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:
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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Where we stand > News & Comment >
AN END TO MITIGATION? by Dave Smithposted 30 Oct 2011 05:26 by Gerry Kangalee [ updated 28 Nov 2011 16:49 by Dave Smith ] |