Seeking interests of the community as a whole

In Newsday's February 29 issue, a succinct and accurate summary of an Industrial Court award under Jada Loutoo’s byline was published.

Of course, because February 29, otherwise known as Leap Year Day, is surrounded by superstitious intimations of both good and bad luck, and not only because of the proposals of marriage – the initial reaction on the part of most industrial relations people was puzzlement. Is that bad news or good news?

It was certainly surprising news and totally unexpected.

Basically, for those who did not have a chance to read it, the article reported that the Appeal Court, presided over by a panel of our most respected and carefully objective justices, had sent an award made by the seldom-challenged Industrial Court back to the court for that body to reconsider what it had said.

In some circles this is like telling the Pope to reconsider his decision not to allow priests to be married. Question the authority of the Industrial Court? You must be mad!

Of course there are many communities and organisations that are questioning the Pope’s decision about married priests in light of the sharp drop in priestly vocations, and since the exposure of the Chamber of Commerce’s opinion that the Industrial Court was biased against employers, apparently there are also questions in some quarters about the objectivity of Industrial Court judgements as well.

But like the ancient saying that “roach have no place in rockstone dance,” many old-timers in the industrial relations profession felt a little miffed at the Appeal Court questioning the workings of our court, mainly on the basis that those people in the Appeal Court don’t understand industrial relations.

Be that as it may, however, that does not account for the erudition and indepth research that justices of the Appeal Court are capable of. And they certainly know their contract law – one of those places where the disciplines of law and industrial relations often meet at a crossroads.

The long and the short of it is that the Appeal Court was careful not to step on the Industrial Court’s expertise in the industrial relations field, but it demolished the Industrial Court’s handling of jurisprudence. It only took into account the interests of the four dismissed workers found drinking alcohol on the job, but did not take into account, as the Industrial Relations Act required it to do, “the interests of the community as a whole.”

The dismissed workers, quite unusually, and in spite of being dismissed for breaking company rules and potentially endangering the safety of the other workers on the plant, and breaking the increasingly strict occupational health and safety laws, were each given termination bonuses by a compassionate employer in recognition of their years of service.

The court, however, while admitting that the dismissals were not harsh or oppressive and were certainly not contrary to the principles of good industrial relations, demanded that the company pay the justifiably dismissed workers even more money. It demanded that the dismissed workers be paid the equivalent of what they would have been paid if they were retrenched due to factors beyond their control and were owed severance pay under the law.

The court thus established a precedent that would – indeed certainly will – affect “the community as a whole.”

All the Appeal Court is demanding in its turn, however, is an explanation. It wants the Industrial Court, instead of just saying pre-emptively that its decision to grant severance payments to workers who are dismissed for cause was “in the interests of good industrial relations practice,” to explain its reasoning.

This is a consummation “devoutly to be wished” as the saying goes, and will be most welcomed.

What makes the court’s decision to reward workers who are dismissed a “good” one? It is compassionate, yes, but is it “good industrial relations"? Will this now apply to other disciplinary charges? Theft or embezzlement, for example? Is it “good industrial relations practice” for the wider community? For small family businesses? For supermarkets? Or is it just for manufacturing plants?

It certainly will be welcomed by the dismissed employees, who, if their service has been long and honourable, will feel a kind of “ownership” in the company they have contributed their labour and loyalty to (if they have indeed, been loyal to it).

But how does this affect other organisations, other situations in the community? Because it will affect them as well.

The Industrial Court has not always been scrupulous in giving reasons for its judgements that take the interests of the rest of the community into consideration so that the entire community can be guided in the future.