The Superintendents Association v Trinidad and Tobago (BWIA) International Airways Corporation Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Elcock, C. |
| Judgment Date | 28 April 2003 |
| Court | Industrial Relations Court (Trinidad and Tobago) |
| Docket Number | ESD Application No. 3 of 2000 (Ancillary to ESD No. 1 of 1993) |
| Date | 28 April 2003 |
Industrial Court
Elcock, C.; Ashby, M.
ESD Application No. 3 of 2000 (Ancillary to ESD No. 1 of 1993)
Mr. Alan Alexander Senior Counsel for party No. 1.
Mr. Elton Prescott Attorney at Law for Party No. 2.
Employment Law - Retrenchment — Harsh and oppressive — Contrary to good industrial relations practice — Whether reinstatement is an available remedy where post has already been abolished — Finding that employer if necessary must retroactively re-create post.
This is at least the sixth time that a ruling, or order, or judgment of one type or another is being made in this matter, and hopefully, it will be the last. The first such judgment was delivered (in what may be called the “parent action”- dispute No.ESD1 of 1993) on October 26th 1993, when we held that Trinidad and Tobago (BWIA International) Airways Corporation Limited (“the Company”) had dismissed Joseph Granville (“the worker”) in circumstances that had rendered his dismissal harsh oppressive and contrary to good Industrial relations principles and practice, and ordered the Company to reinstate him into his former position as Area Manager, Tobago, with retroactive effect from the date of his dismissal, that is, January 28th 1992. On that occasion we also ordered the Company to effect his reinstatement (i.e. to put him back on the job), on or before November 1st 1993, and to pay to him all of the salary and allowances and other benefits that he had been deprived of from the date of his suspension to the date of reinstatement. Then on December 15th 1995 we gave our reasons for the order for reinstatement that we had made on October 26th 1993, and in the course of doing so, we made certain remarks about the merits of this matter that are quite pertinent to the issues now before us, and we will revisit those remarks in the course of this judgment.
Prior to the handing down of our order on October 26th 1993, we had invited submissions from both parties (by notice dated October 21st 1993), on what remedy we should have granted in the event of our upholding the contention of the Superintendents' Association (“the Union”) that the worker's dismissal was harsh and oppressive and not in accordance with good industrial relations practice. And in response to that invitation, the Union had pressed its case for reinstatement as the only appropriate form of redress for the worker. However, although the Company's representative had argued quite strenuously against the Union's plea for reinstatement, he had not made any submissions whatsoever to the effect that it would not have been possible for the Company to comply with an order for the worker's reinstatement by reason of the prior abolition of his post, or of any other causative factor.
Nevertheless, shortly after we had ordered the reinstatement of the worker, the Company had applied for a stay of the execution of that order pending an appeal, and during the course of the hearing of that application, it was for the first time contended on behalf of the Company, that the worker's position of Area Manager, Tobago had been abolished with effect from September 24th 1993.
On November 22nd 1993 we granted the Company's application for the stay of execution of our order dated 26th October to 1993 to be continued pending the outcome of its appeal, and on December 6th 1993 the Company filed its Notice of Appeal (No. 154 of 1993). However, the Company subsequently took no steps to prosecute this appeal, and on June 3rd. 1996 the Court of Appeal, on the application of the Union, dismissed it for want of prosecution. Thereupon the Union by letter dated June 4th 1996, called upon the Company to comply with the Court's order to reinstate the worker.
The Company replied to this demand more than three months later, by way of a letter dated September 13th 1996, whereby it informed the Union that it was incapable of reinstating him to his previous position as Area manager, Tobago because that position had been abolished on September 24th 1993. By that letter, the Company also tendered the sum of $108,268.00 as arrears of salary allegedly due the worker from the date of his suspension (August 13th 1991), to the date of the alleged abolition of his post (September 24th 1993), and offered to pay him the sum of $141,176.50 as severance benefits for eighteen completed years of service up to September 23rd 1993.
Thereafter the Union applied to this Court for an order against the Company for contempt, by reason of its failure to comply with the Court's order dated October 26th 1993; and in a judgment dated April 21st. 1999, the Court found the company guilty of contempt and imposed upon it a fine of one thousand dollars. In the course of its judgment the division or the Court before whom the application had been argued, had this to say:
“It would be artificial and unduly legalistic to take the approach which the Company has sought to articulate in its reply as well as in its submissions that, the offer to pay the Worker arrears of salary from the date of his suspension to the date of reinstatement and salary and allowances from the date of reinstatement to the date his position was abolished together with any entitlement to retrenchment benefits under the collective agreement sufficiently complied with the Court order.”
“In the circumstances we are unable to conclude that the Company has in fact complied with the order in its entirety. It seems to us that reinstatement is not a term of art in this context; it means no more and no less than putting the Worker back into the position he occupied before the employer had terminated his employment…
“… We are therefore constrained to signify our displeasure with its action in substituting, as it were, its own judgment for the express order of the Court.”
Despite these findings and strictures on the part of the Court, the Company continued to refuse to reinstate the worker, and by letter dated July 29th 1999, the Union demanded his immediate reinstatement, and threatened to initiate further proceedings against the Company for contempt, in the event of any further delay.
The company's response to this demand took the form of an application to the Court by Notice dated September 6th 1999, for the variation of its original order dated October 26th. 1993. The text of this application, (as amended on January 12th 2000), reads as follows.
“Amended Application is hereby made by party No. 2 herein, under the inherent jurisdiction of the Court and pursuant to Section 10(3) of the Industrial Relations Act, for the following order supplemental to the order of the Court made herein on the 26th day of October, 1993.
Upon payment to the worker of all arrears of salary and allowances to the date of abolition of the position of Duty manager, Tobago, by Party No. 2 on September 23, 1993, the employment of the worker by party No. 2 be and is hereby terminated.
Or alternatively for an order varying the order of the Court made herein on the 26th day of October 1993 by adding the following order:
iv. Execution of the said order at (iii) above be stayed upon payment by Party No. 2 to the Worker of $141,176.50 being the entitlement of the Worker by way of severance benefits payable as at the 23rd day of September, 1993.
On the following grounds, namely:
i. The position of Duty (sic) Manager, Tobago was abolished by party No. 2 on September 23rd, 1993;
ii. Party no. 2 ceased operations in Trinidad and Tobago on February 15th 1995;
iii. All arrears of salary and allowances due to the Worker including all arrears of salary and allowances from the date of reinstatement of the Worker (January 28th 1992) to the date of abolition of the position of Duty Manager, Tobago (September 23rd 1993) were paid to the Worker on October 3rd 1996”
After receiving written and oral submissions from both parties, we made a ruling on July 31st 2001, by which we:
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• Rejected the Company's application to vary the order of October 26th. 1993, or to make an order supplemental thereto.
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• Ordered the Company to effect the reinstatement of the worker no later than 7th August 2001.
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• Ordered the company to pay to the worker such additional sum as the parties may have agreed upon, in respect of the period beginning on the 1st. day of November 1993 and ending on the actual date of reinstatement on or before the 7th day of August 2001, or failing agreement, such additional sum, as might be ordered by the Court.
In purported compliance with our order to put the worker back to work by august 7th. 2001, the Company wrote a letter to him dated August 3rd. 2001 in the following terms:
“Dear Mr. Granville
Re: Application No. 3 of 2000 (ESD) — formally known as ESD No 1 of 1993 Dismissal of Joseph Granville
On July 31 2001 the Industrial Court ordered Trinidad and Tobago (BWIA International) Airways Corporation (the Corporation) to comply with the order of the Court made on October 26 1993. The order of October 26 1993 provided that:
(a) The worker be reinstated with effect from the date of his dismissal (January 28 1992);
(b) The worker be paid all salary and allowances and all that he would have been paid from the date of his suspension (August 13 1991) right up to the date of reinstatement; and
(c) Reinstatement should take place on or before November 1 1993.
On July 31 2001, the Court ruled that the Corporation should reinstate the worker (sic) effective January 28 1992, such reinstatement to be carried out on or before August 7, 2001. Accordingly the Corporation hereby reinstates you to the post of Area Manager, Tobago with effect from January 28 1992. Please note that the position of Area Manager, Tobago was made redundant on September 24 1993 and you were retrenched with effective from...
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