The test of 'reasonableness'

Diana Mahabir-Wyatt

Looking back over the heatwave recorded in August and September, now that it is cooling a little, it is hard to be grateful for the sun last month.

Traditionally one of our hottest months, when the thermometer hits the high eighties or low nineties – even if the nice man on TV tells us that in Phoenix, Arizona it hits 104 degrees F, or in Vancouver and Toronto, where hundreds of Trinis live, and hundreds more aspire to live – it had risen daily to the high 80s, which we are genuinely not accustomed to.

So the question arose, as it does, about what can be considered “reasonable" in terms of working conditions?

How do people stand working on the highway in the hot sun selling bottles of water? Or in agricultural settings, cutting cane?

When it is your own enterprise, you just do what you have to do. But when you are working for someone else, the standard of reasonableness presents itself.

In agriculture, it is known as the size and forcing of a task: how much cane must be cut within what time, for example.

How far can the test of reasonableness extend?

My concern focuses on the employees’ reaction to a manager’s perception of what is reasonable.

Entrepreneurs have to decide that for themselves. Being self-employed means you seldom have a day off, and "reasonableness" depends on your abilities and determination.

Managers of employees are expected to apply the test of reasonableness to what they ask their employees to do. If employees don’t agree, they always have the option of refusing and being fired and going elsewhere to work.

Supervisors, however, are given standards for those they supervise to attain, making those targets is the art of leadership. How they lead depends on reasonableness. Employees rebel against a bullying manager.

Resentment is as infectious as the virus. And it gives rise to the question: "What does a company do when it is not the supervisor or manager who is intent on dismissing an employee, but employees who are intent on dismissing a supervisor or manager?"

The problem is seldom the targets set, but the leadership abilities of the person who sets them.

Cases are being quoted from various associated jurisdictions where labour laws are based on common law.

Example one: In a rather large and unionised vehicle maintenance and repair organisation, an entire department of men took illegal strike action with a garage full of expensive vehicles to repair.

They threatened to continue if a senior supervisor was not fired. He was facing a criminal charge for raping and impregnating his 12-year-old daughter, and the other men in his department (mostly family men) refused to work with him or follow his instructions out of moral repugnance.

The offence is not related to his employment: it took place outside the company premises and therefore is not listed in the company’s code of conduct.

He has not yet been convicted, and the case is probably not going to face the court in our very slow judicial system for a long time (it may take years).

A labour lawyer he hired to argue in his defence pointed out that in industrial relations, as in civil and criminal law, a man is innocent until proven guilty, and therefore he cannot be dismissed.

In an in-company inquiry – where, according to good industrial relations practice, he was given a chance to give his side of the matter and say why he should not be dismissed – he claimed he was not guilty of rape, it was consensual, she is a promiscuous girl.

How should the company treat the illegal strike action?

Example two: A group of workers in a commercial medical company have petitioned their general manager (not a doctor) to terminate the employment of a doctor who is their direct manager.

There are two streams of authority, one the medical stream, with orderlies, junior doctors/interns, laboratory and x-ray technologists, and senior medical specialist staff.

The other is the administrative stream, which includes finance, procurement, human resources and maintenance.

In the dispute, a group of employees in the medical-technology stream, separately and together, have written to the owners of the company – who are mainly medical specialists practising in or retired from the company, with no industrial-relations or management backgrounds – demanding the removal of the senior physician.

They claim the physician is a bully, changes their shift schedules at the last minute without consulting them, promotes junior staff trained in medical technology with less service over longer-serving medical employees, and threatens to terminate their contracts (only senior doctors are on permanent employment, all others are on contract) if they do not obey his reasonable orders.

The internal investigation meeting in this case was headed by an external consultant, since the targeted manager was the head of the medical department with responsibility for dealing with staff grievances.

At that meeting, both the medical protesters, accompanied by their chief of medical staff and the company's chief of administration, to whom the senior physician reported, remained adamant that their authority was the most essential and must take priority.

They did not approach it from a problem-solving angle but from a challenge to authority.

There was no trade-union guidance mentioned. The company is not unionised. Staff are paid above market rates, with above-average benefits.

Existing judgements for unfair dismissal envisage employers firing employees without following lawful procedures or good industrial-relations practices, but there are no correct or lawful procedures established in legislation or awarded by the Industrial Court for workers to fire managers, since they do not hire them.

As in the judgements for constructive dismissal which are still often being misunderstood by both employers who are the accused and employees who are the claimants, powers and authorities of stakeholders in relation to constructive dismissal are often unclear even to industrial-relations practitioners.

In an era when socio-political industrial relations are shifting, internet media influence booming, and laws normally take up to four or five decades to adjust, as they do here, this can lead to organisational disruption and a loss of financial expectations.

If you were the CEO, what would you do to save the company’s reputation?

As practitioners know, Industrial Relations exist within an ever-fluctuating framework of politics, social change, environmental shifts, media influence and educational opportunities or lack thereof. As a result, organisational policies and sometimes procedures, need review and if appropriate, revision annually in order to deal with contingencies such as these.

Don’t wait for laws to change. They won’t. As your accountant will tell you: "Prevention is better than cure."