I write from the view point of an entrepreneur, a Human Resources Executive and a young professional. While I do have concerns about some of the judgments that have been made with regards to employee termination cases; one thing remains paramount – innocent until proven guilty.
I’ve heard it said by several members of the business community, in an irritated tone – “You can’t fire anyone; you’re just going to get into trouble with the Industrial Court.” As a result, many businesses suffer with poor performance, low productivity and deplorable customer service. This obviously has an adverse impact on the company’s ability to generate revenue and achieve success. Today, it’s become increasingly difficult as customers demand more, better and faster delivery of products and services. They aren’t willing to settle; taking to facebook and other social media forums to complain and expose those companies and share their experiences.
The stakes are high; so why then do business owners and companies settle and suffer with the employees that they have? Or conversely, terminate with haste and in a manner which is deemed by the Industrial Court as “harsh and oppressive or not in accordance with good industrial relations practice.”
Now, don’t get me wrong – there are amazing, dedicated and innovative employees out there and scores of them are underpaid and underappreciated. But that’s a topic for another day. What I’m talking about are the business owners and companies that allow employees to bread a negative, resistant, unproductive culture out of fear of being persecuted by the Industrial Court. The business norms for these employees then become - get by, stay under the radar and do what is only absolutely necessary, or in some cases, get away with doing less than expected. This usually occurs when an ineffective performance management process is present or there is a lack of knowledgeable Human Resources support.
By now, many of us have been following the saga of Frank Mouttet, Trinidadian businessman that sparked outrage by Unions and the Industrial Court alike. His comments at a seminar hosted by the Trinidad and Tobago Chamber of Commerce entitled “The Impact of Industrial Court Judgments on Your Business” has been perceived as a vicious attack on the Industrial Court. As a result, shortly after the seminar held on November 30th 2016, he was issued with a summons to appear before the Court on a charge of contempt of court.
This situation has brought to the forefront the ongoing conversation about the employee-employer relationship and the challenges with firing employees; the Country remains divided in its opinion. Like the rest of the business community, I await the outcome of this litigious case.
On November 23rd 2006, Frederick Gilkes, Attorney-at-Law, explained it succinctly at an event hosted by the American Chamber of Commerce of Trinidad & Tobago entitled"Industrial Relations in Trinidad and Tobago – The Known and the Unknown." He stated – “In exercising this jurisdiction, the Industrial Court considers not only the cause for the dismissal but the manner in which the matter of the dismissal was handled.” In the landmark Industrial Relations judgment of Fernandes (Distillers) Ltd. vs. Transport and Industrial Worker's Union in 1968, the Industrial Court awarded compensation to the worker who had allegedly stolen a quantity of overproof alcohol. The case highlights the need for employers to observe the basic rules of natural justice. In his presentation, Gilkes went on to say that even if an employer has just cause for dismissal, they may still be ordered to pay compensation to the dismissed worker if they “fail to give the worker an opportunity to be heard in relation to the charge.”
While business owners and companies have the right to manage their operations, the procedures of nature justice must still be followed. You can fire an employee; you just have to do it correctly, once there is just cause.
Across the Caribbean, in several cases, employers’ fail to:
§ Document infractions and poor performance
§ Practice progressive and documented discipline
§ Properly investigate allegations of misconduct
§ Inform the worker of the specific allegations against them
§ Give the worker an opportunity to be heard
§ Inform the worker of the specific reasons for dismissal
The employment relationship is a very complex process. Employers should seek advice and guidance when making decisions on employment issues. Several international, locally run companies have Industrial Relations Specialists who handle these types of situations; compared to many local companies that do not even have a Human Resources department or a Human Resources Manager that is equipped with the necessary knowledge, skills and experience to deal with these matters. Conversely, the Unions are seasoned, organized experts and as a result, companies get destroyed in Court.
I understand. Not all companies have the finances to hire a lawyer or an Industrial Relations Consultant for every challenging employee issue. However, if these issues are mismanaged they can be very costly and damaging to the reputation of a company. Payouts differ depending on the length of service of an employee and a multitude of other factors, but one seemly justified dismissal can result in a payout of over TT$500,000. Just like that!
I’ve had my own run-ins with Unions and the Court where I’ve left feeling frustrated and unfairly judged but I’ve realized that in the past, I too have made mistakes and acted hastily out of frustration. But we learn, we grow, attend seminars and do the research to enhance our skill sets.
Ignorance of your Country’s Labour Laws is not acceptable. So if you choose as a business owner not to seek and/or pay for advice; you must keep yourself abreast of the laws and keep current on Industrial Court judgments. Above all else, pause and reflect on your decisions before you execute. A lack of emotional intelligence and ego can sometimes get in the way of making good decisions.
At the end of the day, you can fire employees. It’s too important to the success of your business not to treat with them effectively. Whatever way you opt to deal with your Industrial Relations issues – proceed with caution.
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