Questions and Answers on Industrial Relations

FROM ZERO TO INFINITY: ECA WANTS TO RESTRICT COURT’S POWER TO DEAL WITH UNFAIR DISMISSAL

posted 30 Jul 2015, 10:57 by Gerry Kangalee   [ updated 30 Jul 2015, 11:01 ]

FROM ZERO TO INFINITY:

ECA WANTS TO RESTRICT COURT’S POWER TO DEAL WITH UNFAIR DISMISSAL

 The Employers Consultative Association (ECA) recently published an article in the Newsday of Thursday July 16th 2015. The ECA argued that in cases of compensation for unfair dismissal employers were at a disadvantage because the court can award from zero to infinity. The employers’ organisation called for legislation to restrict the power of the court to determine remedial action for unfair dismissal. 

The ECA called for legislation which stipulates remedies for wrongful dismissal and unfair termination. It cites the Kenyan Industrial Court which may reinstate, re-engage the worker, and/or pay compensation to a worker up to a maximum of 12 months wages. 

The ECA statement ends: “a company executive should be able to determine what is the likely compensation, thereby enabling him/her to take calculated action as to whether the matter should be settled or pursued in the Industrial Court. It is respectfully submitted therefore that in the interest of the community as a whole in which the employer is looked upon to provide growth through the creation of jobs, a remedial structure along the line of that provided by the Kenyan legislation would be most welcome in this jurisdiction”

Dave Smith, General Secretary of the National Workers Union, commented that “a basic principle in civil disputes is that the winning party should, where possible, be put back into a position that they would have been before the offending action took place. if the employers can calculate in advance their maximum liability, then they can work out how much it would cost to arbitrarily dismissal "troublesome" (i.e. trade union) workers.”

Jason Brown (see picture), Executive Officer and Labour Relations Officer of the Banking Insurance and General Workers Union (BIGWU) commented as follows:

“It has long been my view that the principle which the ECA is standing on here has been serving them well since my interest developed in this area some eight years ago. The general rule of thumb is that the Court structures compensation around service in the main.

Using the one month salary for one year service and a possible add on for exemplary damages, employers have been doing exactly what they suggested above, i.e. “calculating” the likely cost to the business for a dismissal that is based on the corporate ego rather than for cause. They also have the added sweetener that such cost will undoubtedly be deferred by a dispute resolution system that guarantees years of relief to the offending party. 

Another such example is the awards granted for unfair dismissals during the probationary period. There seems to be “value for the period of probation” calculation being employed by the Court and has therefore given the necessary confidence to employers to continue without regard to process since it’s a “cheap” cost to bear. Our Comrade Don Devenish (Executive Officer of BIGWU) has recently however crushed First Citizens Bank with a $250,000 award for a unfair dismissal while on probation.

Judgements like these are absolutely necessary if only to be sufficiently punitive to ensure that proper process is adhered to in a meaningful way ( i.e. not cosmetic) to give workers a fair chance.

If I am to be totally objective, then I ask these question of the Court and the ECA: why hasn’t the quantity (overall) and frequency (repeat offenders) of harsh and oppressive dismissals been reduced to a trickle in the system, especially if we consider that the Industrial Court has been at it (delivering judgement after judgement)  for the past forty plus years?

 Why hasn’t the Court instituted a system of “progressive discipline” for the employer who despite the availability of Human Resource and Industrial Relations expertise continues to offend /not learn from their same ‘mistakes’? Why is it that the numbers of matters are progressively increasing each year, so much so that matters are being already scheduled for March 2016 since June 2015?

 My view is the “system” is being abused by employers for their benefit, i.e.  to dismiss without cause/process today and pay what they have already deemed as affordable much, much later.    Zero to infinity seems a fair range in circumstances such as these. “  

WHAT IS SUMMARY DISMISSAL

posted 9 Jan 2014, 12:26 by Gerry Kangalee

This feature is dedicated to practicing trade unionists whether shop stewards, branch officers or industrial relations practitioners at the Ministry of Labour, Industrial court, at the negotiation table etc.

Questions about industrial relations issues should be sent to kangaz@workersunion.org.tt and we will attempt to address these questions as expeditiously and as comprehensively as possible.

SUMMARY DISMISSAL

What is a Summary Dismissal? - This is dismissal without giving the worker a hearing as opposed to progressive practices of industrial relations where a hearing of the charge is held and the worker is allowed a defence.

Summary dismissal is supposedly predicated on the worker having committed an offence so grave that it goes directly to the root of the Contract of Employment. The Industrial Court is recent times has ruled against summary dismissals. As a result most unionized employers have adopted the practice of progressive disciplinary procedures.

What is meant by an action going to the root of the contract of employment? This is when a party to the Collective Agreement violates a major provision of the Collective Agreement.

Examples:

Taking more leave of absence than what is provided in the agreement.

Refusing to perform normal duties as provided in the job description.

The employer maliciously failing to pay the worker on time or failing to pay the correct wages.

What are progressive disciplinary procedures? - These procedures involve giving the worker the opportunity to be heard and to put up a defence to charges in the presence of his Union and or a witness before taking disciplinary action. The Industrial Court has on many occasions supported the practice of progressive disciplinary procedures

What is a Constructive Dismissal?

posted 2 Jan 2014, 07:58 by Gerry Kangalee

This act is a disciplinary action taken against a worker which fundamentally alters the Contract of Employment. It is humiliating and designed to force the worker to resign from the company. Examples of constructive dismissals are: relieving the worker of normal duties or authority; sometimes giving the worker no job functions and therefore the employee is idle during work hours; having the worker perform duties below his standing and seniority or duties she/he is not trained for or able to perform.

In some cases the worker is transferred to a remote area of the company's operations or given hours of work that inconveniences the family. In extreme cases the worker's job is declared redundant and the duties of the job are attached to another position or the job title is changed. All these actions of the employer are designed to force the worker to resign from the job. In most cases the worker retains his wage/salary and conditions.

Does the worker have to leave the job to claim constructive dismissal? No! The matter can be handled as a genuine grievance.

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