I read, with some consternation, a letter to the editor of your newspaper on November 22 regarding a judgment of the Industrial Court in a matter between NP and OWTU, to which I feel compelled to respond.
My issue is not with the judgment of the court, as I have not yet seen a copy of it, but with the underlying thesis of the letter, which seems to postulate that it is somehow immoral for the employer to appeal the judgment.
My reading of the letter by my friend and colleague of long standing, Mr Ashton Brereton, is that he is not questioning the appeal on merit but on the assumption that NP is in some way being obstructionist, in that appeals on judgments of the Industrial Court could only be on points of law; implying that there is no such point to justify the appeal.
This is a curious comment for a practitioner to make at this time when, as he himself pointed out, there is an application before the Court of Appeal in respect of which that court instructed that NP submit "by Tuesday next week grounds of appeal and related arguments." Upon such a submission it would be for the Court of Appeal to say whether there are sufficient grounds for an appeal or not.
May I take this opportunity to comment on a related aspect of this matter. Mr Brereton focused on section 10 (6) of the IRA, which speaks to the dismissal of a worker which is deemed by the court to be harsh and oppressive or not in accordance with the principles of good industrial relations and says that such a judgment "shall not be challenged, appealed against, reviewed, quashed or called in question in any court on any account whatsoever" and the related section 18 (2) which states the exceptional grounds which will permit an appeal.
My limited knowledge of the case at issue is that workers stopped work contrary to Part V of the Industrial Relations Act and in accordance with the provisions at section 63 of that part, the contracts of service of the relevant workers were determined. S 63 (1) (c) states that "Where a worker takes part in such action the employer may treat the action as a fundamental breach of contract going to the root of the contract of employment..."
An industrial relations offence was also filed by NP against the union. S 63 (1) (b) states: "A trade union taking such action is guilty of an industrial relations offence..."
It seems clear, therefore, that where a worker's contract of employment is determined by operation of section 63, such a dismissal is not a disciplinary matter related to his job performance or conduct (per S 10 (6)) but to the acceptance by the employer of a breach of his contract of employment.
The only remedy available to a duly authorised union challenging the decision to dismiss in these circumstances must be in accordance with section 64.
Section 64 provides that upon an application by such a union within 14 days of the dismissal, the decision may be set aside by the court if it is satisfied that the industrial action by the worker/s was caused by exceptional circumstances and that it is otherwise fair and just to excuse the worker/s.
It seems to me therefore that an employer's action cannot be deemed to be "harsh and oppressive" if he acted in accordance with the provisions of the act, but that the court would be well within its rights to set aside that decision if circumstances warrant.
A Mervyn Rawlins
Maracas-St Joseph