Port Authority of Trinidad and Tobago v Seamen and Waterfront Workers' Trade Union

• Jurisdiction: Trinidad & Tobago
• Judge: Khan, P.
• Judgment Date: 28 October 1991
• Court: Industrial Court (Trinidad and Tobago)
• Docket Number: 51 of 1989
• Date: 28 October 1991

Industrial Court

Khan, P.

51 of 1989

Port Authority of Trinidad and Tobago

and

Seamen and Waterfront Workers' Trade Union.

Appearances

Miss Judith Jones - Attorney-at-law for party no. 1.

Mr. Elton Prescott - Attorney-at-law for party no. 2.

Industrial law - Termination of employment — Whether dismissal harsh and oppressive — Shift agreement — Worker required to work different shift — Whether breach of shift agreement — Whether unilateral alteration of prescribed shift arrangement — Worker not given adequate notice and opportunity to alter domestic arrangement to enable him to change work schedule — Whether worker's refusal to comply with work instruction justified — Finding that dismissal harsh and oppressive — Damages awarded to worker.

Khan, P.

1 The Port Authority of Trinidad and Tobago (the Authority”) dismissed Kelvin Davidson (“the worker”) from its employment by letter dated 16th March, 1988 (“the letter of dismissal”). At material times, the Authority employed the worker as an acting Junior Clerical Officer at a salary of $2517.00 per month. The Authority dismissed the worker for alleged disobedience to a lawful order.

2 The Union claims that the Authority dismissed the worker in circumstances that were harsh and oppressive and not in accordance with good industrial relations practice and seeks his reinstatement.

3 The letter of dismissal stated:

“Mr. Kelvin Davidson

Junior Clerical Officer (Ag.)

PORT AUTHORITY OF TRINIDAD AND TOBAGO

Dear Sir,

On Friday 20th November, 1987, the Manager Container Terminal, Mr. A. Beharry, issued instructions to you at 12.15 p.m., advising you that the exigencies of the work situation made it necessary that you report for work on the Monday (23.11.87) morning shift rather than the afternoon shift.

In spites of a detailed and lengthy explanation offered to you by Management, you refused to comply “with the instruction given to you by the Manager, Container Terminal.

It must be emphasised that once a properly authorised and legitimate work instruction is issued by a Supervisor, employees cannot decide to disregard such instructions. To condones such practices in the workplace, is to invites chaos and the creation of, an atmosphere that is not conducive to productive enterprise. Additionally, in your specific case there is a history of misconduct relative, to non-compliance” with authority.

This was borne out in the disciplinary hearing that was conducted on the 29th December, 1987, Manager, Port Operations where through your union, you still pleaded not guilty: you claimed that you did not refuse to obey any instructions.

We are of the view that given your previous history of misconduct, and this latest example the Authority is left with no alternative, but to terminate your services with effect from Monday 21st March, 1988.

Yours faithfully

(Sgn)

Personnel Manager

cc: General Secretary - S.W.W.T.U”

THE PRIMARY FACTS FOUND BY THE COURT:

4 The facts material to the dismissal of the worker may be summarised as, follows:

• (a) On 23rd November, 1987, Mr. Clyde Alexis Shed Manager, made a report (“the report”) to the Acting Manager container Operations, Mr. S. Beharry, and requested that he cause disciplinary proceedings to be taken against the worker for allegedly refusing to obey lawful instructions.

5 The full text of Mr. Alexis' report is given below:

“Ag. Manager Container Ops.

Port Authority

Sir,

On Friday last, around 12.15 p.m., Mr. K. Davisdon, Junior Clerical Officer was informed by Mr. A. Ali that he was required to report for duty at 7.00 a.m. from Monday 23rd to Friday 27th instant.

Mr. Davidson objected to this, pointing out that he had already worked one week day-time shift and should not be made to work two weeks straight.

I immediately enquired of Mr. Ali the reason for such a request. I was satisfied with his explanation that it was necessary at some stages for a Junior Clerk to work two weeks straight. In fact, to date, three (3) Junior Clerical Officers in the person of Mr. Harnandez F. Taitt and A. Davis have done just this in the past.

I then formally instructed Mr. Davidson to report for duty on Monday 23rd at 7.00 a.m. He, on the other hand, insisted that he will be reporting instead from 1.00 p.m. to work the night shift. I warned him that I shall be taking a very serious view of his blunt refusal.

You will recall Sir, that sometime around 3.00 p.m. you summoned me to your office to discuss this very matter. Obviously Mr. Davidson who was present had already reported the incident to you. You will also recall sir, that after lengthy discussions on the matter, you finally agreed with my decision, and promptly proceeded to instruct Mr. Davidson to report for duty on Monday morning. Again, you will recall that Mr. Davidson retorted, in the presence of Messrs. W. Clouden, A. Ali and W. John, “I told Mr. Alexis' and I'm telling you, Mr. Beharry, in the presence of Clouden my Shop Steward, I'm not coming out on mornings next week.”

He obviously made good his threat when he reported this afternoon at 3.40 p.m. and almost provokingly shouted “Gentlemen I'm here”

In other words, Mr. Davidson, a Junior Clerk contemptuously flouted the instructions of both the Shed Manager and the Manager Containers, and proceeded to decide for himself what should be his working hours on the Port.

I can neither condone nor accept such impudence. I am therefore requesting that you causes disciplinary proceedings to be instituted against Mr. Davidson.

Yours respectfully,

(Sgn)Clyde N. Alexis,

Shed Manager”

• (b) On the 27th November, 1987 Beharry referred, Alexis' complaint to the Assistant General Manager (Operation for “disciplinary action.”

• (c) On the dame day, 27th November, 1987, the Assistant General Manager (Operations), Mr. Ferdie Ferreira, addressed the undermentioned letter to the worker.

“27th November, 1987

Mr. K. Davidson,

Actg. Junior Clerical Officer,

CONTAINER TERMINAL

Dear Sir,

DISCIPLINARY INQUIRY

It has been reported try me that on Friday 20th November 1987, you refused to obey instructions from your Superior Officer.

In view of the above, you are hereby given notice, that disciplinary action ‘is now taken against you and therefore you arc requested to answer the following charges preferred against you at a disciplinary inquiry to be held at the Office of the Asst. General Manager (Operations) on Monday 30th November, 1987 at 12. 00. p.m.

NATURE OF CHARGE -Misconduct

I am to inform you that under the terms of the industrial Agreement between the Port Authority and the Seamen and Waterfront Workers' Trades Union, you are, entitled to Union representation at this disciplinary inquiry.

Please make the necessary arrangements to have Union representation as indicated.

Please sign and return one (1) copy.

Yours faithfully,

(Sgn) F. Ferreira

Asst. General Manager (Operations)”

• (d) On 30th November, 1987 Ferreira commenced an investigation into the complaint by Alexis.

• (e) On 4th December, 1987, the Union wrote to the Assistant General Manager (Administration) objection to Ferreira hearing any disciplinary matters involving the worker on the ground that Ferreira had “openly stated in the presence of officers of the Branch that he will do anything to see (the worker) is dismissed from the Port and he will not rest until (the worker) is dismissed from the Port industry.” The full text of the Union's letter was as follows:

“Asst. General Manager (Administration)

Port Authority of Trinidad and Tobago

Wrightson Road

Port of Spain

Dear Sir,

The Port Authority Junior Staff Branch will likes to places on record our, objection to. Mr. Ferreira hearing any disciplinary matters involving Mr. K. Davidson.

Mr. Ferreira has openly stated in the presence of officers of the Branch that he will do anything to see, that, Mr. Davidson is dismissed from the Port Industry and he will not rest until Mr. Davidson is dismissed from the Port Industry.

The Branch views the statement of Mr. Ferreira as highly irresponsible, unethical and inimical to the best interest of Brother Davidson.

As a result of the above, the Branch is requesting the, withdrawal of Mr. Ferreira from the disciplinary inquiry re 27th November, 1987 and any future matters involving Mr. Davidson.

Yours faithfully,

(Sgn.) K. Greenidge Chairman

(Sgn.) M. Annisette

(Secretary)

cc: Secretary General, S & W. W. T.U.

Chairman P.A.

Asst. General Mgr. Operations

Personnel Manage

Ministry of Labour

Ministry of Works”

• (f) Notwithstanding the Union's objection, Ferreira proceeded with the investigation which was completed on or about 2nd December, 1987. Thereafter, Ferreira submitted his written recommendation to the Personnel Manager of the Port that the worker be dismissed from the Port's employment.

• (g) On 5th January, 1988 the Assistant Personnel Manager submitted Ferreira's report and recommendation to Mr. Michael Barrington the Manager Equipment, and constituted a committee with Barrington as head “to consider and decide the matter finally”. This committee was constituted in accordance with Article 32(a) of the Collective Agreement between the Port and the Union and the other members of the Committee were Mr. C. Mendez, Port Engineer, and Mr. D. Robinson, Acting Marine Superintendent.

• (h) On 20th January, 1988, the Committee reported to the Assistant Personnel Manager in the following terms;

“January 20th, 1988

Asst. Personnel Manager,

Port Authority.

Dear Sir,

Subject: Disciplinary charges against K. Davidson - Temporary Junior Clerical Officer.

We refer to the abovementioned subject any wish to inform you that we are of the unanimous opinion that the conviction and sentence of the Manager, Port Operations (Mr. F. Ferreira) who heard the evidence and viewed the conduct of the accused during the trial should be affirmed.

The Committee is satisfied that the accused was given reasonable notice requiring him to changes his shift, and that...