Point Lisas Industrial Corporation Ltd v Steel Workers' Union of Trinidad and Tobago

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Kangaloo, J.A.
• Judgment Date: 14 January 2011
• Neutral Citation: TT 2011 CA 1
• Docket Number: CA No. 123 of 2009; APP No. 1 of 2009; TD No. 243 of 2008
• Date: 14 January 2011

Court of Appeal

Kangaloo, J.A.; Mendonca, J.A.; Jamadar, J.A.

CA No. 123 of 2009; APP No. 1 of 2009; TD No. 243 of 2008

Point Lisas Industrial Corporation Limited

and

Steel Workers' Union of Trinidad and Tobago

Appearances:

Mr. S.R. Martineau S.C., Mr. A. Khan, Ms. S. Persaud for appellant.

Mr. S. Jairam S.C., Mr. R. Dass, Ms. Jairam for respondent

Employment Law - Termination of Services — Worker dismissed from employment — Union reported a trade dispute — Matter referred to Industrial Court — Consent Order entered — Whether order fell within bargaining unit — Whether union had locus standi to report trade dispute on behalf of a worker.

I have read the judgment of Kangaloo, J.A. and agree with it.

A. Mendonca Justice of Appeal

I, too, have read the judgment of Kangaloo, J.A. and agree with it.

P. Jamadar Justice of Appeal

1 Kangaloo, J.A. The pivotal issue in this appeal is a question of locus, namely whether the respondent union can report a trade dispute on behalf of Mrs. Merle Inniss-Demas (the worker), the former Vice President, Estate and Legal- of the appellant Company, Point Lisas Industrial Development Corporation Limited (PLIPDECO), whose services were terminated by the Company on 3nj September 2008. In dealing with this issue it must be determined whether the worker is within the bargaining unit described in Certificate of Recognition No. 53/83 issued by the Recognition, Registration and Certification Board (RRCB) on 12th December 1983, which certified the Seamen and Waterfront Workers Trade Union (SWWTU) as the recognised majority union (RMU) representing monthly paid employees of the appellant Company. If she is not, and is a member in good standing with the respondent union, the Steel Workers’ Union of Trinidad and Tobago (SWUTT), this union would have standing to report a trade dispute on her behalf. However if she is within the bargaining unit, then the SWWTU alone would have locus, subject to an estoppel issue which will be explored later.

Factual Background

2 This issue has arisen against the following factual context, the details of which are not in dispute: The worker was first employed by the Company on 20th January 1997 as the Chief Financial Officer. She was subsequently appointed to the position of Vice President, Estate and Legal, effective 11 February 2008. By letter dated 3'd September 2008 her employment was terminated by the Company. The respondent union wrote to the Minister of Labour, Small and Micro Enterprises on 10th September 2008, reporting the termination of the worker's services, as a trade dispute pursuant to section 51(1)(c) of the Industrial Relations Act Chap 88:01 (the Act). No response was forthcoming from the Minister. On 25th September 2008 the respondent union moved the Industrial Court for an ex parte injunction restraining the Company from, inter alia, acting upon the letter of dismissal of the worker. This application was successful and the injunction was granted on the same day by order of His Honour Gregory Baker with a return date of 30th September 2008. One day later, on 26th September 2008, the respondent union applied to the Industrial Court for its determination of the trade dispute, citing the failure of the Minister to either respond to or acknowledge their earlier letter reporting the dispute to him.

3 The Company then wrote to the Minister on 29th September 2008, one day before the parties were scheduled to appear in the Industrial Court, pointing out three allegedly fatal flaws to the purported report of the respondent union namely: (1) that the worker is not a member in good standing with the SWUTT, (2) that the worker is not a worker within the meaning of the Act and (3) that the SWWTU is the RMU for all monthly paid workers in the Company's employ. In a move that could only be described as remarkable, the Company, despite the objections raised with the Minister, entered into a consent order with the respondent union before the Industrial Court on 30th September 2008 agreeing in effect to continue the ex parte injunction, that the post of Vice President, Estate and Legal would remain vacant pending the determination of the dispute, that the Company would continue to pay the worker her monthly salary and allowances, that the Company would not prevent the worker from accessing the Company's medical plan and that the worker would not report to work until the dispute was resolved by the Court. In the consent order it is to be noted that, unusually, no undertaking with respect to damages was given by the respondent union.

4 On 2nd October 2008 the Minister finally acknowledged receipt of the respondent union's letter of 10th September 2008 and requested that it provide further information in writing by 17th October 2008, detailing what steps had been taken to settle the dispute either in accordance with the collective agreement or otherwise. The Minister again wrote to the respondent union on 18th November 2008 drawing to its attention the objections raised by the Company in its letter of 29th September 2008 and in particular that the SWWTU was the RMU representing monthly paid employees of PLIPDECO. The respondent union never responded to either of these letters. Then the Company wrote to the Minister on 5th January 2009 inquiring whether the respondent union had responded to the Minister's correspondence. On 6th January 2009, the Minister informed the Company by letter that he had received no response from the respondent union and as such the matter involving the worker's termination of employment had not been acknowledged by the Minister as a proper report of a trade dispute in keeping with section 51(1) of the Act.

5 The Company then filed two Applications on the 12th January 2009 with the Industrial Court, one wherein it sought to set aside the consent order of 30th September on the basis that it was based on a mutual mistake of law and the other seeking the dismissal of the respondent union's application of 26th September based on the fact there was no proper report of a trade dispute to the Minister (Application 1 of 2009). These applications were heard before His Honour who, in his judgment delivered on 1st May 2009, ruled in favour of the respondent union. The learned judge dismissed the application to rescind the consent order, holding that the Company was labouring under no mistake of law or fact as to the capacity of the respondent union to represent the worker when it entered into the order. The learned judge was of the view that it was clear from its letter of 29th September to the Minister that the Company was alleging that the worker was not a member of the respondent union. Nonetheless it entered into the consent order one day later on the return date of the ex-parte injunction. It was not mistaken as to the union's capacity and it must abide by the consequences of its actions. The learned judge also refused to make an order dismissing the union's claim but instead referred the issue, as to whether the worker fell within the bargaining unit contained in Certificate of Recognition No 53/83, to the RRCB for its determination in accordance with section 39 of the Act. The learned judge's ruling in this regard, he said, was based on the Court of Appeal's decision of The Registration, Recognition and Certification Board and Bank Employees Union v. Republic Bank, Civ. App. No 183 and 184 of 1994 which he interpreted as deciding that the issue of whether the worker was within the bargaining unit could only be decided by the RRCB and not by any Court of law.

6 The Company appealed the entire decision of His Honour by notice of appeal dated 28th May 2009. It submits that the question of whether the worker fell within the bargaining unit cannot be determined by the RRCB by means of a referral from the Industrial Court. It argues that the learned judge fell into error in making the section 39 referral as his ruling is based on a misinterpretation of the Republic Bank case. It also contends that the learned judge erred in failing to dismiss the respondent union's claim seeking the determination of the Industrial Court in a trade dispute between it and the Company. It submits that the Court lacks _jurisdiction to entertain the respondent union's application because there was no proper report of a trade dispute to the Minister. The failure of the respondent union to provide particulars as requested by the Minister was a fatal flaw in this regard as the scheme of the Act does not permit a dispute to go forward and engage the attention of the Industrial Court, where a party refuses to respond to the Minister's request for particulars. It also contends that as a result of the correspondence of the Minister of the 6th January 2009, there was no proper report of the trade dispute. The Company also contends that the learned judge erred in failing to set aside the consent order, as it is clear that when the order was made both parties were labouring under the common mistake that there was a valid and proper report of a trade dispute which the respondent union had the capacity to prosecute on behalf of the worker.

7 The respondent union filed a cross appeal on 15th June 2009. While it does not challenge the orders made by His Honour, it contends that the learned judge erred in his disposition of the Company's two applications. In particular it contends that the judge failed to determine the issue of whether the applications were an abuse of the process of the Court or fell foul of the principle of res judicata. It also challenges the ruling of the judge that costs are reserved pending the decision of the RRCB. It submits that in making this order the learned judge ought to have stated that it was based on exceptional circumstances, that the Company had asked for costs in its applications and that the Company and the respondent union were both represented by counsel at the...