confirmed in, the post of Block Discharger on January 07, 1991. At the time of his dismissal, he was in receipt of a weekly wage of $602.00 and was rostered to work any five in seven days, Monday to Sunday inclusive.

3 The decision of the Company to which the dispute is addressed is set out in the notice of dismissal dated November 16, 1999, which reads as follows:

“1999 November 16

Mr. Jefferson Heraldo

Chickland Village

Upper Carapichaima

FREEPORT.

Dear Mr. Heraldo

RE: LETTER OF TERMINATION

This is to confirm our discussion held on Monday 99 11.15 in the presence of

Union Secretary - Mr. B. Harricharan Union Shop Steward - Mr. H. Ramjohn

Works Manager - Mr. H. Ramdath Technical Sup't -Mr. R. Mylan

Production Sup't - Mr. C. Dharamdass

You may no doubt recall that during our meeting held on 1999 August 16, prior to your suspension for poor attendance, it was indicated to you that your high levels of absenteeism had a definite pattern. During the period October 1998 to August 1999 you recorded thirty [30] days, with seventeen [17] spells of absence either before or after your off-days.

Our disciplinary suspension without pay in August ‘99 seems to have had no corrective effect, for you repeated your pattern of absence in the months of October and November ‘99 where your spells of absence came after your off days.

This pattern of; non-attendance in addition to your high rate of absence – twenty-nine [29] days during the period January to November 1999 09 03 disrupts the company's operations and is contrary to company policy. This is totally unacceptable.

In view of the circumstances described above, we are left with no alternative but to terminate your employment with the company effective Tuesday ‘99 November 16.

We wish you alt the best in your future endeavours.

Yours sincerely

TRINIDAD AGGREGATE PRODUCTS LIMITED

/Sgd: / H. RAMDATH

WORKS MANAGER”

4 The position of the Company, therefore, is that by November 16, 1999, the Worker's attendance record was such that the level of absence in conjunction with patterned leave taking was unacceptable. The Company refers to the following corrective measures, none of which resulted in improvement of the Worker's attendance record. These were -

• • Letter of Advice dated July 03, 1998 8 days absences [all certified sick leave] for the period 98.04.01 to 98.06.30.

• • Letter of Advice [undated] 6 days absences [2 certified sick leave and 4 unpaid absences] for the period 98.10.25 to 98.11.01.

• • Letter of Warning dated March 05, 1999 11 days absences [all certified sick] for the period January and February 1999.

• • Letter of Suspension dated August 18, 1999 8 days absences [4 unpaid absences and 4 certified sick leave] for the period 99.07.01 to 99.08115.

5 It should be noted that the collective agreement provides for 15 days sick leave per annum comprising 9 working days of certified sick leave and 6 working days of uncertified sick leave. There is also provision for 6 working days casual leave. In totality, for 1998 and 1999, the Worker was absent from work for 22 and 31 days respectively.

6 The Company also supplied particulars with respect to the Worker's engagement in patterned leave taking as reflected hereunder. Patterned leave taking or patterned absenteeism is understood as being absent from work immediately before or after his off days.

TRINIDAD AGGREGATE PRODUCTS LIMITED

DETAILS OF J. HERALDO'S ATTENDANCE

[1998 OCTOBER -1999 NOVEMBER 09]

Year	Month	Date of Leave	Reason	Off Days
	October	23 31	Absent Absent	21, 22 29, 30
1998	November	26 01	Absent	22, 23, 24, 25 29, 30
	December	27 28	Sick Sick	25 26
		01	Sick	02, 03, 04
	January	13, 14, 15	Sick	10, 11, 12
		21, 22	Sick	19, 20
	February	17, 18 23, 24	Sick Sick	12, 13 20, 21, 22
	March	27	Sick	25, 26
	April	13, 14, 15	Sick	10, 11, 12
1999	May	15, 16	Sick	13, 14
	June	-	-	-
		03	Absent	01, 02
	July	11, 12	Absent	09, 10
		21 28, 29	Absent Sick	17, 18, 19 26, 27
	August	05 13	Absent Absent	03, 04 11, 12
	September	-	-	-
	October	26, 27, 28, 29	Sick	23, 24, 25
	November	03	Absent	01, 02

7 This evidence was not controverted by the Union. According to the Company, this high rate of absenteeism in conjunction with the pattern highlighted in the table disrupted its operations. Mr. A. Ramjohn, Technical Supervisor, testified that the Worker's absences placed additional stress on other employees, as well as additional costs upon the Company, since the Company was forced to call out replacement workers who were off duty and had to pay them premium rates as enshrined in the registered collective agreement.

8 Thus from the Company's perspective, when the Worker persisted in absenting himself from work for 35 days during the period October 1998 to November 09, 1999 with 19 spells of absences either before or after his off days, it was justified in terminating his employment.

9 The Worker does not take issue with his attendance record. He testified that all of the absences and instances of patterned leave taking immediately before or after his off days were justified. It was the Worker's testimony that he was sick and incapable of working his usual daylight shift on each and every day claimed and that he never had any intentions to extend his weekends or fill in the gaps between his usual days off. He also cited domestic difficulties...