This article was first published in the Trinidad Express Newspapers on December 15th 2019.
My basic discipline in University was Philosophy …Everything that human relationships touches on is based on a philosophy of one sort or another. The Industrial Court, for example, was based on the philosophy clearly enunciated by its first President, Sir Isaac Hyatali, who , after years in the local courts, had a deep understanding of the culture in which he was born and brought up.
He said very early on that the Industrial Court was not solely a court of Law, it was a Court of Human Relations. It often made it difficult to understand, especially for those programmed in the formal and academic discipline of law. Sir Isaac and his counterpart in Kenya, Sir Saiid Kokar were the two first and most respected Presidents of Industrial Courts in the British Commonwealth at that time. Their understanding of the often paradoxical nature of the societies in which they lived and presided as Judges was highly respected and used as precedent in many of the Industrial Courts and Tribunals that followed.
Sir Isaac’s understanding of his society was appropriate, for if any country can be said to have a philosophy , it is Trinidad & Tobago, and that philosophy is Paradox.I am convinced that for every positive truth you can say about T&T you can equally positively say the opposite.
Many years later, Another President of our Industrial Court . Mr. Addison Khan in his text “the Law of Labour and Employment Disputes in Trinidad and Tobago” put it this way: “The role and function of the Industrial Court are often grossly misunderstood. Industrial Courts are specialised Courts that are established for the settlement of employment and labour disputes that are not appropriate for determination by ordinary civil Courts.”
It is for this reason that attorneys that practice in other jurisdictions: civil and criminal in particular, are often heard to loftily comment that the Industrial Court is not a “real court” and have tried, over recent years with some success, to influence this court to move away from the human rights and human relations philosophy that was accepted during Sir Isaac and Sir Saiid’s time. Things change, environments change, politics change and influences change along with them.
In Sir Isaac’s day There was no UWI Faculty of Law graduating hundreds of bright young legal advocates into the relatively limited judicial catchment area of Trinidad & Tobago., So, instead of going into Family Law, or Tax law, both of which , I am told, can be formidably difficult, they have now plunged into Industrial Relations Law. Granted it can be difficult as well, and like most relationships in the Caribbean, paradoxical.
Take theft, for example. It is wrong? It is against the law? If caught will a thief be penalized?.
Let me give you an example.
In Jamaica, which has an Industrial Tribunal not dissimilar to ours, the criminal code also affirm s that theft is a crime deserving of punishmenr. However in an interesting case from that jurisadiction, an employee who worked in a company that produced mattresses removed one of the company’s mattresses and sold it on the side, at a profit, taking the increased money for himself. He was caught and admitted he had done so in the presence of his manager and of his union shop steward. The latter advised him to resign. As this would save the worker from a possible criminal charge, his manager agreed.
Although it sounds like an open and shut case, it was not, as the Union then took the company to court for unfair dismissal as it claimed the worker’s termination was against the principles of Natural Justice. The Union won the case and the thief was given compensation for unjust dismissal since he had not been allowed to defend himself in the presence of a representative of the Union’s Head Office , only in the presence of the union’s shop steward. There have been several cases in the industrial courts where an employee was terminated for “misappropriation of company property” but was awarded compensation because the proper proceedings were not followed. In the vast majority of these cases, it was because , according to the company, the employee had been caught red handed so was not given the opportunity to defend himself , (or in one case herself) before the person with the authority to dismiss them. This is one of the major principles of Natural Justice which Sir Isaac, and most of the UK and other Industrial Tribinals regard as a “sine quae non” or a “first principle” and must always be adhered to.
It does not mean that you have to believe the excuse given by the excuse in their own defense. . You do not have to believe it. You just have to listen, and then make up your mind. Even where the employee has been given the chance to defend himself, if it can be shown that even before he had made the defence ,the employer had already decided to dismiss them …and that is usually revealed through an exasperated outburst from an inexperienced labour officer saying that: “I don’t think you have said anything to change our minds about your guilt”, the court will rule that the worker was unfairly dismissed.
Sir John Donaldson the then Head of the UK Tribunal said it clearly: “The National Industrial Relations Court is a court of Law, but with a difference. Why, then, is this Court different? It is a different in its composition, in its objects and in its procedures. It is a Court of law, but not a Court of lawyers. “
Paradox is such an interesting aspect of industrial relations
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