Defying logic at work

Sometimes, an industrial court or tribunal can issue awards that defy logic or at least defy the logic of one or other parties to a dispute.

One of my favourites had to do with the vexed question of absenteeism or, as one of my early trade union mentors explained to me, "There is no such thing as absenteeism in industrial relations. There is only payment during illness. If there is no payment, there is no work to be absent from."

He had a kind of twisted logic that I was attracted to because, as a rebellious teenager, I was accompanied by an equally rebellious group of school friends – all teens who thought it would be appropriate if we were to be paid even if we were not working, as we were busy trying to figure out who we were supposed to be as adults.

None of us really knew, but we suspected our parents thought that they did. And parents were very similar to employers.

While visiting an aunt in Barbados, I met Maryanne, a 19-year-old, who had an actual job which paid a real wage.

She was a waitress at a touristy fast-food restaurant called Chefette – the kind of place where young people could afford to buy a Coke. I met her there every day.

She was envied because she appeared so grown up with a real job, but one day she didn’t turn up. When asked what had happened to her, we were told she had called her supervisor to report she was ill, suffering from a terrible headache and could not come in to work lest she spread germs to the other customers. That sounded proper and very responsible to the other teenagers. Her supervisor was only a year older than she was and we were impressed by her responsibility.

When we all left, we invited a couple of friends to come with us to grab something to eat at our favourite fish fry place. As we walked in, who did we see liming there? But Maryanne. She saw us and waved, but she did not see another of the supervisors from Chefette who followed a few minutes after, and who, on seeing Maryanne, turned around, went back to Chefette and reported her to the manager for lying about being sick.

Maryanne was suspended without pay for two weeks, more for lying about having the flu, than for being absent.

"No manager wants to have a liar on his/her team," her boss told her in front of everyone, when she walked in the next morning.

Maryanne, however, was a fighter, who went to her big brother – a trade union shop steward and complained the next morning.

The case went to the industrial court tribunal at the ministry of labour, which, to the astonishment of her employer, ruled it to be an unfair discipline since it noted that according to the leave provisions of their collective agreement, the hours she was absent that day would have been given without pay anyway.

But the main issue was her sick leave. While she was on sick leave during the day, the judge ruled she could not work as she was on authorised leave, but the hours that she was at the fish fry were not working hours so she could not be disciplined for working then.

In a different country, say TT, there is actually legislation which says:

– A worker who, by deception absents himself from his employment, is liable on summary conviction to a fine of $1,000 or imprisonment for six months.

– A medical practitioner who issues a medical certificate to any worker for the purpose of enabling the worker by deception to absent himself from his employment using the certificate is liable on summary conviction to a fine of $2,000, or imprisonment for 12 months.

– For the purposes of this section, a medical practitioner may be held to be guilty of an offence although the worker was not convicted or did not convict the offence under subsection (1), if, but only if in the circumstances of the case, the medical practitioner may reasonably be considered to have acted for such purpose as is specified under section (2).

– It shall be competent for the prosecution to adduce evidence of all the surrounding circumstances of the medical practitioner issued allegedly for the purpose of enabling the co-worker or other co-workers of the worker in question by deception to absent himself or themselves by means of such certificates and such evidence shall be admissible, notwithstanding any law to the contrary.

There is a catch, though. Or a savings clause. At least for the medicine men, if not for the workers.

The act states, "It shall be a defence for a medical practitioner to prove that he did not know and had no reasonable cause to believe that the medical certificate would be used to enable the worker by deception to absent himself from his employment using the certificate."

How do you prove that you don’t know something?