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

• Jurisdiction: Trinidad & Tobago
• Judge: Khan, P.
• Judgment Date: 25 November 1991
• Court: Industrial Court (Trinidad and Tobago)
• Docket Number: 52 of 1988
• Date: 25 November 1991

Industrial Court

Khan, P.

52 of 1988

Seamen and Waterfront Workers' Trade Union

and

Port Authority of Trinidad and Tobago

Appearances

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

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

Industrial law - Contract of service — Termination of acting appointment due to poor attendance record — Worker reverting to casual clerk roll — Whether termination justified — Failure of Port to warn worker of possibility of disciplinary action if he did not make serious effort to improve record — Finding that termination was harsh and oppressive — Damages awarded to worker.

Khan, P.

1 In this trade disputes between the Seamen and Waterfront Workers' Trades Union (“the Union”) and the Port Authority of Trinidad and Tobago (“the Port”) the Union has alleged that Cyril Berkeley's acting appointment as a junior clerical officer ways wrongly terminated by the Port in the year 1982. The Port admitted that the worker's acting appointment had been so terminated but it relied on the worker's poor attendance record during the period 1st August 1981 to 14th July, 1982 in justification thereof.

2 It is not disputed that the worker joined the employment of the Port on 3rd September, 1971 as a casual clerk. Casual clerks were employed temporarily con a casual basis as supplementary personnel as and when required by the Port. In or about the month of November, 1977, the Port, having given the worker the required training, appointed him to act as a junior clerical officer and he so acted continuously until 4th October, 1982. The Port terminated his acting appointment by letter dated 1st October, 1982 which stated inter alia:

“…due to your unsatisfactory attendance record over the period 1st August, 1981 to date, management has decided that your acting appointment as a junior clerical officer will be terminated with effect from 4th October, 1982.

You will therefore revert to the casual clerk roll from that date.”

3 The Port alleged inter alia:

“that the employment of the worker was temporary and was conditional on and/or was subject to the review by the General. Manager of his suitability for permanent appointment to the post of junior clerical officer, that in 1982 the General Manager reviewed the performance of the worker and determined that he was not suitably for permanent appointment to the post of junior clerical officer and that therefore the worker was not appointed as a junior clerical officer and was reverted to his substantive classification' as a casual clerk toy the letter dated 1st October, 1982 (supra). Further, and/or in the alternative the worker had a poor attendance record during the period 1st August, 1981 to 14th July, 1982 and the worker was informed of this. By letter dated 11th August, 1982 the worker explained his said absences but the same was unsatisfactory.”

4 The Port appended to its written Evidence and Arguments herein a purported true story copy of the worker's attendance record which showed that in the period 1st August, 1981 to 31st December, 1981 the worker had been absent without leave for 15 ¹/₂ days and had been late by 61 minutes. The Port also annexed to its written Evidence and Arguments a form letter dated 18th August, 1982 in which it informed the worker that he had been absent for 46 ¹/₂ days in the “contractual year 1981-1982” and advised him that “the excess will be considered as leave of absence without pay against which deduction will be made from your salary.”

5 The Union averred on the other hand that;

• “(a) the worker had been recommended for permanent appointment as a junior clerical officer in July 1982;

• (b) the worker's names had not been submitted to the Personnel and Industrial Relations Committee in accordance with the then practice of the Port;

• (c) his acting appointment had been terminated on the purported ground of his absenteeism;

• (d) the worker had challenged his alleged record of absenteeism but he had not been given an opportunity to clarify his alleged record of absenteeism;

• (e) by agreement between the Union and the Port worker continued to act as a junior clerical officer whilst an investigation into the worker's attendance record was being pursued under the grievance procedure;

• (f) contrary to the agreement, before the completion of the investigation, the Port arbitrarily terminated the worker's day to acting in February 1986 for no stated reason and placed the worker on the B list of causal clerks with the result that he was no longer guaranteed full employment with access to overtime opportunity;

• (g) the practice at the relevant times had been that where the, Personnel and Industrial Relations Committee did not approve the permanent appointment of an officer in similar circumstances to that of the worker the appointment was deferred in order to allow the applicant the opportunity to improve his attendance record.”

6 The Union appended to its written Evidence and Arguments photocopies of purported extracts from the attendance register of the Port. (Exhibit 85)

7 In its, reply to the Union's written Evidence and Arguments, the Port disagreed with the Union's statement of the procedure for the appointment of candidates to the Port's permanent pay roll and alleged that prior to submission of names to the Personnel and Industrial Relations Committee, the recommendations were first reviewed by the General Manager and, after his approval thereof, the approved lisle was thin submitted to the Personnel and Industrial Relations Committee for “final approval”.

8 The policy of this court in determining trades disputes concerning allegations of unjust treatment of workers who arms bypassed for promotion was encapsulated in the following statement in the judgment of this Court in Trades Dispute No. 236 of 1986 between Seamen and Waterfront Workers' Trade Union and Fort Authority of Trinidad and Tobago (delivered on 5th December, 1989)

“…. it is not the function of this court to deprive an employer of his right to chose his own employees. It is not within the province of this court to take over the functions of the employer in relation to the selection of his employees. This court will only interfere with an employer's decision concerning the promotion of his employees in exceptional circumstances and only if strong case is made out justifying its intervention. It will intervene only where its intervention is necessary to protect an employee against an unjust and unfair exercise of the employer's right car where the employer's action is harsh or oppressive or not in accordance with the principle's of good industrial relations practice.”

9 Article 15 of the registered collective agreement between the Union and the Port sets out the criteria which the Port must take into account in determining the eligibility of officers for promotion. Paragraph 2 (a) stipulates that, in considering the eligibility of officers for promotion “greater weight” shall be accorded to “seniority where promotion is to an office that involves work of a routine nature.” I haves no hesitation in finding can the evidence that the office of junior clerical officer is an “office that involves work of a routine natures” and that for the purpose of Article 15 (supra) the worker's seniority date from 3rd September, 1971, the date of his first appointment as a casual clerk with the Port.

10 The collective agreement does not, however, provide for any procedure by which promotions to the position of junior clerical officer were made and I may say at once that, in my view, the actual procedure is immaterial. What is important, however, is that the procedure, whatever it may be, must be fair and just and in particular must not be discriminatory.

11 In my opinion, there is a material distinction between the procedure for promotion and the procedure for the taking of disciplinary action. The latter is set out at Articles 32 of the registered collective agreement. When disciplinary action is taken there must be compliance with the disciplinary procedure stipulated in Article 32.

12 In my opinion also, the Authority is bound by its letter dated 1st October, 1932. That letter clearly set out the reason for termination of the worker's acting appointment as a junior clerical officer. The only reason given the therein was the “worker's (alleged) unsatisfactory attendance record.”

13 This was the reason which the Port gave to the Honourable Minister's Certificate of Unresolved Dispute herein dated 17th February, 1988, which states: “The employer submitted that the worker had not been confirmed as a junior clerical officer because of his poor attendance record.”

14 I accordingly find that this is the only ground on which the Port can rely to justify its refusal to appoint the...