Paradoxes and human relations

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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