A Case Summary of:

Rambally M.

1

This Dispute concerns "the termination of services of Mr. Akesh Poonoo Tahadil effective 13th October, 2009." Party No. 2 ("the Company") orally terminated Mr. Tahadil ("the Worker") having found him guilty of being insubordinate to the Executive Director on the 3091 September, 2009 and inciting fellow workers to withhold their labour during the period 28th September to 2nd October, 2009. The decision to terminate was taken following a meeting with him on the said 13th October, 2009.

FACTUAL MATRIX

2

The Worker was first employed with the Company on the 18th October 1999 as a trainee Mill Floor Operator and at the time of his dismissal on October 13th 2009, he held the position of P5 Pulpit Operator "A" Class.

On the 12th November, 2008 the Company issued a suspension letter to the Worker. According to this suspension letter the Worker orally abused and threatened to slap a HSE Officer. A meeting was held on the 5th November, 2008 between Company Officials and Representative of the Union as well as the Worker, following which the Company suspended the Worker for three weeks.

On the 25th June, 2009 the Company warned the Worker for failing to conform to safety rules on two occasions. A warning letter was issued to the Worker and the Worker never challenged its issuance.

According to the Union, sometime prior to the 29th September 2009, the Worker advised his supervisor that his safety boots was worn-out due to wear and tear. The Safety Officer told the Worker that a recommendation was made to requisition a new pair of safety boots but up until the 30th September, 2009 he continued wearing the old boots. The Worker gave a long narrative of what occurred in relation to obtaining a new pair of boots in his evidence. At the end of the day he obtained a new pair of boots and he had no further complaints in this regard. However it was during this "boots" saga that the facts and matters relating to the first complaint of the Company arose.

INSUBORDINATION

3

According to the Company's letter of dismissal,

"Pertaining to the matter of insubordination against an officer, you stated that on Wednesday 30th September 2009 you went to the Stores Department knowing that your order for a boots was not received, but you knew that they had a sample pair of boots from a supplier that was your size. You admitted that you knew Mr. Bhagwansingh was the only person to sign Purchase Orders for any item. Mr. Bhagwansingh was therefore contacted about the situation and he returned a call to the stores and asked to speak to you. You on the other hand, speaking loudly in the presence of Mr. Thomas and Mr. D. Chattoo, and heard by Mr. Bhagwansingh, stated: Who is Trevor? I don't want to speak to him, if he want to speak to me why don't he come to Centrin to speak to me. And furthermore, I don't need to speak to Trevor I already speak to my supervisor Mr. Thomas, because when I want to talk to him in his office he does not want to talk to anybody, also, he never around.

These comments were confirmed by a written statement from Mr. Chattoo and verbally by Mr. Thomas in your presence at the meeting. You further added that: if Trevor want to see my toe, take a picture and send it to him. After you were cautioned that you were being insubordinate in making those comments and not talking to the Executive Director, only then you took the telephone and spoke to Mr. Bhagwansingh..."

3.1

The Worker was inconsistent in his evidence on this issue. His demeanour did not give us the impression that he was telling the truth. In his examination in chief he stated that: "when I went there to collect my boots, he walked in at the same time. Mr. Chattoo was there on the phone, speaking to someone. He looked at me and said, Mr. Trevor would like to speak to you. I told him, I don't want to speak to Mr. Trevor. I already made all my reports to my supervisors. I am here to collect a boots. Mr. Oscar Thomas walked in at the safety stores... At the Stores, sorry, and Chattoo looked at me again and said, Mr. Trevor Bhagwansingh would like to speak to you. I said I already went through the channels. I don't need to speak to him. Oscar Thomas told me, you need to speak to him because that's insubordination. So I took the phone and I explained exactly what happened to my toe and heel with the boots..." [Taken from the transcript of the Worker's viva voce evidence in chief] We now quote the evidence elicited from the Worker during cross examination [Verbatim Transcript of the cross examination of the Worker] in a fair amount of detail so as to not only illustrate the Worker's conflicting statements but to also portray his manner of answering the allegations levelled against him. He gave the distinct impression that he was making up a story as he went along. Q. So at the conversation with Mr. Chattoo, Mr. Chattoo indicated to you that he had Mr. Trevor Bhagwansingh on the phone during that conversation, yes? A. No. I walked into the Stores Mr. Chattoo was already on the phone. Right. I was changing my pair of boots with the new pair of boots. He looked at me and said, Mr. Trevor would like to speak to you. I told him, I don't want to speak to Trevor. I already went through the normal channels that you go through to get a pair of boots. Q. Right. Hold on a second. You know who Mr. Trevor Bhagwansingh is? A. Mr. Trevor Bhagwansingh, yes. Q. What position does he hold in the Company? A. He is the Manager of the Company. Q. Would you consider Mr. Trevor Bhagwansingh...would you consider him someone you take instructions from? A. Yes Q. Would you consider him your boss? A. Yes Q. So when you were told by Mr. Chattoo, that, ... Let's get the context of this conversation, right? You are with Mr. Chattoo in the Stores Department, right? A. Yes. Q. Mr. Chattoo is saying to you that, Mr. Bhagwansingh is on the phone and he would like to speak to you, yes? A. He did not say, Mr. Bhagwansingh. He said Trevor would like speak to you. Q. You understood Trevor to mean Mr. Trevor Bhagwansingh? A. Not necessarily. Q. Oh. All right. In that conversation with Mr. Chattoo, when he said, Trevor would like to speak to you; did you say, who is that person? A. No, I did not. Q Did you understand it to be Mr. Trevor Bhagwansingh? A. No. Q. Okay. Did you ask him then, who is that person? A. I did not. Q But you went on to say, "I told him I don't want to speak to him" correct? A I said that, true. Q. Now, you told him you didn't want to speak to him. Can you tell us who you were referring to when you said to Mr. Chattoo, "I did not want to speak to him". Who you had in mind? A. Well, he says its Trevor right. I don't know who it was, so I told him I don't want to speak to Trevor, my exact word. I don't want to speak to Trevor. I went through my channels. I am here to collect a pair of boots. Q All right. Before we get to... we are on the part of that response, the part of your evidence where you said, I didn't want to speak to Trevor A. Right Q. I just asked you, if you understood the use of the word, "Trevor" to mean, Mr. Trevor Bhagwansingh and you said, no? A. Well I didn't know it was Bhagwansingh Q Right I will give you an opportunity to tell me again. When Mr. Chattoo told you that Trevor is on the phone, did you understand him to mean it was Mr. Trevor Bhagwansingh? A. No. Q. So when your response was, I told him I don't want to speak to Trevor... your response was not, who is that? You agree? You did not ask him that? A. I didn't ask him, who is that Q. So that suggests to me that when you told him, I did not want to speak to Trevor, it suggests that you had somebody in mind? Am I correct or am I wrong? A. No, I had no one in mind Q. You had no one in mind? A. No. Q. Okay. Would you agree that you have never said to anyone up until now, that you did not know it was Mr. Trevor Bhagwansingh on the phone? A. Not at the point in time when the conversation was going on... Q. Hold on. Focus on my question. A Sure Q. My question pertains to now, March 15th. You have not said to anyone, prior to today, that you were unaware or did not know that when Mr. Chattoo said, Trevor is on the phone, that you did not know it was Mr. Trevor Bhagwansingh? You agree? A. That's true 3.2 The Worker was the only witness for the Union. One of the witnesses for the Company was Mr. Wayne Wong, the Human Resource Officer. Mr. Wong testified that he was the Human Resource Officer of the Company for almost 29 years and he was the author of the several correspondence issued to the Worker including the letter of dismissal. Mr. Wong was forthright in his evidence. He presented himself as a witness willing to assist the court. During his cross examination, he remained unshaken and his evidence accorded with the documents which emanated in this Dispute. He did not give us an inkling that his evidence was motivated in any way by loyalty to or fear of the Company. As a consequence we preferred the evidence led on behalf of the Company as opposed to that of the Worker.

4

In order for any employer to successfully carry out its business, it must have the cooperation and understanding of its employees that lines of authority will be kept, that reasonable orders will be followed, that supervisors will be respected and their authority will not be undermined. Insubordination does not only refer to situations where an employee swears at an employer or engages in overt acts which jeopardise the employer's interests. It can also occur by way of a single act which displays an unjustified disregard for authority and/or has the potential to disrupt the employer's work routine.

5

In the instant Dispute, the history of the conduct of the Worker is that he orally abused one of his supervisors then threatened physical harm to him (the supervisor) and on other occasions failed to obey Company's Safety Rules and Regulations. On each occasion, he was warned and advised that further disciplinary infractions would result in dismissal. Even after such conduct, the Worker was rude and insubordinate to a personality in authority over him. This was not an instance of mere protests or dissatisfaction. The Worker in the presence of his immediate supervisor, Mr. O. Thomas and another employee at the Stores Department, displayed an unjustified disregard of proper authority in the person of the Company's Executive Director, Mr. Trevor Bhagwansingh.

INCITING FELLOW WORKERS TO WITHHOLD LABOUR

6

We do not deem it necessary for the purposes of this judgment to delve into the details pertaining to this issue in light of our findings on the insubordination issue. We would point out that the Company produced statements of two fellow workers, Mr. Jairaj Mangaroo and Mr. Teemul Lochan to support its contention on this issue. Mr. Teemul Lochan gave evidence before us and he presented himself as a truthful witness. Having carefully considered his evidence and demeanour coupled with the evidence of Mr. Wong, we preferred the evidence of the Company over that of the Worker.

WAS THE WORKER DENIED A FAIR HEARING?

7

The Union argued that at no time between the 30th September 2009 and the 13th October 2009, did the Company inform the Worker that a complaint was made against him or that an investigation was being conducted concerning any allegation made against him. Further still, the Worker was not informed during the said period that disciplinary proceedings were being contemplated against him for misconduct of any kind." The Company also failed to inform the Worker in writing that disciplinary action was being taken against him and the allegations being made.

7.1

The Worker agreed during cross examination that a meeting was held on Tuesday 13th October, 2009 at 3:15 pm. The persons present at the meeting were, the Company's Executive Director, Mr. T. Bhagwansingh; Mr. O. Thomas (Worker's Supervisor); Mr. T. Khan, Union Branch President; Mr. R. Ramdoolar, Union Shop Steward; Mr. Wallace, Security Officer who took statements from Workers (Teemul and Mangaroo) and Ms. V. Bowlah, Secretary. Mr. Teemul Lochan and Mr. J Mangaroo attended the meeting as well. The Worker further agreed during cross examination that the meeting was called to deal with two disciplinary matters against him and those matters were read out at the meeting by Mr. Wong. Statements were presented and the Union Officials asked questions. There is no evidence whatsoever from the Union that it was unable to treat with issues and or matters arising at the meeting, or that it sought an adjournment of the meeting to consider issues or to call a witness or even that it required more time to prepare defence on behalf of the Worker. Neither did Mr. T. Khan, Union Branch President nor Mr. R. Ramdoolar, Union Shop Steward give evidence in this Dispute let alone raise anything unfair about the manner in which the proceedings took place on the 13th October, 2009.

8

The Union relied upon TD 289 of 2003; National Union of Government and Federated Workers v. Happi Products Limited [Delivered 13th March, 2006] to support its contention that the Worker was denied a fair hearing. However this case is easily distinguished on its facts. A worker who was assigned light duties by his employer due to an injury he had sustained (known to the employer) was suddenly instructed to carry out duties for which he was clearly unfit to carry out. He protested and was subsequently called to a meeting of which he had absolutely no notice of, he was not allowed to speak during the meeting, he was unable to call witnesses and or have his Union Representative present. The Court held that the worker was denied the opportunity to be heard and that it failed to conduct a fair inquiry. We do not disagree with anything the Court said in that case but there is simply no evidence in the instant dispute to suggest that the Worker was denied a fair hearing.

9

In Trade Dispute No. 12 of 1994 between Oilfields Workers' Trade Union and Trinmar Limited, Khan V.P. explained that no rigid or inflexible rules govern the opportunity to be heard. He said,

"We do not think, however, that there should be any rigid or inflexible rules governing the grant of such an opportunity. It does not have to be a formal inquiry or investigation. It may be an entirely informal process provided always that the employee is given a fair opportunity to be heard. A fair opportunity to be heard includes the provision of relevant information by the employer to the employee so that he may appreciate and understand the substance of the allegations made against him and an opportunity to reply to such allegations and to put forward any reasons in mitigation of any penalty or penalties which may be possible having regard to the nature of the allegations made against him. The underlying basis of the opportunity is the achievement of fairness and justice. In deciding whether there has been a violation of this principle of good industrial relations practice, each case must be considered on it own facts and circumstances."

Based on the above learning we do not agree with the Union that the failure of the Company to write to the Worker advising him that disciplinary proceedings are being taken etc. in these circumstances is unfair.

10

In the instant Dispute, we make the following findings namely that the Company did inform the Worker of the substance of the allegations against him and listened to what he had to say in response. The Worker and his Representatives appreciated and understood the substance of the allegations made against him. There was full exchange at the meeting following which the Company decided to orally terminate. Immediately thereafter, the Company issued a letter of dismissal to the Worker in which it stated its reasons for so doing. In all of the circumstances we find that the Company acted fairly and we therefore uphold the Company's decision to terminate the Worker.

11

Accordingly, this Trade Dispute is hereby dismissed.

S. Ramparas

Chairman

D. Rambally

Member, Essential Services Division