What is constructive dismissal?

Before the Industrial Relations Act (IRA) was passed in 1972, most parties aggrieved over what they considered to be an unjust or unfair dismissal only had three choices – get their fellow workers to go on strike in their support; ask for a second chance; or look for another job.

Before the passage of the predecessor 1962 Industrial Stabilisation Act, the employer was at liberty to dismiss an employee for whatever reason he wished. He didn’t have to give his reasons for the dismissal or justify it.

After the passage of the 1972 Industrial Relations Act, with the establishment of the Industrial Court, laws changed, and any dismissal the court considered to be harsh, oppressive, unreasonable or unjust could be subject to a court order for reinstatement, re-employment or compensation.

Over time, the act underwent many adjustments and the criterion the court now uses is whether the dismissal is “harsh and oppressive or not in accordance with the principles of good industrial relations” and can “make such order or award in relation to any dispute before it, as it considers fair and just, having regard to the interests of the persons immediately concerned and the community as a whole.”

Parties to a dispute know that IRA Article 18 (1) states: “Subject to subsection (2) the hearing and determination of any proceedings before the court and an order or award or any finding or decision of the court in any matter (including an order or award) – (a) shall not be challenged, appealed against, reviewed, quashed or called into question in any court on any account whatever; and (b) shall not be subject to prohibition, mandamus or injunction in any court on any account whatever.”

That is one of the most powerful statements to be found in any law in the canon in any jurisdiction anywhere.

However, the environment has changed since 1972. Justice Isaac Hyatali, who called the Industrial Court “not so much a court of law as a court of human relations,” through his wisdom and knowledge, taught a whole country what is meant by “principles and practices of good industrial relations,” and restrained the authoritarianism of managers who dismissed employees who were impolite or bad-tempered, just short of being insubordinate.

I remember being in court, sitting politely at the back of the room, trying to restrain myself from grinning when listening to a dismissal case in which a worker was terminated for steupsing in response to an admonition by a general manager who was offended thereby.

Over the years, the industrial-relations climate changed, along with the introduction of the GATE system, providing legal education to students hitherto unable to enter law school.

Transport facilitation has also changed, enabling hundreds of thousands of foreign-used vehicles into the country, making travelling to work and school an hours-long nightmare for thousands of people and latecoming, a rule broken by students and employees, punishable by disciplinary action.

The old rules about timekeeping had not shifted in schools and factories, though, and made life a misery for children, building up demerits they could not change and late-coming records for employees without their own vehicles.

Ironically, cases for termination for excessive latecoming piled up before the Industrial Court, where judges frequently kept parties to disputes waiting to be heard owing to their own latecoming.

As the years went on, more and more students graduated from law school, oversupplying the ranks of available lawyers until they began to enter the labour law field – which was not as lucrative, but what was a new graduate to do?

The UWI law graduates were not practised in labour law, and many of them did not regard the Industrial Court as “a real court,” as one of them once said to me.

In the beginning, the concept of good industrial-relations practice, since it did not form part of their studies, was confusing and they lost many cases to experienced trade-union advocates, on contract law only, and ignoring the human-relations aspect established by Hyatali.

But the new contingent of lawyers trained in law noticed a gap favourable to their clients, and, without having to stray from sub-section (2) which said, “Subject to this act, any party to a matter before the court is entitled as of right to appeal to the Court of Appeal on any of the following grounds, but no other (there followed five sub-clauses),” began to turn clients to the civil courts.

Anyone who has sat and listened to a civil case being argued in a magistrates court will shortly realise attorneys, like politicians, are practised in making words mean whatever will benefit their cause or their client’s case.

They will have also noticed that there is a vast market in the public service for grievance-handling over employment matters.

Secondly, they cannot help but notice that the civil courts give awards in cases of unjust or wrongful dismissal vastly exceeding awards in the Industrial Court.

The latter, arising from common law, could award compensatory awards considerably higher than any allowed by the Industrial Court.

In that court, initially the protagonists were a trade-union representative on one side and an employer’s representative on the other side, neither of them attorneys-at-law who charged fees outside the reach of the original practitioners whom the Industrial Court was established to serve.

That changed with the NPMC strike, when almost the whole staff of National Petroleum downed tools without observing the statutory provisions under Section 60 of the IRA. They were all fired, in accordance with Section 63 (1) C for unlawful industrial action.

The OWTU brought in the two best labour lawyers in Trinidad and Tobago to cleverly defend the down-tools action, which was technically actually contrary to the law, and the court forgave the action and reinstated them.

Shortly after that, the employment contract of one of the top executives of the Central Bank was terminated, for a reason and in a manner that he considered wrongful as well as unfair, and instead of taking up his grievance through the Industrial Court, which is not available for managers’ grievances, he went through the civil courts and was awarded several million dollars in compensation.

This stirred up many other cases by employees able to afford lawyers’ fees for what are known in law as constructive dismissals.

Next Thursday, this column will examine some of the cases brought to both courts for constructive dismissal, on which grounds they were accepted, and on which denied.