Many companies, whether unionised or not, are often faced with the question of whether their employees can be accompanied by a representative at a disciplinary hearing, and under what circumstances such requests for representation may be denied or curtailed.
More specifically, and as recently as two weeks ago, I had cause to assist a very good client who found herself confronted by not one but two attorneys-at-law representing an employee at an internal disciplinary hearing.
Over the years, the Industrial Court has provided detailed guidance to employers with respect to disciplinary procedures. In TD 116 of 1996, Oilfields Workers’ Trade Union v Petroleum Company of TT Ltd, the court advised that an employer dealing with an employee in a disciplinary situation has clearly defined duties.
The company must clearly state to the employee what he/she has done wrong and must give the employee a reasonable opportunity to explain him/herself or to demonstrate any required improvement, where possible. When the company has received that explanation, it should be considered fairly to arrive at a reasonable (as opposed to perverse) conclusion.
The court went on to say: “There was no duty by an employer to run his business and deal with his employees as regards discipline as if it were holding a trial in a court of law. Its conduct of disciplinary matters and its conclusions therein must be fair and reasonable in the ordinary sense of the words. This frees the employer from the burden of having to conduct a ‘mini trial.’”
With that said, the court has even gone on to advise on the various considerations that would affect an employer’s decision-making when undertaking disciplinary action that may result in dismissal.
These considerations include holding a proper, fair and reasonable investigation and disciplinary hearing, having a valid reason for termination if that is the identified course of action, advising the employee of the reason for termination and providing him/her with the opportunity to respond to any allegations levied against him/her (Trade Dispute 2 of 2001 Banking, Insurance and General Workers' Union v Hindu Credit Union Co-operative Society Ltd).
[caption id="attachment_982686" align="alignnone" width="765"] In this file photo, Douglas Mendes, SC, centre, leads OWTU president general Ancel Roget and other members of the unionto the Industrial Court on St Vincent Street, Port of Spain. -[/caption]
The overarching objective should be fairness and adherence to good industrial relations principles and practices.
In the UK, the Employment Appeal Tribunal (EAT) has ruled that the employee should be permitted the right to be represented or accompanied in accordance with “the procedure” (Rank Xero A(UK) Ltd V Goodchild (1979) IRLR 185, EAT).
The procedure was further codified into the English jurisprudence in the Employment Relations Act 1999 as a statutory right to be accompanied. The act sets out the right for a worker to be accompanied,
