The cost of bad advice, ignorance

The recent judgement from the High Court in a matter against Trinity Industries Ltd cited as CV 2019-02385, brought by a former administrative accountant, makes quite a worrying read for us versed in industrial relations jurisprudence.

In this matter, the worker, held the position for over 15 years and was served with notice of retrenchment and was terminated with immediate effect. The High Court held that the matter was not before the proper jurisdiction, and should be heard by the Industrial Court. The matter was accordingly dismissed with costs.

The attorney’s decision to take the matter directly to the High Court was as contended, because of the administrative accountant’s failure to act in a timely manner to challenge the retrenchment decision before the proper jurisdiction. This was a senseless contention and gave me no peace of mind as to why she was not advised by her same attorneys to join a trade union, become a member in good standing in order to have the matter properly heard before the Minister of Labour and then unto Industrial Court if there was no settlement.

Our Industrial Relations Act (IRA) (Chap 88:01) gives the worker six months to file a report of a trade dispute before the minister, and grants the minister discretionary powers to extend the time within which it may be reported in accordance with section 51 (3),(4).

The worker received her notice on December 10, 2018, and the judgement stated that the defendant made an application on June 24, 2019. Given this timeline and using basic calculations, in my mind her attorneys would have been made aware of the issue long enough before the expiration of the act's six-month deadline to report the dispute to the minister.

The Industrial Court is the jurisdiction established to determine a worker’s trade dispute, not the High Court. The first step is to report the matter of a trade dispute to the labour minister. If the matter cannot be resolved, the minister will issue an unresolved certificate and then refer the matter to the Industrial Court for determination.

I was not surprised by the High Court’s dismissal. Certainly if the issue was properly explained to the worker, and her decision was to take such a high and costly risk, then so be it.

Then I read the full extent of the judgement. The attorneys, on behalf of the claimant, argued that the matter was not a trade dispute because the issue was not whether she was entitled to the severance benefit as promised by the employer, but rather to make a claim for the non-payment of it. This argument is nothing but a laughable invention from the mind of an incompetent attorney. Section 23(2) of the Retrenchment and Severance Benefit Act (RSBA) renders a fatal blow to this argument.

The administrative accountant was clearly a worker within the meaning of our legislation and, therefore, she was entitled to severance benefits as set out in the RSBA. Failure by the employer to pay the benefit constitutes a direct violation of the statute entitling her to bypass the minister and seek redress directly from the Industrial Court as contemplated under section 21(2).

The attorneys should have known that there are a host of past matters that went before the Industrial Court for non-payment of benefits. If the attorney was unsure about the procedures and jurisdictions of the court, the provisions of the IRA and the RSBA then they had an obligation to their client to conduct proper research and possibly refer it to an industrial relations specialist or union representative.

My only hope now is that the claimant is not out of pocket for her fees and costs awarded by the High Court because of this unfortunate misguidance.

The judgement rightfully had to “school” the attorney on the ABC’s of a trade dispute and the definition of a worker. The attorney, in his argument, cited cases from the High Court to support his claims. However, the claimants in those cases held positions of CEO, area manager, a lecturer at UWI, all of whom fell within the exemption of a worker clause expressed in the IRA.

What is more unfortunate is that the worker had a very good chance of success at the Industrial Court. Based on the worker’s claim, the employer failed to consult with her when she was given the retrenchment notice. The worker claimed that her boyfriend was fired on December 6, 2018 and she had a confrontation earlier that morning with management on December 10, 2018. On that same day she was terminated, but subsequent to the notice of retrenchment, someone else was hired to fill the same position and given the same title. This was an easy case for even a novice trade unionist to win.

However, all is not lost. I will advise this poor mistreated worker to still join a trade union which can make an application to the labour minister to exercise her discretion and extend the time to report the matter. The matter that gave rise to the dispute occurred a mere year and three months ago. Once granted, the report should be for unfair and wrongful termination and not about failure to pay severance benefits.

I know that our profession is one of practice, but some basic and fundamental knowledge should form its basis.