The price of slow justice

This article was first published in the Trinidad Express Newspapers on September 22 2019. 

Paradox is the spice of life, and few aspects of life are more paradoxical or spicy than Industrial Relations.

There is a fundamental difference between Law and Industrial Relations which many lawyers fail to appreciate.  As Sir Isaac Hyatali, our first Industrial Court President used to say : The Industrial Court is not  so much a court of law as it is a court of Human  Relations. “ Sir Isaac and  His Honour Saiid Cokar, President of the Industrial Court in Kenya were the two most  renowned and respected  Heads of Industrial Courts and Tribunals  in  the entire British Commonwealth at the time. Sir Isaac’s advice and Judgements were  referenced all over the Commonwealth. As I read the address by our  current Industrial Court President  this week, I could not help but think of him and  the  advice and wise guidance he brought to the jurisdiction over which he presided.

One of the  most frustrating things that practitioners in our Court have to put up with  , iscontrary to  one of the first principles of good industrial relations . That principle is that a workplace grievance  must not only be dealt with, it must be dealt with expeditiously. Left to fester it can explode. When parties have reached the point of extreme frustration   in a matter before them and  have to go through the lengthy bureaucratic process ending in the Industrial Court, they  may be told that  the closest date for hearing is in 2021   To learn from Her Honour Thomas-Felix that among the  major reasons for this   is the fact that the Court at present has only  two out of the twenty-two court reporter  positions on the approved establishments filled  . And to keep it that way,  the Budgetary allocation  to run the court has been cut by 38%. Also cut has been the budget for training of judges , and the budget for paper and ink on which to print out the awards that used to be readily available . Sir Isaac must be turning in his grave.

Sir Isaac, of course , left us long ago , and times have changed. We have fewer strikes  now than he had to sort out in the 60’s. More cases are referred to court. And  everyone has computer access. But, as the French say: “Plus ca change, plus c’est la meme chose”. In Sir Isaac’s time, back in the 60’s,  there was a concerted effort  by the trade union movement, as a form of protest against the ISA which prohibited strike action and established the Court to eliminate both. And  cleverly, they used the Act itself  in order to do so. They decided to  send even the most minor grievance  to the Court  with the intention of so clogging it up as to make it  unworkable. Which it did.

The government of the day listened to  their  protests and new legislation, our current IRA  , was passed  which returned the right to strike , and protected the rights of unions  in many other ways. It even removed the right of individual workers to take cases to court unless they belonged to a trade union. It was now the sole prerogative of RMU’s ( Recognized Majority Unions) to take cases to the Industrial Court. So the new IRA increased union membership and, as only up-to-date-fee-paying members  that compromised  over 50% of a bargaining unit could make a union  eligible for recognition to represent  workers, it  provided a considerable level of financial stability  as well.

The obvious paradox is that while Unions are now willing  customers of the Court, the same paralysis  that resulted in  the  court becoming clogged as a form of protest against it  is now resulting in  it becoming clogged  as a result of  Union support. As  Her Honour   pointed out in her address, during  this year,  one thousand four hundred  and ten new cases were filed . How can any court with only two senior  Court Reporter  positions currently filled be expected to   ensure that  matters are “dealt with and dealt with expeditiously”?

As for access to technology  being a possible boon to speed up the process,  back in Sir Isaac’s time, copies of awards were available for the price of a photocopy. Now, there is a yearly charge of $5500.00 for online access per user, which many individual workers wanting to find out the justice of their complaint  by reference to  the wisdom of the court simply cannot afford.

  The difference between dealing with  a case in the Magistrates’ Court  which , according to the latest statistics  may take even longer to be heard, is that  if you have a civil case, about  property, or marriage, for example, once it has been  settled in  that court, the antagonists need never speak to each other again. Or even see  each other. With an Industrial Relations dispute, however, the RMU and the  Company  must continue to  work together. It is like an indissoluble marriage. Or at least a marriage “till death  do us part” and either the Company or the Union  passes away. So the basis of industrial relations is, as Sir Isaac perceptively said,” human relations”. Law is only  a peripheral part of the relationship. The essence of good industrial relations , as it is in marriage, is  to avoid court by  preventing disputes from escalating  in the first place. Hence the move toward mediation outside the court system.

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