Transport and Industrial Workers' Union v Sissons Paints Ltd et Al

• Jurisdiction: Trinidad & Tobago
• Judge: Lutchmedial, V.P.
• Judgment Date: 14 November 2014
• Court: Industrial Court (Trinidad and Tobago)
• Docket Number: Industrial Relations Offence No. 11 of 2012
• Date: 14 November 2014

Industrial Court

Lutchmedial, V.P.; Rabathaly, M.

Industrial Relations Offence No. 11 of 2012

Transport and Industrial Workers' Union

and

Sissons Paints Limited et al

Appearances:

Ms. L. Pollidore 1st Vice President for Party No.1.

Mr. J. Singh and Mr. O. Francis Industrial Relations Consultants for Party No.2.

Employment Law - Trade dispute — Collective agreement — Retrenchment — Whether company failed to observe invoke or breach Article 16 s.1 of collective agreement — Whether company failed to give any or any adequate notice of retrenchment — Whether company failed to negotiate with union in good faith — Whether workers deemed to be guilty of offence punishable under Industrial Relations Act — Industrial Relations Act, Ch. 88:01, s.40 — Retrenchment and Severance Benefits Act, Ch.88:13, s.4 — Complaint dismissed

Lutchmedial, V.P.

INTRODUCTION

1 At all material times the Transport and Industrial Workers' Union (the Union) was the Recognized Majority Union (RMU) by virtue of Recognition Certificate No. 42 of 1975 representing the hourly, daily and weekly rated and monthly paid employees of Sissons Paints Limited (Sissons) at its place of business in Chaguanas.

2 By letter dated June 22nd 2012, the Union applied to the Court for an order against Sissons pursuant to s.84 of the Industrial Relations Act Ch. 88:01 (the IRA) and against Edward Kacal, (Managing Director) Amy Lazzari, (Business Transformation Manager) Keith James, (IRO Lead Manufacturing Sector) and Kashta Ome, (Human Resource Advisor) (hereinafter collectively referred to as “the Officers” if not by their individual names) pursuant to s.70 of the IRA (the complaint)

Sections 70 and 84 of the IRA are reproduced hereunder:

“s.70: where an offence punishable under this Act has been committed by a Company, any person who at the time of the commission of the offence was a director, general manager, secretary or any other employee of the Company, not being a worker, or was purporting to act in any such capacity, shall be deemed to be guilty of that offence, unless he proves that the contravention was committed without his consent or connivance and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to all the circumstances.”

• “s.84: (1) “all proceedings for the obtaining of an Order against any person in respect of an industrial relations offence shall be instituted by an application to the Court by the employer, the recognized majority union concerned, if any, or, where there is no such union, any union which, at the time of the commission of the industrial relations offence had as members of that union workers employed by the employer.

• (2) an application under subsection (1) shall be made within three months from the time when the industrial relations offence took place, and not after.

• (3) all penalties for industrial relations offences recovered under this Act shall be paid into the Consolidated Fund.”

This bring us to s. 40 of the IRA which states:

• “(1) where a trade union obtains certification of recognition for workers comprised in a bargaining unit in accordance with this Part, the employer shall recognize that trade union as the recognized majority union; and the recognized majority union and employer shall, subject to this Act, in good faith, treat and enter into negotiations with each other for the purposes of collective bargaining.

• (2) a recognized majority union or an employer that fails to comply with this section is guilty of an industrial relations offence and liable to a fine of four thousand dollars.”

3 In the complaint the Union identified the offence(s) as:

1

The failure of the Company to give formal notice to the Union of the termination of one hundred (100) of its employees on the grounds of redundancy, contrary to Section 25 (1) of the Retrenchment and Severance Benefits Act Ch. 88:13 (RSBA). 2. On June 22nd, 2012 the Company issued notice of termination on the grounds of redundancy to one hundred (100) of its employees, members of the Bargaining Unit in respect of which the Union is the Recognized Majority Union, but did not give the union any prior notice such termination. 3. The failure of the Company in good faith to treat and enter into negotiations with the Union for the purpose of Collective Bargaining contrary to Section 40 of the said Act and contrary to Article 16 Redundancy/Lay off of the Collective Agreement.

4 In this Ruling, the matters complained of above are together referred to as “the offences” save where otherwise stated.

Section 25(1) of the RSBA provides:

• “(1) A person who contravenes the provisions of this Act is guilty of an industrial relations offence within the meaning of the Industrial Relations Act and liable;

  • (a) in the case of an employer, to a fine of ten thousand dollars; and

  • (b) in the case of a union, to a fine of five thousand dollars.

• (2) where a contravention referred to in subsection (1) is brought before the Industrial Court it shall be dealt with in accordance with the procedure laid down by the Industrial Relations Act, and the Court may make an award in favour of an aggrieved party.”

5 In 2011 there were two (2) registered Collective Agreements between Sissons and the Union which contained identical provisions for “Redundancy/Lay off” (Article 16) among others. Section 1 of Article 16 provides:

“In the event of that conditions develop which may be considered by the Company to warrant a permanent or temporary reduction in the workforce, the Company will, before taking any decision, discuss the matter with the Union.” (Emphasis ours)

The Collective Agreements covered the period January 01st, 2009 to December 31st, 2011 and both the hourly/weekly paid and the monthly paid workers in the respective bargaining units at Sissons. The breaches complained of and the events leading up to them arose in 2012 after the expiration of the Collective Agreements. The Union has submitted to the Court a proposed Collective Agreement for the period January 01st, 2012 to December 31st, 2014. No evidence has been forthcoming to show whether as at the date of the offences complained of there was in existence any registered Collective Agreement between the parties.

BACKGROUND FACTS

6 The Union stated (in its Evidence and Arguments) that as result of rumours being circulated that Sissons will be merging with a competitor, (Penta Paints Limited whose correct name is/was Penta Paints Caribbean Limited (Penta)), its President by letter dated May 17th, 2012 wrote to the Human Resources Manager of Sissons requesting a meeting to discuss the complications that may arise (for the workers and the Union one assumes) by the “impending” merger.

7 Sissons acknowledged the above letter on June 5th, 2012 and suggested dates for a meeting, “for the purpose outlined in your letter” (Sissons words). The parties met on June 11th, 2012 when the Union was assured that should there be changes to the “operations” of Sissons it will be informed and, (according to the Union), its concerns were “unfounded.”

8 Sissons then after referring to the first meeting, by letter dated June 18th requested another meeting carded for June 21st, 2014 “to inform the Union of any decisions made with reference to our plans for the organization.” (Sissons' words)

9 The Union has not disputed Sissons' statement that on June 18th, 2012 ANSA Coatings Limited (formerly Penta) and Sissons executed an agreement relating to the sale and purchase of certain assets of Sissons (the sale agreement).

10 The parties met on June 21st, 2012 whereupon Sissons informed the Union of the Sale agreement, the cessation of operations at the Chaguanas facility and the retrenchment of the workers and the payment of severance benefits in accordance with their terms and conditions of employment and/or the Collective Agreement. S.18(1) of the RSBA provides for the payment of severance benefits by the most favourable formula whether in the Collective Agreement or the RSBA.

11 At the said meeting Sissons also served the Union with formal notice (the notice) of retrenchment in compliance with s.4 of the RSBA. The proposed date of termination was fixed as August 06th, 2012 in order to comply with the 45 day notice requirement no doubt. Sissons further indicated in the Notice that notices of retrenchment will be served on the affected employees on June 22nd, 2012 which Sissons did. Further, by letter dated June 22nd, 2012 Sissons served notice of the retrenchment on the Minister of Labour as required by the RSBA.

12 s. 6 of the RSBA provides

“subject to section 7, the minimum period of formal notice required by section 4 shall be forty-five days before the proposed date of retrenchment.”

and s. 7 provides:

“Where, due to unforeseen circumstances it is not practicable for an employer to comply with the requirements of section 6 with respect to formal notice, he shall give the maximum notice that he can reasonably be expected to give in the circumstances and the onus shall be on him to prove that the circumstances which prevented him from complying with section 6 were indeed unforeseen.”

JOINDER OF THE OFFICERS

13 The Union reported the complaint against both Sissons and the officers. The officers were made parties to the complaint pursuant to the conjoint effect and purposes of s.70 of the IRA and s.25(2) of the RSBA. The Union, on being requested by the Court to identify the provisions of the RSBA which were contravened by the officers replied, “… individually, personally, they did not contravene anything, but, remember, they were part of a team. They represented the Company (Sissons)…. and all of them being part of the decision that was made to terminate these workers.” Sissons' representative submitted that before the Court could make an...