Transport and Industrial Workers Union v Public Transport Service Corporation

• Jurisdiction: Trinidad & Tobago
• Judge: Beckles, V.P.
• Judgment Date: 06 June 1991
• Court: Industrial Court (Trinidad and Tobago)
• Docket Number: 133 of 1991
• Date: 06 June 1991

Industrial Court

Beckles, V.P.;

Benjamin, M.

133 of 1991

Transport and Industrial Workers Union

and

Public Transport Service Corporation

Appearances:

Mr. Simeon Taitt, for party no. 1.

Mr. Beresford Pierre Acting Industrial Relations Officer for party no. 2.

Statute - Retrenchment and Severance Benefits Act, section 4 — Procedure for retrenchment of workers.

Industrial law - Retrenchment — Claim for payment of severance benefits — Alleged unauthorised removal by worker of company's property — Worker convicted of criminal offence — Worker's name published on list of workers to be retrenched — Separation notice purporting dismissal — Whether worker retrenched or dismissed — Finding that worker's name included on retrenchment list in error — Failure of claim.

Beckles, V.P.

1 The instant dispute concerns a claim by the Transport and Industrial Workers' Union (“the Union”) for the payment of severance benefits to Edmund Glen Byam (“the Worker”) by his employer the Public Transport Service Corporation (“the Corporation”) and the refusal of the said employer to pay the benefits claimed by the Union to the worker.

2 The Honourable the Minister of Labour Employment and Manpower Resources issued his certificate of unresolved dispute in this matter on the 23rd August, 1990 and the Union by letter dated 17th October, 1990 applied to this Court for a determination of this unresolved dispute concerning the refusal of the Employer to pay the worker his severance pay entitlement, in accordance with the provisions of s.59(2) of the Industrial Relations Act Chapter 88:01 (“the Act”). The matter came on for directions on the 7th December, 1990 and the parties were required to file their respective evidence and arguments on or before the 5.4.91. This matter was set down for hearing on 7.5.91. Oral evidence was taken on the 13.5.91 when Mr. Farzan All Personnel Manager and Horace Warden Clerk II of the Employer and the worker himself testified.

3 It is not in dispute that the worker was named for retrenchment on a list dated 27th December, 1989 prepared by the Corporation and forwarded to the Union which is the recognised majority union for the Corporation's weekly rated workers.

4 The Corporation maintains however that the worker's name appeared on the said list inadvertently and there was never any intention to retrench him as he was already slated for dismissal, having been previously found guilty of the dismissible offence of unauthorised removal on 10.8.89 of six (6) Bell Switches, valued at approximately $450.00 each, the property of the Corporation.

5 The Union takes the position that the. Corporation with full knowledge of the above facts allowed the worker's name to be placed on the said list, and failed to remove it therefrom even when the Union drew it to their attention, and this continued to be the case up to and including the 28.2.90 the date on which the mandatory period of notice required by the Retrenchment and Severance Benefits Act No. 32/85 expired. The Union therefore maintains that the Corporation in an effort to disguise its egregious blunder is now seeking to show that it had in fact dismissed the worker by letter dated 5.1.90, prior to the 28.2.90 the date when the retrenchment of the worker would have become effective. It branded as false and misleading the documents produced by the Corporation purporting to show that the worker's actual dismissal had antedated the retrenchment exercise.

6 In the circumstances of this case, the Corporation was directed by the court to lead its evidence first, and Mr. Farzan Ali, Personnel Manager was its first witness. He testified that he had assumed the position of Personnel Manager in December 1989 at a time when the proposed retrenchment of over 500 of the Corporation's workers was engaging everyone's attention. He was totally immersed in that exercise. He remembered being advised by the then Deputy General Manager Mr. Soverall, that although the worker's name appeared on a list compiled from a computer print out of possible retrenchees, he (“the Worker”) was in fact slated for dismissal. As a consequence of this, he had issued a separation notice dated 5.1.90 by which the worker was effectively dismissed from the Corporation. This notice was tendered in evidence and marked FA1. The list of retrenchees under covering letter from the Corporation signed by him and dated 27.12.89, bearing the worker's name was also tendered and marked FA2. He denied ever issuing a notice of retrenchment to the worker per se, as he was aware that the worker's name had been wrongly placed on the list FA2 through inadvertence, as indeed were the names of several other workers.

7 By letter dated 8.3.90 addressed to the Union he had sought to comprehensively deal with all the outstanding and anomalous errors contained in the said list including the reasons why certain persons, including the worker had not been served with retrenchment notices, or had had their retrenchment notices withdrawn. This letter was formally put into evidence and marked FA7.

8 This letter reads in part

• “3. The Corporation has since recognised that out of the total number of 553 workers falling within this retrenchment exercise, two (2) types of discrepancies have arisen, namely:

  • (i) Certain workers have been inadvertently included in error due to inaccurate information relating to their dates of employment/appointment in their present categories.

  • (ii) Certain workers have not been served with retrenchment notices due to retirement, resignation or other reasons.

• 5. With respect to paragraph 3(ii) above, 9 workers have not been served with retrenchment notices or have had such notices withdrawn because of the reasons indicated below:

2769 Byam, Glen Edmund Lab Cleaner Dismissed

w.e.f. 89.08.19

Yours...