Sat | Aug 19, 2017

Orville Taylor | Horse manure! CTL galloping too fast on terminations

Published:Sunday | August 28, 2016 | 8:00 AM

The law is an ass, not a horse, although many 'neighsayers' at Caymanas Park pronounce them as if they were homophones. I don't know how much of a gambler my friend, Shane Dalling, deputy chairman of Caymanas Track Ltd, is, but he may have played a hand of cards or dominoes that may cause his bet to go bust.

Dalling, the greenhorn newly icy-minted chief executive officer (CEO) appointed in the wake of the dismissal of Cedric Stewart, has demonstrated his seriousness and decisiveness in terminating the employment of 16 workers who had an industrial dispute with the company.

Here, the operative word is 'dispute', which means a known disagreement between employers and their workers or representatives over any of a range of issues. Section 2 of the Labour Relations and Industrial Disputes Act (LRIDA) lists them. In short, as long as workers believe that there is something that affects the rights of any worker, including prospective workers, current workers have a right to be aggrieved about it and pursue it under existing grievance procedures.

An accepted principle in industrial relations and labour law is that management has a right to manage. Of course, management prerogative includes hiring, firing, deployment of staff, and training. However, workers have every right to disagree with any decision of management. Thus, one can describe workers who object to how training is going to be allocated as 'bright', presumptuous, or acting ultra vires, if one wants.

Nonetheless, the workers can treat it as fodder for a dispute within the confines of the LRIDA. This is the law, which began as a bill, ushered into Parliament in 1971 as the Industrial Relations Bill under the leadership of Hugh Lawson Shearer, then prime minister of Jamaica and leader of Dalling's own Jamaica Labour Party.

Our LRIDA was born out of the principle that there should be no dictatorship of employers. As regards industrial action, it must be recognised that the withdrawal of one's labour is a breach of contract. Yet, breaching one's contract is not the same as abandoning one's job. There have been several cases, both British and Jamaican, that underline this tenet.

 

RIGHT TO MANAGE

 

And in a book chapter co-authored with retired attorney and former member of the Industrial Disputes Tribunal (IDT) Clinton Davis, and in my own text, Broken Promises: A Century of Betrayal of the Jamaican Working Class, the information is hidden in full view. More lessons in labour law and industrial relations are contained in Natalie Corthesy and Carla Anne Harris-Roper's exhaustive book published two years ago.

Often times, management, in exercising its right to manage, terminates workers under redundancy conditions, where the requirements for their labour have diminished. Yet, even in those situations, it has been determined in the high court that it is still possible for a dismissal to be unjustified and the redundancy spurious. In other words, one cannot simply purport or imply redundancy. It must be concretely proven. A rule of thumb is that where workers are fired because of alleged redundancy, the positions and job functions must have disappeared or have been substantially revised.

Beyond all of that, there is something called the rules of natural justice. By no means a complete list of their provisions, these include i) a right by the worker to be made clearly aware of any perceived misconduct; ii) the opportunity to defend himself/herself against such charges; iii) an entitlement to be represented; and iv) being able to appeal to a level of oversight that was not previously involved.

These are common-law principles developed by high court judges over aeons. Moreover, our own legislators used Section 3 of the LRIDA to introduce the Labour Relations Code in 1976. This code, in Sections 21 and 22, reinforces the principles and outline in detail grievance and disciplinary procedures.

Our IDT is a unique entity which, unlike the higher courts, has the power to reinstate dismissed workers where it finds them to be unjustifiably dismissed. Mark you, even where a contract has an exit clause or where workers 'walk off their jobs' in 'furtherance of an industrial dispute', the IDT can still find that they were wronged.

True, there are suggestions that a small number of workers possibly sabotaged the database of CTL, costing it millions in losses. Inasmuch as it is a no-brainer that workers must have the ability to do economic harm to their employers by withdrawing their labour, nothing gives them the right to wilfully destroy property of their bosses.

Indeed, such acts are criminal, and, where found to be so culpable, the miscreants are liable to punishment. For me, saboteurs belong in battles where there is war on the front lines. However, they must be given due process and their guilt determined in a just way.

Nevertheless, even in cases where the employer has the handle and the workers are holding on to the blade of the katana, discretion is the better part of valour. It is simple logic - not because one has the right to do something does it mean that it is prudent for that to happen. Often, enforcing one's right to wield the sword leads to a pyrrhic victory, and in spiting the face, the nose is removed or severely injured.

Something is very repugnant about the sequence of events at CTL, and I sincerely hope that good sense, if it resided there at all, will prevail. My ears were piqued when Dalling, as board member, would apparently have been part of the decision to remove Stewart. I might be peeling oranges here, but something is nasally irritating about a board deputy chairman, who is trained in the administration of justice, helping to eject an incumbent and then in short order becoming the replacement for the very same worker whose exit clause he triggered.

Something about the abortion of the contracts smells like a miscarriage of justice.

Somebody needs to find Shearer's notes. Perhaps the former trade unionists in the House of Representatives might help.

- Dr Orville Taylor, senior lecturer in sociology at the UWI and a radio talk-show host, is the author of 'Broken Promises, Hearts and Pockets'. Email feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.