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AN END TO MITIGATION? by Dave Smith

posted 30 Oct 2011, 05:26 by Gerry Kangalee   [ updated 28 Nov 2011, 16:49 by Dave Smith ]
In reality, most Industrial Court decisions are pretty routine. Obviously significant and important for the participants, but, in general, what the Court does is to apply well established principles of “good industrial relations practice” to the facts of that particular case.
After being in existence for over half a century, the Court has honed its concepts of good industrial relations practice into well defined and recognised areas: natural justice, double jeopardy, condonation, equity of treatment, and proportionate discipline.
Having won a matter in the Court, the question of remedy is what has to be considered. How the Court determines the actual dollars and cents remains one of the mysteries of the Industrial Court.
Although what is called “quantum” remains difficult to pre-determine, the headings that can typically be used were clarified in a useful case involving Banking Insurance and General Workers Union and the Hindu Credit Union (GSD-TD 002/2001 BIGWU -v- Hindu Credit Union). In that judgment the Court identified the following headings as being normally relevant for consideration:
 
  • the immediate loss of wages;
  • the manner of dismissal;
  • the loss of benefit of past wages;
  • future loss of wages;
  • loss of fringe benefits;
  • loss of pension rights, and
  • any other loss suffered as a result of the dismissal.
Despite this list of headings, all too often trade unions have expressed the view that compensation or damages is not sufficient to really do justice to the hardship experienced by workers following a dismissal.
Occasionally, just occasionally, the Court comes up with what are called “landmark judgments” - judgments that establish a significant new legal principle or concept, or otherwise substantially changes the interpretation of existing law. The Communications Workers Union -v- Illuminate (Trinidad & Tobago) Limited (GSD-TD 118/2009) is one such case. (See attachment below for court judgement)
When a worker is dismissed, it has generally been accepted that there is an obligation on the worker to mitigate his/her losses – that is, to try and find another job as quickly as possible.
However, in this interesting and important case, the Court said that:
“We are of the view that this Court has, over the years, misled itself on this question of mitigation of damages in dismissal cases and it is not for the Court to continue to labour under that error, or to apply that common law rule only for the reason that it was applied in the past.”

The Court went on to pose this very interesting question:

 “... is the requirement that a dismissed worker mitigate his or her loss intended to be a benefit to the employer by reducing the extent of his liability, raising the incongruity than an employer who has sinned against an employee can demand of that employee diligent effort at amelioration of the offending employer's exposure to a claim for damages.” 

In expanding on its thinking, the Court added:

“Taken to its logical conclusion the principle of mitigation would impose on the worker an obligation to compensate the employer who dismissed him/her for his benevolence, foresight and compassion in dismissing him. Nothing of the sort could have been in the contemplation of either of the parties at the time the contract of employment was made or the dismissal effected” 

Finally, the Court concluded that:

“The Court turns to section 10(5) and finds inspiration in that provision for disregarding the principle of mitigation of damages as being not a natural consequence of the dismissal and, therefore, in a manner of speaking, too remote to be a relevant consideration.” 
When presenting cases either in conciliation at the Ministry of Labour or in arbitration in the Industrial Court, it is not enough to succeed in establishing that the dismissal was unfair. Unions have to develop rational arguments for compensation that ought to be paid. 
This case should help in at least eliminating one aspect of the compensation debate to the advantage of the worker.
 
Comments on this article may be sent to gkangaz@hotmail.com 
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Gerry Kangalee,
30 Oct 2011, 05:45
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