Sun | Apr 21, 2019

Orville Taylor | Back off the IDT

Published:Tuesday | February 26, 2019 | 12:07 AM

If something is wrong, it is simply wrong. In my column last week in speaking to the Petrojelly debacle, I, in a satirical mode, spoke to the responsibility of former permanent secretary (PS) in the energy ministry “Sancia Bennett Templer, under whose watch all of the travesties and broken eggs took place”.

Doubtless, she was not the PS in place at the time, and her role was to face the music when the eggs broke but she did not lay them. Thus, the point is that moving her takes away any semblance of her involvement in any continuing cover-up and thus makes sense because the post-facto basket she got couldn’t carry water or raw eggs.

Moreover, I want to keep the focus on the fact that the corporation raised the matter of unjustifiable dismissals and brought into scrutiny the Industrial Disputes Tribunal (IDT). Suddenly, after some 44 years of being the pulse of the system of industrial relations in this country, it has become a nuisance, because since 2010, non-unionised workers have access to it.

The tribunal, which the prime minister said that some lawyers feared could possibly give an adverse judgment over the resignation/termination of employment of Yolande Ramharrack, gave a solid award. It ruled that Roselee Scott-Heron, who was apparently shunted and whose place the latter occupied, was unjustifiably dismissed.

Hence, the equivalent of 12 months’ salary, some $9.8 million, was awarded. Had the tribunal wished, and if Scott-Heron wanted back her job, it had the authority under Section 12 5 (c) of the Labour Relations and Industrial Disputes Act (LRIDA) to also reinstate.

This adverse judgment against the company is flaccid support of the illogical decision to award Ramharrack a hefty separation package because, according to a wave of small but loud detractors, the IDT is as unpredictable as a crack head drinking white rum.

Maybe some of the critics’ English teachers died before they completed their high school education, but there is a big difference between arbitrary and arbitration.

NOT SOME MAVERICK ENTITY

 

The IDT is not some maverick entity that makes decisions without foundation. Much of this is simply a grand narrative. A number of attorneys and employer representatives lament that the tribunal does not have a body of published precedent cases or dicta from the awards and decisions over time. Admittedly that is true, although there are cases where the Tribunal does give clear and precise reasoning behind its decisions.

 

However, the existence of a published body of judicial cases is only found in the high courts such the Supreme Court or Court of Appeal. In Parish Courts, where the majority of civil and criminal matters are determined, single judges are relatively free to make ‘arbitrary’ judgments and only when their rulings are challenged by defence attorneys do their reasonings come to the fore. In fact, it is often only where very vigilant journalists are allowed to view and sit in proceedings that the activities of a trial become public.

As a matter of fact, perhaps the best example of the lack of a body of published and instructive cases to guide judges is the most important court in the country – the Family Court. Given the solid research by social workers, psychologists and other behavioural scientists, this court is absolutely the one where we need the most consistent and transparent set of judicial decisions to guide adjudicators.

By and large, in these ‘lesser’ courts, the solitary judge makes notes and typically keeps a clenched fist around dicta if he or she actually produces any.

Although it is a special creature under the LRIDA, the IDT is not an outlier of British jurisprudence. True, it operates with powers of reinstatement and uses a slightly lower standard of evidence than criminal courts. However, the Labour Relations Code, created under Section 3 of the LRIDA, is not statute so as to make anyone, “liable to legal proceedings”; yet, “… its provisions may be relevant in deciding any question before a tribunal or board.”

For the record, where dismissal matters are taken to court, unless there is appropriate notice given, the courts have historically ruled that in the absence of a proper procedure akin to Section 22 of the Code, the dismissal is ‘wrongful’.

Thus, where Section 22 outlining disciplinary procedures is not followed, the tribunal has consistently made awards that support the ‘innocent party’.

The fact that the majority of cases before the IDT determined in favour of workers since 2016 means nothing more than that they had more merit. After all, why would an unemployed person pursue a matter if he felt that he would lose?

Still, there is an argument that the guilty have often won based on a technicality. There is no evidence that the majority of cases ruled in favour of the workers were only due to procedural ‘glitches’.

Every single lawyer knows that processes and procedures are sacrosanct. Many ‘guilty’ criminal accused walk because of the lapses in process. In this regard, the IDT is perfectly aligned with good practices in law and justice.

We can, therefore, forgive employers for their bias and ignorance in these matters. However, all my attorney friends know that the shortcut to exercising one’s right to dismiss is a dangerous route.

 

Dr Orville Taylor is head of the Department of Sociology at the UWI, a radio talk-show host, and author of ‘Broken Promises, Hearts and Pockets’. Email feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com