Reasonableness in industrial relations

The term “reasonable” is often used in industrial relations, particularly in reference to actions or reactions to trade disputes and gives rise to the question, which, if a decision is to depend on it, seems to be a “reasonable” question: “What, exactly, is ‘reasonableness’?”

It was used, for example, in Industrial Court Award TD 175 of 2000, speaking of the obligation of an employer not to refuse the request of a worker who has been given 45 days’ notice of retrenchment, for “reasonable” time off from his job in order to explore the possibility of alternative employment.

This seemingly vague concept, “reasonableness,” comes from English common law, on which much of our labour law was originally based. It is often explained by using the circular definition: “reasonableness is what is reasonable to the reasonable man,” which to most people sounds like robber talk.

"The ‘reasonable man’ is a fictional person with an ordinary degree of reason, prudence, care, foresight, or intelligence whose conclusion, or expectation in relation to most things is used as an objective standard by which to measure or determine something."

This could be whether an act was negligent – such as failure to make sure a turbine had no one inside cleaning it before turning it on, for example, or a failure to clean up an oil spill on stairs used by employees.

So what it comes down to is “what could be considered reasonable in the circumstances?” Or would the average person on the Brian Lara Promenade think that, in the circumstances, the action of the employer or the employee was “reasonable”?

So the standard of the reasonable man is really “common sense,” intended to be impersonal and independent of the person who is accused of negligence, and independent of the accuser’s emotional state.

As a result, Section 16 of the Retrenchment and Severance Benefits Act gives the responsibility of deciding on “reasonableness” to the Industrial Court or the Recognition Board where it is in dispute, as would a matrimonial court have the responsibility where it is a domestic issue.

What, then, to “take in front before in front takes you,” should a reasonable employee expect from a reasonable employer?

First, the employee should expect the employer to honour the terms and conditions of the contract or letter of employment, usually set out in or alongside the collective agreement and the policy and procedure manual (if these exist), as well as provisions set out in the labour legislation of TT and any promises made during the recruitment process.

An employer is also expected to understand that although it is not expressly stated in the Industrial Relations Act, employees, under common law have certain “reasonable rights” such as:

• Once fairly employed, the right to a job and to the remuneration agreed upon, subject to the law and to the employees’ agreement to change.

• The right to expect an employer to take “reasonable” care for the safety of all employees and to provide the necessary material and psychological conditions in which to work.

• The right to know what is expected of them and what the consequences will be of not meeting those expectations. This will include performance standards, as well as behaviour, attendance, timekeeping, no fighting on the job, etc.

It is simply “unreasonable” to cancel someone’s right to a job once they have been hired in good faith, on the grounds of non-performance, if they are not told what they are expected to do.

Usually, however, the procedure for discipline for poor performance is distinct from the disciplinary process for breaking rules of conduct.

• Where someone is charged with a violation of rules, that is, for misconduct, the right to a fair and progressive disciplinary process should be applied after fair investigation into the facts

• Where the charge is one of poor performance, the process will include a chance to learn, improve and correct one’s behaviour and "reasonable" time in which to do so.

• The rules for misconduct can range from a refusal to obey a "reasonable" order (defined as one which will not endanger the health or life of the employee or damage their professional reputation) to discipline for criminal acts which demand summary dismissal such as theft, sabotage, violence, sexual abuse, fraud, etc, and as laws of the land, which it is assumed will be known from the time of employment.

• The right to defend oneself against an accusation, whatever the charge.

• The right to appeal a disciplinary decision, and someone to appeal to, except in very small establishments where the manager is a sole employer, accuser, “judge, jury and executioner,” and any appeal may have to be made to his or her conscience, or to the Ministry of Labour.

Employers also have "reasonable" rights:

• The right to expect from all employees a fair day’s work for a fair day’s pay: to expect, once the terms and conditions are agreed, that they will be carried out.

• The right to expect that the employee (including managerial and professional employees) has the skills, experience and abilities claimed during the recruitment process, and will take “reasonable” care in carrying out their responsibilities.

• The right to expect “reasonable” knowledge and understanding prior to employment: literacy, numeracy, how to get to and from work, basic understanding of the law. The employer does not need, for example, to give employees written rules against wounding, murder, drug-taking on the job, libel, slander, wilful sabotage etc). It is implied that any adult over the age of 18 knows these civil obligations and accepts them as the responsibilities of a citizen.

• The right to expect honesty and what the common law calls “fidelity,” a term implied in every contract of employment (including those of managers), to keep confidential information confidential, not to serve competition, and to handle property honestly.

This list is not exhaustive, and it is important to remember the admonition of Sir Isaac Hyatali, the first president of our Industrial Court, that every word in a contract counts.