Originally published in the Sunday Guardian (Aug 5th) by a Guest Author and was republished by the Energy Chamber
Any functioning society must have mechanisms to put right what, sometimes, employers get wrong, especially when it comes to discrimination at work, unfair treatment and abuse of power. This is a given, and employment tribunals play a vital role in making sure employees are treated fairly and within the law.
This is very much at the centre of the International Labour Organisation’s principles of justice which, as a member state, Trinidad and Tobago also supports.
The problem is when these principles begin to be interpreted – consciously or unconsciously - not as natural justice but as some kind of wealth distribution channel, often based on the simplistic and misguided concept that employers are always bad (and rich) and employees are always victims (and poor).
Especially when employment tribunals are set up without clear and well-defined compensation rules, penalties ordered by them can become random and disconnected from reality.
This is a risk we clearly face in T&T – and it may explain the outcome of cases going through the Industrial Court.
For instance, in separate cases which were found against NIDCO, NCC and UTT for unfair dismissal of employees operating under fixed term contract terms, compensation ranged from $135,000 to $1.5 million. These cases span around 10 years, so inflation alone cannot explain the difference.
In a case involving Pricesmart, the lack of consultation with the employee over a decision by the company to medically board the individual generated $45,000 in compensation. For the same reason, Carib Glass was made to pay $80,000 and T&TEC faced a charge of $1 million (although it also lost the case because the employee was assessed as fit to work, the sum awarded is still considerable).
IC judges normally explain in detail their rationale for the outcomes of a trial, although the verdicts tend to be less detailed on how the financial penalties were arrived at; and at least for observers, it’s difficult to understand the reasons why the awards can vary so wildly. It’s particularly worrying to see the onset of what looks like a compensation inflation that far outstrips the real world’s financial realities.
It doesn’t help that, unlike other tribunals, the Industrial Court’s decisions are final, essentially without a right to appeal unless one of the parties challenges a point of law. In other words, it’s not possible to challenge the court’s overall interpretation of the case and what it awards to the winning side. This can’t be right.
It’s time to look at how our employment justice system works, including how compensation is determined. As it often happens with our legal system, given their similarities, a look at how the United Kingdom has been modernising its employment tribunal principles might be a good idea.
There, the compensation for unfair dismissal is formed by two elements. The basic award follows a clear formula, which allows for the tribunal to also deduct money already paid by the employer, such as retrenchment compensation. In addition to the basic award, judges can also add a compensatory element. However, it comes with a cap, limited to one year’s salary but no higher than £80, 541 (TT$740,000). There are exceptions when the cap is not applicable. And in discrimination cases, for years now courts in the UK use four bands to award compensation, based on the gravity of the case.
A transparent, clear and realistic set of compensation principles and figures is good for everyone: employers and employees know where they stand whilst judges can reach their verdict through a helpful framework instead of starting from virtually nothing or harking back to decades of previous trials to try and justify a sum to be awarded.
None of these changes would diminish the role of the Industrial Court and would still allow it to fulfil its duties. The difference is that, instead of risking only dishing out a flawed and populist version of social justice, the Court would be further strengthening the principles of fairness and equitability to all (employers or employees, big or small businesses) through well-defined compensation packages.
More needs to change in our industrial relations landscape but this would be a good point to start from. With urgency.