This article was first published in the Trinidad Express Newspapers on November 3rd 2019.
The conventional belief in sociology used to be that it takes a whole generation for patterns of social or cultural behaviour to change. The rule of thumb definition of generation was 15 years. In this Axial age we are going through time seems to have speeded up and cultural changes take place every decade or less. This is as true in industrial relations as it is in family life, in economic or political life.
The recent furor that has arisen over the investigation into the allegations of sexual misconduct in the SPORTT hierarchy is a good example. Sexual harassment in organizations is not new. Men making sexual innuendoes ‘advances’ to females they worked with is hardly new. In fact, a hefty percentage of marriages used to arise out of people meeting their future spouses at work. One of the standard HR precepts used to be that married people should not work in the same department or branch of an organization to protect them from the suspicion of complicity should fraud occur.
Within the last two generations (however counted) things moved and it became acceptable for people to move in together without bothering to apply for a license. Indeed, many could not get married if their families came from different religious traditions as xenophobic religious officials would not allow it. So, recognizing the contradiction between faith and regulations, people chose not to. But sex continues to exist and sexual predators, welcome or unwelcome, continue to be a normal feature of life. And, get real. Will continue to for many generations to come. The MeToo# movement gaining proliferation all over the world is evidence, but it is not about sex, which is a normal part of human life. None of us would have been here without it. It is about power. How power is distributed and how power is used and abused.
In the Daryl Smith case, there are two main issues and neither of them is sex. The first issue is the abuse of power, the second is the observance or the non-observance of the Principles of Natural Justice. Both of these are contained within the ambit of the architecture of governance in Trinidad and Tobago. The case that was sent to the Industrial Court by the Ministry of Labour was the allegation of the wrongful dismissal of Ms. Moreau whose responsibilities, as the minister’s “personal secretary”, were to support Minister Smith’s political image. This should have rung a warning bell from a start.
Minister Smith’s power, as her employer, was misused from the beginning as, although he could hire her, she had never been given a list of her duties, other than an ambiguous “to make him look good”. This did not allow her to measure her own performance to determine whether she was carrying out the responsibilities she was engaged for.
This would have made the determination of the rightfulness or wrongfulness of her dismissal difficult for the Industrial Court. The assumption is that, given the circumstances the case would have been seen as what is known as a “constructive dismissal” which can occur when an employee resigns because the behaviour of the employer is so unreasonable as to leave her with no alternative.
Awards for “constructive dismissal” can be in the hundreds of thousands if the Court or Tribunal feels that the balance of probabilities shows the employer was wrong. Recent awards in cases #003 of 2006 and #106 of 2014 resulted in awards of $150,000.00 and $200,000.00 respectively. So this case was settled out of court to protect the ministry’s reputation.
It is important to remember the words of the Industrial Court in Case No. 17 of 1995 that “the assessment by a perpetrator of sexual harassment of whether his or her conduct amounts to sexual harassment is not a relevant consideration. It is not relevant what motivated his or her conduct or what intention accompanied it. What is relevant is whether the conduct is voluntary on his or her part whether it is uninvited on the part of the victim and whether it is unwelcome by that victim”. This is a useful guideline for human relations generally. “Intention” is a private and internal matter. “Behaviour” is what makes the difference. Perception is not Reality. It is only one person’s perception of reality.
The perception that “I was only joking” may not be the perception of the victim that is inappropriately touched or addressed. And no. Before you protest. It is not a joke. And it is not funny. Grow up. When it is done by a boss to an employee under the belief that status allows it, it is an abuse of power.
Insofar as the Natural Justice Principle that demands that someone be given the right to reply to the person with the power to impose the penalty, to charges made against them that may lead to disciplinary or legal action, it is not enough that the perpetrator be asked in an interview to give their side of the story. According to the report published this week dealing with Ex-Minister Smith, they must also be told what the penalty is that will be the result of the charges against them, and be given an opportunity to say why they believe that they should not be thus penalized.
Ex Minister Smith claims that he never saw the report. His lawyer claims that she never saw the report and that therefore he was not given the opportunity to defend himself before AND THIS IS IMPORTANT the person or authority that has the power to impose the penalty.
His interview with the investigatory committee did not fulfil this criterion.