This article was first published in the Trinidad Express Newspapers on October 20th 2019.
On one of my earliest visits to Mayaro, many years ago, I was introduced to a soucouyant. Well, to be honest, I was sitting on the back steps at night, and what I saw was what appeared to be a ball of light swirling through the palm trees. It was, I was told, a soucouyant and if I searched the area, I would find the skin she had taken off so that she could travel as a ball of fire through the trees. If she landed on you, I was warned, she would suck all the blood out of you and you would die.
The only remedy was to find her skin, sprinkle it with salt so that she could not get back into it, and come daylight she would perish. I was too frightened to go among those trees looking for her skin in the dark, so instead, I sprinkled salt around the doorway and on the windowsill of my room before I went to sleep. It worked. She never got in to my room and by morning the salt had vanished.
Urban Myths exist in every society and in many aspects of human activities, and these myths or misconceptions are often used as a means to avoid risks or punishment of some sort.
The field of Industrial Relations is not immune. A common myth, or misconception, that exists in many of the Caribbean jurisdictions has to do with giving evidence before an Industrial Court or Tribunal hearing. The misconception asserts that if you are charged with a disciplinary offence, or an illegal industrial action, and you refuse to speak when asked a question either in cross-examination or by a judge, then no action can be taken against you.
I was once told that this arose from watching TV shows in which the “right to remain silent “ was repeatedly invoked by TV police arresting the crook and reading him (it was almost always “him”) his Miranda Rights, saying that ”anything you say can and will be taken down and used against you in a Court of Law”.
As the TV stories went, people accused of murder could not be condemned if they refused to give evidence since, the bush lawyers insisted, the Rules of Natural Justice demand that an accused must be given the opportunity to speak in his (it is almost always ‘his’ in these scenarios) defence. So they would have to be set free. People accused of disciplinary offences have come to the Industrial Court attempting to avoid an adverse judgement by using the same dodge.
Which makes a good dramatic scene on TV. But it doesn’t work in practice in real life. Refusal to speak in response to a Judge’s questions may be regarded as evasion, or as a contempt of court. In other instances it may be regarded as an admission of guilt.
It is true, however, that in any situation, an accused has the right to remain silent after having been given the opportunity to defend himself by the person or authority with the power to enact punishment. The Principles of Natural Justice are absolutely adamant that anyone accused must be given that opportunity. This should actually include teenagers coming home late, or partners or spouses that forget your birthday.
In the Industrial Court, however, the operative word is “Opportunity”.
If the Judge gives an accused person the opportunity to give his side of the story and the person chooses not to respond, invoking his “right to remain silent’ so as’ not to incriminate or criminally debase’ himself, no one can force him to speak. Judges, however, have the obligation to make their awards based on the evidence before them. If the accusations against the allegedly offending person are presented convincingly and are not defended equally convincingly, it stands to reason that the evidence against the accused will largely determine his fate.
This however, must not be taken for granted. The operative word here is “evidence”. If no evidence is submitted in support of the facts submitted against the accused, however clear and eloquent those submissions may be, but no witnesses are called or written documents presented there is a good chance that the accused may not face punishment. The Industrial Court is obligated to remember its mission to be fair and reasonable …as the IRA puts it: “fair and just, having regard to the interests of the persons immediately concerned and the community as a whole.”…”to act in accordance with equity , good conscience and the substantial merits of the case before it, having regard to the principles and practices of good industrial relations.”.
In one famous Jamaican dismissal case “’Eric Fearnny and Others vs Knox Educational Service”, although both sides gave verbal evidence initially, the workers who were dismissed refused to be cross-examined by the company’s representative. The judge in his summing up ruled that the decision must be based on evidence, and while the adjudicator must ‘fairly’ listen to the contentions of all persons, and the company had the opportunity to comment and give evidence against the workers’ testimony, the opportunity had been given to both parties.
While refusal to answer any questions or cross-examination in Industrial Court matters may not, in itself be decisive, it would certainly influence an adjudicator in light of any other evidence presented, regardless of whichever of the parties refused to answer.