Getting it right on trade union, manager case

Many years ago, a child aged eight, who should have known better, stood in front of her classroom and her teacher and told a lie. A stupid, ridiculous lie, easily observed as a lie by all present, and they laughed at her.

“Well, you really have egg on your face now,” her teacher said.

When she asked what “having egg on your face” meant, she was told that it meant public shame…the embarrassment of being seen to have made a statement that was wrong in front of people who knew it was wrong.

I was that little girl, and it was perhaps one of the most valuable lessons life taught me.

I have egg on my face again today.

Last week I wrote an article asking why it was a trade union took up a claim for an employee’s promotion to a position of general manager to the Industrial Court. That court was set up to defend workers, not managers, and why had the question of whether the man was a “worker” or a “manager” then gone before the Court of Appeal for determination, when a separate institution, the Registration Recognition and Certification Board (RRCB), had been set up, by law, to decide those matters.

I am supposed to know about things like that. But this time I had got my information from the press, which I admitted in the article – but the press was wrong, and I should have known that.

Reporters are not expected to know everything about the topics on which they report. Industrial-relations law and practice are complicated matters. I am supposed to know how they operate and confirm the facts, not rely on press reports.

So I was wrong. I apologise, and I have metaphorical egg on my face.

Fortunately, a reader kindly took it upon themselves to point out my mistake, and sent me a copy of the court award, No GSD -A001 of 2002 between the National Union of Government and Federated Workers (NUGFW) and the North Central Regional Health Authority (NCRHA), which, I hope will relieve the various other practitioners who contacted me in consternation when I asked, in that article, why it was that a trade union had been given the authority by the court to argue which manager should be given the position of general manager, or any managerial position at all?

Well, it hadn’t.

The issue it ruled on had to do with the difference between the positions of general manager, quality and manager, quality, and whether either existed.

For a position to exist in a government authority, I was patiently told, it has to go through five steps:

1. The need has to be established by a manager within the authority;

2. The position has to be agreed by the authority’s CEO;

3. The request for approval has to be approved by the board of directors;

4. The request must be sent to the relevant ministry for approval;

5. That approval must be taken to Cabinet by the minister and get approval from Cabinet,

6. It has to get budgetary allocation approval by the interministerial finance committee (which should have been done at step three, but in case it hasn’t).

Then, if there is a collective agreement which requires it, the consent of the recognised union before going to the CPO (but only if the position is not a managerial position, because bargaining units consist of coverage of “workers” according to the Industrial Relations Act. Managers in the public service are governed by different legislation).

In the case I reported on last week, the employee represented by NUGFW was a “worker” when he applied (and the press source was wrong. Apparently he was still in the capacity of a worker when he first applied for the position).

But then it turned out that the position he applied for, that of manager, quality, in which he had been acting for five years (when you take off the “acting” part, he was still a “worker,” so eligible for union representation) did actually not exist, having not gone through all of the above-mentioned steps.

However, a memorandum of agreement between the authority and NUGFW signed on July 22, 2014, appointed the man who was caught in this mess to the manager, quality, position, although it did not formally exist.

The position of general manager, quality, did, and had been already filled by the authority, although that case was still before the RRCB. The MOU said the recruitment for that job when it happened would be open to the usual application process laid down by the authority’s policy manual.

This meant, if I understand the process correctly, if it ever happened, the former “worker,” now “manager,” would be eligible to apply for it. But that never happened.

Skipping a step, the authority did its own thing.

So how did the Appeal Court get into it?

Well, the IRA allows an appeal from the Industrial Court’s awards on:

1. A jurisdictional issue (eg if the IC did not have the remit to rule on a grievance involving someone who was not a worker at the time the issue first arose);

2. An erroneous point of law;

3. If the award was obtained by fraud, or

4. Some other illegality. You decide.

I cannot comment on what the Appeal Court’s thinking was. I was not in that court when it gave its verbal ruling and (cautious due to the egg on my embarrassed face) now unwilling to depend only on the press report, will be waiting anxiously to learn how it will turn out.

One way or another it will affect all stakeholders.

My money is on the Appeal Court.