A Summary of the Case

In this dispute the Trinidad and Tobago Postal Workers Union (hereinafter called 'the Union') is seeking an Order for the refund of a half day's pay which was deducted by the Trinidad and Tobago Postal Corporation (hereinafter called 'the Corporation') from the salaries of some twenty nine (29) Workers, after they stopped work on the 3rd April 2002, citing "unbearably hot and humid conditions" at the Company's Couva Delivery Centre, as the reason for their actions. For its part, the Corporation claims that it was justified in making the deductions from the Workers salaries, since they did not complete their rostered duties for that day as a result of industrial action and that their absence from duty which was neither approved vacation nor sick leave was being treated as "no pay leave".

2

Both parties in response to the orders of the Court submitted written statements of Evidence and Arguments and called witnesses in support of their respective cases. For the Union, Mr. Jaffar Khan, Team Leader and Mr. Narine Sammy, Delivery Leader gave evidence, while Mr. Franklyn Ali, General Manager Operations, testified on behalf of the Company.

3

From our examination of the evidence both written and oral, it appeared that the main facts were not in dispute. These are as follows:-

The Trinidad and Tobago Postal Corporation (The Corporation) was established by an Act of Parliament in 1999 and is responsible for the operation of postal services throughout Trinidad and Tobago. For this purpose the Corporation operates various delivery offices throughout Trinidad and Tobago.

The Trinidad and Tobago Postal Workers Union ('the Union') though not certified as the Recognized Majority Union, has been meeting and treating with the Corporation on all matters regarding the terms and conditions of employment of its workers, since the Corporation commenced its operations in July 1999.

4

In September 2000, the Corporation established a new delivery centre at Couva, to which staff previously housed at delivery offices in Carapichaima, California and Couva, were transferred.

5

The staff then comprised one Delivery Leader, one Team Leader; five Mail Officers and twenty-six Delivery Officers.

6

The Delivery Leader was in over all charge of the delivery centre and reported to the National Delivery Manager who was responsible for delivery operations throughout Trinidad and Tobago. The Team Leader and the five Mail Officers were responsible inter alia for the sorting of mail into bundles representing geographical areas or "walks" which would then be passed to the Delivery Officers who would in turn further sort the mail according to the streets and house numbers comprised in the "walks" to which they were assigned. The Delivery Officers would then go out and deliver the mail to the various addresses. The Mail Officers would remain at the Centre and among other duties deliver mail to "walk-in" customers who had private mail bags.

7

Prior to the staff actually moving into the building proposed for the new delivery centre, the National Delivery Manager along with some members of the staff and the General Secretary of the Postal Workers Union conducted an inspection of the building, which comprised of a concrete structure at ground level with a concrete decking for its roof and two sets of windows on two of its sides. Its ground floor space was 2,400 square feet. The adequacy of the floor space, the lighting and the ventilations were examined, and a decision was take to install a number of fans along; the walls and at various points on the floor. This was done a few days after the staff moved into the Delivery Centre in September 2000.

8

Notwithstanding the installing of fans, the staff complained to the Delivery Leader, Mr. Narine Sammy, that the building was hot and uncomfortable to work in because of the lack of air conditioning. Mr. Sammy made written reports to the National Delivery Manager, about the Workers complaints together with his own complaints about the hot and uncomfortable conditions of the building. In one such report dated June 2001, he stated inter alia "I have continued to receive complaints about the lack of air conditioning in the building. It is very uncomfortable to work at the Couva Delivery Centre."

9

In another report dated October 2001, Mr. Sammy wrote "..... the staff continues to complain about the heat, some have even threatened to sort their mail outside in the yard."

10

Later on in that report Mr. Sammy stated: "...... Also some effort should be made to air condition the Couva Delivery Centre."

11

In yet another written report dated March 2002, the Delivery Leader stated ".... Employees continue to voice their dissatisfaction over the uncomfortable working conditions within the Building."

12

On the 17th July 2001, a meeting was held between the Union's General Secretary Mr. Everad Samuel and the Management and the issue of air conditioning of the Couva Delivery Centre was raised by the Union.

13

Management informed the Union that the Air Conditioning Units would be provided for the Centre under the "World Bank Refurbishment Programme", as it would entail significant capital cost. It was also agreed that the Union would obtain the written consent of all the staff at the Delivery Centre for the provision of the air conditioning.

14

A petition dated 12th March 2002, calling on the management for "immediate improvement to the humid conditions experienced at the Couva Delivery Centre "since the inception" was delivered to the Delivery Leader Mr. Narine Sammy. The petition was signed by the members of staff stationed at the Delivery Centre.

15

On the 3rd April 2002, at about 9:00am, all but two of the Delivery Officers stopped working and went outside of the building complaining that they could not continue to work under the hot conditions of the Centre without air conditioning.

16

A meeting was held at about 12:45pm between the Corporation's General Manager Operations, Mr. Franklyn Ali; Delivery Manager Mr. Garth Richardson; Delivery Leader Mr. Narine Sammy; Team Leader Mr. Jaffar Khan and General Secretary of the Union Mr. E. Samuel to address the Workers concerns. At the end of the meeting, the General Manager Operations, Mr. F. Ali announced that the Corporation had agreed to install air conditioning units within the following two days provided that the Workers returned to work by the following day. On the 4th April all the Workers reported for duty and by the 5th April 2002, the Corporation had installed air condition units as it had undertaken to do.

17

On the said 4th April 2002, the Corporation sent letters to all the Delivery Officers who did not work for the entire day, as well as all the Mail Officers advising them inter alia that they did not complete their rostered duties for the 3rd April 2002, as a result of industrial action. In the letter, the Corporation proposed to deduct half day's pay as "no pay leave" from their salaries due at the end of April 2002. The full text of the letter; is reproduced hereunder:

4 April 2002

Leo Barrow

Mail Officer

Couva

Non Completion of Duties Wednesday 3 April 2002

On Wednesday 3 April 2002 you did not complete your rostered duties for the day as a result of Industrial action taken at Couva.

As this absence from duty was neither approved vacation leave or sick leave the absence is being treated as no pay leave.

Accordingly it is proposed that the deduction for half a days no pay leave will be made from salary due at the end of April 2002.

Should you have other amounts of no pay leave to be deducted from salary and you wish to have this no pay leave deducted from salary over a period of time please contact HR (either Kevin Upston or Kamini Heeralal) in order that consideration can be given to your proposals.

If we do not hear from you within seven (7) days arrangements will then be made for the no pay leave deduction from your salary as advised above.

Signed

Kevin Upston

GM Human Resources

Narine Sammy

Delivery Leader

18

Sums amounting to half day's pay were actually deducted from the salaries of the Workers at the end of April 2002.

THE UNION'S CASE

19

The Union's case in sum is that prior to the 3rd of April 2002, the Workers had complained repeatedly to the Delivery Leader and others about the hot and humid conditions at the Couva Delivery Centre. They also prepared and signed a petition dated 12th March 2002, which they submitted to the Corporation seeking relief. The Corporation was fully aware of the situation yet did nothing to alleviate the unhealthy working conditions.

20

The Union argued that the Workers demonstrated patience and good faith in lodging numerous complaints to the Corporation and allowed them reasonable time to correct the problem. The Union further argued that the workers did not act maliciously when they stopped work on the 3rd April 2002, but that due to the "deplorable working conditions" they were prevented from working. Their action was not industrial action but fell within the exclusions contemplated by Section 2 (1) of the Industrial Relations Act, since unusual circumstances existed at the time, which were hazardous or injurious to health or life. The Union further argued that a safe and comfortable working environment is a critical part of the implied terms of the Workers contract the provision of which is the responsibility of the Corporation, which they failed to provide. Given those circumstances, the deductions of half day's pay from the Workers salaries, were unreasonable and unfair.

THE CORPORATION'S CASE

21

The Corporation's case in essence is that when the Couva Delivery Centre was first established in September 2000, the Workers declined its offer to install air conditioning and opted instead for fans, which were consequently supplied.

22

That when in July 200, the Union sought the installation of air conditioning it was agreed that they would obtain the written consent of all the delivery staff at Couva which they failed to do up to the 3rd April 2002, when the Workers stopped work.

23

That the Workers who did not work for the entire day on the 3rd April 2002, were not authorised to do so; that their actions constituted industrial action and that the Corporation's decision to deduct half day's pay was justified and was in line with its policy of "No work, No pay". The Corporation further argued that the Union did not prove that the conditions at the Couva Delivery Centre posed a danger to their health or life.

THE ISSUES

24

From our examination of all the evidence and the arguments presented by the parties, we are of the view that the issues to be decided are these:

1

Whether in all the circumstances, the Corporation was justified in deducting half day's pay from the salaries of the 29 Workers after they stopped work on the 3rd April 2002. 2. Whether the Workers acted unreasonably in refusing to continue to work on 3rd April 2002, in the absence of air conditioning. 3. Whether the Corporation was justified in the way they treated that action.

25

Both the Corporation and the Union in their arguments to the Court, have focused attention of the question as to whether or not the work stoppage by the Workers on April 3rd 2002, constituted industrial action or whether that action fell within the exclusions from the definition of industrial action contemplated by section (2) (1) of the Industrial Relations Act. Indeed in addressing the Court on this question Mr. Jack for the Union, put the matter this way:

".......... What is left to be determined by this Court is whether the action amounted to industrial action, or whether these Workers refused to work on the basis that the conditions at the Couva Centre posed a danger to their health. If it is determined that it was industrial action, then in keeping with the provisions of section 62(2) of the Act, there is no obligation on the part of the employer to pay...."

26

In effect what this approach does is to require the Court to decide whether the conditions which the Workers complained about were in fact injurious to their health. But we can only come to such a decision on the basis of the facts, and the only available evidence we have to go on, is that the conditions at the Couva Delivery Centre were "hot", "humid" and "uncomfortable" to work in. While it is a matter of general theoretical possibility that exposure to certain temperatures could pose some danger to the Workers health or life, there is insufficient evidence before us to permit us to conclude that such dangers did or did not exist in the particular conditions at the Couva Centre. Furthermore, it would be wrong for this Court, to engage in speculation about the possibilities of danger as a basis for arriving at a conclusion one way or another.

27

We must therefore respectfully decline this approach and focus instead not on whether or not the Worker's action on April 3rd 2002, amounted to industrial action, but rather on the issue as to whether in all the circumstances of this case.

1

The Workers refusal to continue work on the 3rd April 2002, was unreasonable. 2. Whether the Corporation was justified in deducting half day's pay from the salaries of the twenty nine (29) Workers.

OBSERVATIONS AND FINDINGS

28

From a careful examination of all the evidence and in particular the evidence of Mr. Franklyn Ali the General Manager Operations, it is clear that the Corporation considered the issue of air conditioning at the Couva Delivery Centre since September 2000. According to Mr. Ali, the issue of air conditioning was discussed then, but a decision to install fans instead was taken after some members of staff expressed the fear that their health would be adversely affected. The Corporation knew or ought to have known since September 2000, through the Delivery Leader, Mr. Narine Sammy, who was the Supervisor in charge of the Delivery Centre, that although fans were installed, they made no real difference and the conditions in the building continued to be hot and uncomfortable.

29

Mr. Sammy made reports both orally and in writing to the Delivery Manager to that effect, and the Corporation's higher Management at no stage expressed any disagreement that such was the case. When the Union and the Corporation met in July 2001, the Corporation agreed to pursue the acquisition of air condition units through a World Bank loan and the Union undertook to get the Consent of the Workers for the installation of air conditioning. From the evidence it is clear that the Union never fulfilled this undertaking even up to the 3rd April 2002, and it is doubtful whether the Workers were made aware that that was a requirement to which the Union had agreed. The Corporation within one week of their meeting with the Union in July 2001, pursued the procurement of the World Bank loan but was unsuccessful in obtaining it. Thereafter it did nothing more in pursuance of its undertaking to acquire air conditioning for the Centre. Indeed according to the evidence of Mr. Franklyn Ali, what prevented the installation of the air condition unit before the 3rd April 2002, "was the cost associated with purchasing it." In the meantime the workers continued to- work in the unsuitable condition and they and the Delivery Leader all continued up to March 2002, to complain about the heat and the discomfort they were experiencing.

30

It is instructive to note however, that when the Workers stopped work on the 3rd April 2002, the Corporation met with the Union and agreed to have air condition units installed within two days. Indeed the units were in fact obtained and installed by the 5th April 2002, bringing to an end the dissatisfaction and discomfort experienced by the staff since September 2000.

31

It is our view that both the Union and the Corporation were guilty of contributing to the unsatisfactory state of affairs. The Union on the one hand flouted its undertaking to provide the written consent of the Workers. The Corporation on the other hand in the face of continuous complaints by the Workers, the Union and its own Delivery Leader, procrastinated and did nothing to alleviate the complaints, particularly after their failed attempts to obtain World Bank funding.

32

But while both the Union and the Corporation must share some blame in the situation it is ultimately the responsibility of the Management of the Corporation to ensure the provision and maintenance of conditions of work that are satisfactory and suitable for the performance of the duties required of the Workers. This the Corporation failed to do up until about the 5th April 2002, when air conditioning units were finally installed. In our view the Corporation's delay in doing so was unjustified. Though this Court does not condone the indiscriminate stoppage of work by Workers at their whims and fancies and particularly in circumstances that are not wholly consistent with the law, we cannot in the special circumstances of this case conclude that the Workers action on the 3rd April 2002, was in all the circumstances unreasonable.

33

In the circumstances, we find the deduction of half day's pay from the salary of the Workers to be an unreasonable punishment in the face of their just complaints about their unsuitable conditions of work, which went unheeded for almost one and a half years.

34

We therefore order that the twenty nine (29) workers be refunded the half day's pay deducted from their salaries at the end of April 2002. Such payment to be made on or before the 30th August 2007.

Her Honour Mrs. D. Thomas-Felix

Chairperson

His Honour Mr. A. Aberdeen

Member

Her Honour Ms. B. Mahabir

Member