Oilfields Workers' Trade Union v Trinidad Cement Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Khan, P.
• Judgment Date: 02 December 1991
• Court: Industrial Court (Trinidad and Tobago)
• Docket Number: 10 of 1991
• Date: 02 December 1991

Industrial Court

Khan, P.

10 of 1991

Oilfields Workers' Trade Union

and

Trinidad Cement Ltd.

Appearances:

Mr. Paul Eugene, Labour Relations Officer for party no. 1.

No appearance for party no. 2

Industrial law - Termination of employment — Dismissal for absenteeism resulting in hardship to worker's section — Worker sustaining injury in course of employment — Worker taking sick leave — Worker having previous record of sick leave for various years — Finding that previous absence condoned by failure of company to take action against worker — Finding that dismissal on ground of absenteeism due to injury at workplace harsh and oppressive — Damages awarded to worker.

Khan, P.

1 When this trade dispute between the Oilfields Workers' Trade Union (“the Union”) and Trinidad Cement Limited (“the Company”) came up for hearing on Friday 18th October, 1991 before me, Mrs. Diana Mahabir, for the Company, applied for an adjournment on the grounds that the Company had not been served with a copy of the Union's written Evidence and Arguments herein. I ordered the Clerk of the court to serve a copy of the Union's Evidence and Arguments on Mrs. Mahabir that very afternoon and I acceded to her request for an adjournment of the hearing of the trade dispute and adjourned the hearing in the presence and hearing of both Mrs. Mahabir and Mr. Paul Eugene, the Union's representative, to Tuesday 26th November, 1991 at 2.00 p.m. having first ascertained from the that that was a convenient date for them both.

2 When the trade dispute came up for hearing before me again at the adjourned hearing on Tuesday 26th November, 1991 at 2.00 p.m. neither Mrs. Mahabir nor any representative of the Company appeared, in Court and, no reason having been received by the court for the failure of the Company to be present, I proceeded to hear and determine the trade dispute in the absence of the Company in accordance with section 11(a) of the Industrial Relations Act, Chap: 88:01 (“the Act”) which enables the court to:- “proceed to hear and determine a trade dispute in the absence of any party who has been duly summoned to appear before the court and has failed to do so.”

3 Too much time is wasted in this Court by the failure of trade unions and employers and their representatives to attend court on the days fixed for the hearing of trade disputes and the court, in my view, will be failing in the duty and obligation imposed on it by section 17 of the Act if it does not correct the tendency (which appears to me to be increasing) of parties not to turn up in court for the hearing of their cases. This is one of the principal contributing factor to the court's backlog of pending cases. In my opinion, this Court must act firmly to prevent this kind of abuse of its process.

4 Both the Company and the Union presented written Evidence and Arguments to the court pursuant to the provisions of section 8(5) of the Act which declares: “The court may require evidence or argument to be presented in writing and may decide the matters upon which it will hear oral evidence or argument.”

5 In my opinion, the issues as enumerated in writing in the Evidence and Arguments of the parties are clear and need no further elaboration.

6 Francis Caton (“the worker”) was the only witness to testify for the Union. He swore that he had been employed ay the Company from 29th November, 1982 to 3rd April, 1990. On 3rd April, 1990 the Company dismissed him by letter dated the same day.

7 The full text of the Company's letter to the worker stated:

“1990-04-03

Mr. Frankie Caton,

Carolina village,

Milton P.O.,

COUVA.

Dear Mr. Caton,

We refer to interviews with you on March 28th, March 30th, April 3rd 1990, regarding your absenteeism.

As pointed out to you, your absences have continued to be excessively high and having failed to respond to counselling, you had to be disciplined including suspension of four (4) days from 21/11/89 - 24/11/89. Since your suspension you have continued to be absent on sick leave for various periods, ‘.and have been on the job for only (2) days over the last four (4) months despite further counselling and other assistance provided to you by the Company to facilitate your return to regular work.

You will recall that the Company's doctor had referred you to two specialists and based on their diagnosis, he advised both you and the Company that there was no medical evidence to support your complaints. Although we had certain reservations about the necessity for further diagnosis, the Company, out of an abundance of caution and a desire to ensure that you had the best possible medical attention, accepted a recommendation by the Company's doctor and arranged for you to have a further examination done in Venezuela at its own cost.

You returned to Trinidad on 20/03/90, and submitted the medical report to the Company's doctor, who, after consulting with the specialist, advised both you and the Company that the result of the examination still does not support your complaints. Thereafter, you were interviewed by your Head of Department in the presence of your Union Representatives, and the Company reiterated its concerns. Despite this, you submitted another certificate from a medical practitioner recommending a further period of sick leave, clearly indicating your lack of interest in working.

You have provided no acceptable reasons or justification for your absence and no further concessions can be extended to you since your past record of attendance is also extremely poor. Your absence has been causing unnecessary hardships to the section in which you work and steps must now be taken to replace you. Accordingly, your services are hereby terminated with effect from 03/04/90, for Excessive Absenteeism.

The Company will compute and pay to you any monies due less any amounts owing to the Credit Union or to the Company.

Yours faithfully,

TRINIDAD CEMENT LIMITED

YUSUFF OMAR

Operations Manager”

8 I find the facts to be as follows:

9 At the time of...