Appeal Court sets aside Industrial Court order

THE Court of Appeal has set aside an order of the Industrial Court which held that a matter before it was not a trade dispute. The matter was sent back to the Industrial Court’s Essential Services Division for its determination.

The appeal, which was heard by Justices of Appeal Allan Mendonca, Prakash Moosai and Peter Rajkumar, concerned whether the question or difference between the Water and Sewerage Authority and the Public Services Association (PSA) was a trade dispute within the meaning of the Industrial Relations Act.

The Industrial Court held it was not and the PSA appealed, contending that the court erred when it came to that decision. The dispute at the Industrial Court was between a worker and the authority when WASA commenced disciplinary proceedings against the worker and failed to complete them in three months in accordance with provisions of the collective agreement between parties for monthly paid workers.

The collective agreement expired in 2013 and disciplinary proceedings were instituted in 2016, and the worker, who held senior managerial positions, was put on suspension.

In 2012, WASA implemented a policy to enable its employees holding a position in higher job ranges, to participate in the executive management of the authority. The worker assumed the position of a director and was contracted from 2015 to 2017 and was on no-pay leave from his substantive post.

The worker was formally charged with several acts of misconduct in 2017 relating to activities the worker carried out as an executive manager on contract.

The charges included the implementation of an interim structure for a division without approvals causing WASA to commit to undue and unbudgeted expense and engaged select contractors without prior approvals.

The worker has denied any wrongdoing and no disciplinary hearing was convened until almost two years after the initial notice was sent on December 24, 2018, to be held on January 10, the next year.

After his attorneys wrote to WASA that they considered the convening of the disciplinary hearing to be in breach of the collective agreement, the worker approached the Industrial Court for injunctive relief and reported a trade dispute to the Minister of Labour which was referred to the Industrial Court.

At the Industrial Court, WASA contended that the worker was not covered by the collective agreement and that the Industrial Court did not have the jurisdiction to hear the matter since it was not a trade dispute.

The Industrial Court agreed and also held that the worker did not approach it using the proper procedure of seeking an interpretation and application of the collective agreement and dismissed the matter on a preliminary point.

In the court’s written decision, Mendonca said there was no doubt was connected to the terms and conditions of employment and how the provisions of the collective agreement should be interpreted and applied to the case.

The PSA was represented by attorneys Douglas Mendes, SC, Kelvin Ramkissoon and Leon Kalicharan while WASA was represented by Kerwyn Garcia and Vishma Jaisingh.