An honest day’s work for an honest day’s pay
The established principle stated in the title of this article was cited on page 16 of a recent judgment (ESD TD NOS 81 &82 of 2021) between the Public Services Association and Water and Sewerage Authority.
The merits of the case were quite interesting, and I totally agree with the court’s assessments and understood why it gave the award it did.
My concern, however, is that the award may send a wrong message to errant workers who misconduct themselves.
The facts surrounding the case were that two WASA workers, one with 18 and the other with 32 years of service, were dismissed for abandoning their jobs.
According to the judgment on page 20, one of these workers had actually applied for pandemic leave “until further notice,” which may have raised the presumption of “implicit intention” that the worker had abandoned the job.
One of the workers admitted to being on pandemic leave for 15 months, and still received her full salary while she did not work. Her excuse was that she could not find suitable childcare for her 13-year-old and ten-year-old children.
Added to this, with monthly earnings of $22,799, she claimed she did not have a computer to access the company’s server at home.
She also indicated that for some years she had applied to be transferred to the Chaguanas branch. However, when this was eventually offered to her as a means of getting her back to work, she still refused to do so.
The other worker applied for pandemic leave for 14 months and during that time worked from home for approximately only three months. Her reason for not returning to work was that she too could find no suitable care for her two minor children.
In its reasoning, the court asked and answered the question whether WASA acted in a manner consistent with the principles and practices of good industrial relations. The court concluded that it did “to a very large extent.”
Where WASA erred was in saying to the offending workers that it would initiate job-abandonment proceedings by a deadline date if they did not report for work, then, without any further steps, on the next day, issued termination letters.
The court found that given that WASA knew where the workers lived, it should have invited them and their representatives to disciplinary proceedings, even though WASA allowed them to appeal their dismissals. Because of this failure, the court held that it breached the principles of good industrial relations practice.
Now, many people may believe WASA was right to dismiss the workers, as it made several attempts to negotiate suitable work arrangements with them, via written correspondence which the workers ignored. These workers were being paid substantial salaries and doing no work for more than a year.
However, as the old saying goes, it is not what was done, but how it is done. Dismissing the workers on the day after the deadline cannot be consistent with initiating job-abandonment proceedings, although such proceedings themselves may have been misconceived.
It is, however, very clear in my mind that these two workers deserved to be dismissed, and that may be the reason the court refused the PSA’s request to reinstate them.
They would have both received a March 20, 2020 circular relating to pandemic leave; then in December 2020 further work-from-home arrangements were offered to them.
WASA reached out to one employee twice in March 2021, asking her to return to work, then offering her reduced work and extra work from home, yet she failed to report to work. Both workers received notices on May 3, 2021 that if they continued to withhold their services, their absence from duty would be treated as unauthorised leave without pay.
Neither reported for work, and yet they continued to be paid, despite not working. This was indeed a waste of taxpayers’ money, and someone in WASA’s HR department should be held accountable.
They were written to yet again in June 2021, when they were offered flexi-time and possible work from home, and advised that they had a deadline to contact their supervisors. By letters dated July 23, 2021, they were reminded that WASA had been attempting to find suitable arrangements for them to continue work, and yet they continued to withhold their labour. They were given another deadline to contact their supervisor or job-abandonment proceedings would be initiated against them. The day after the deadline expired, WASA terminated their services.
However, on the same day the PSA wrote on behalf of one of the workers asking for a meeting and subsequently wrote on behalf of the other terminated employee.
The court awarded both workers a total of $800,000 in damages.
The court noted that the workers were aware that their absence placed a strain on the authority’s resources, and they received their full salaries for over 12 months when they did not work. This puzzled the court, as continuing to pay them grated against the principle of “an honest day’s work for an honest day’s pay.”
The authority, therefore, failed to appreciate the significant difference between the IR concepts of unauthorised absence and job abandonment. The workers could not have abandoned their jobs, as they never intended to leave without notifying the authority.
WASA knew where they lived and was aware of their reasons for not attending work, as misguided as those were. They therefore were simply absent without authorisation, and that would have been a dismissible charge, which they should have been required to answer.
I have time and again advised clients that failure to ensure all the details in the proverbial procedural boxes are duly checked off before dismissing a worker will expose them to great risk of adverse awards before our Industrial Court.
This judgment cements my view that the court is not pro-worker, as many proclaim, but is indeed fair and balanced in applying the principles of good industrial relations practice.
"An honest day’s work for an honest day’s pay"