Face your accuser: the right of confrontation

Fighting a case in court – criminal or industrial relations – may be fraught with difficulties and may be won or lost not on the basis of ethics or morality, but by the verbal skills of the lawyer involved, the advocate for the prosecution, or, indeed, on the temperament or personal experience of the presiding judge.

Books have been written over centuries about the effect on the subsequent course of justice and the subsequent reputation of the legal profession, depending on one of these.

When someone is outside the possibility of attaining a remedy to a perceived injustice in the social history of TT and decides to resort to revenge instead, rather than use violence “expressed or implied, oral or in writing” as the Industrial Relations Act (IRA) puts it, Trinis have used a far more effective method…calypso, which uses the weapons of ridicule, sarcasm and innuendo.

One of the most fundamental principles of natural justice, now passed into constitutional law not only in the Commonwealth, but also in most states of the US, is the right of an accused person to defend themselves against an accusation, particularly but not exclusively when it could lead to penalties as severe as life sentences, termination of employment or death.

This includes the right of confrontation, absent from the judicial systems of dictatorships, but a fundamental and cherished principle of democracy.

The Mighty Sparrow, a poet in his own right, like Shakespeare, was a genius in targeting human weaknesses, hypocrisy and the underbelly of society.

You will remember his unforgettable calypso That is All. If you don’t, look it up, as it paints the unforgettable defence he used when a witness told his wife she had seen Sparrow at the beach lying on top of a young woman, gyrating.

His defence was that a vicious Africanised bee had landed on her and he had bravely flung himself on top of her to protect her.

"That is all, that is all, that is all" – and as ridiculous as it was, the lesson he was teaching, in true Sparrow style, was that lies can be seen through, like those of any dictator.

If this had been an industrial-relations case, under the principle of confrontation, he would have had the right to confront the witness in court, where he could cross-examine her to uncover the truth.

Or not, as the case may be. He also had the right, if he knew he was guilty, just to remain silent.

In industrial relations, it is the right – and it is known as a right of confrontation – the right of the accused to face the accuser’s witnesses and dispute the witnesses’ testimony.

This does not have to be done as part of a formal organisational disciplinary procedure, and I will go into why in a moment.

The law is clear that the attempt to sort out the grievance, if unresolved otherwise or done bilaterally, must go to the Labour Ministry for conciliation, or to the court.

And in order not to face the ridicule of co-workers, for example in sexual-misbehaviour cases, I have encountered people with courage and the desire not to be exposed to apologise and silently accept the consequences of their follies.

People do, however, give false statements in court to defend themselves against facing the penalties outlined in the law. Sometimes it works briefly, but there have been cases in the past where the court was not persuaded, and people faced the wrath.

In one recent award, the Industrial Court made pellucidly clear the principle of good industrial relations in relation to the right to be heard.

In Section 52 (h) of award TD630 of 2018, it said: “It is a fundamental principle of natural justice that a worker should have the right to face his/her accusers."

In Section 50 it said, “As stated in Trade Dispute No 223 of 2007, while an employer has a duty to ensure that an employee is afforded the opportunity to be heard, the procedure to be adopted at the hearing is not to be formal in nature as in that of a civil court. It follows that parties to an enquiry need not always follow the strict rules of evidence as in a court of law."

There are instances, where the aggrieved person is not a member of a trade union, where they will opt to bring a fellow employee as a witness or to help them to plead their case in the company’s internal enquiry.

The employer will usually allow this, but must keep in mind those stipulations. The lawyer whom the non-unionised employee brings in these cases is not there in the capacity of an attorney in a court of law, but an advocate in an internal organisational enquiry. He cannot demand (although, because his training inclines him to do so, he often does), to quote the award in TD No 630 of 2018: "A request by the union for exhibits to be produced, labelled and marked," because, the court said, this "seems to place unnecessary restrictions on the inquiry process and does not augur well for industrial relations."

There is one exception to the face-to-face right of confrontation, and that is often where it involves a more junior employee being abused by a senior manager and the junior is too intimidated by his authority and power to be able to participate meaningfully in a confrontation.

I have dealt with several cases where a young woman was sexually harassed by a senior manager. In another case, the victim was a professional male. They were severally both so frightened and ashamed of people blaming them for the damage to their reputations and the potential loss of their jobs that they didn’t know what to do.

In the first case the HR manager was female, found the victim crying her eyes out in the ladies' toilet and, digging out the cause, blew the whistle.

In the second, the victim was older and was able to explain to the male HR manager why he was not psychologically able to face the public exposure of confrontation in an open court. In that case they were able to settle the matter bilaterally in conciliation.

These are human rights, not necessarily legal ones. In TT, for example, there is no legislated prohibition against sexual harassment at work, on the sports field or in religious organisations, where such emotionally damaging abuse most often happens.

With the assistance of a trusted colleague, confrontation before an impartial mediator can take place. Mediation is available for free, but as people seldom know about it or how to access it, it is a right that exists more in the breach than in the observance.

It should be recommended as part of the recognised principles of good industrial practice.