Non-ratified treaty;¹ Instruments not subject to ratification²

Dismissal for breach of duties/ Absence of opportunity to be heard/ Establishment of a jurisprudential principle based on international law

A security officer was dismissed without any hearing procedure. The employer contended that the worker committed breaches of duty which separately and cumulatively were considered sufficiently serious to warrant his immediate dismissal. The Court had to establish whether the dismissal of the worker without any hearing was contrary to good industrial relations practice.³

To do so, the Court relied on several cases based on ILO Recommendation No. 119 on Termination of Employment. In one of them (TD98/1997 Barclays Bank and Barclays Employees Union) the Court concluded that:

 “A fundamental principle of natural justice developed under the common law is that a person has the right to be heard in defense of his person or property and the ILO recommendation only restate this principle.”

The Court referred to other similar cases and concluded that the principles of good industrial relations practice require an employer not only to inform a worker of the dismissal but also give a worker a fair opportunity to be heard before proceeding to dismiss him for such reason. Those principles are based on judgments as well as on ILO Convention No. 158 on Termination of Employment:

 “The effect of those and numerous other judgments of this Court (…), as well as ILO Convention 158 (…), is to establish, that in our system of industrial relations, every worker has the right to a fair opportunity to defend himself against any charge or allegation made against him, as well as to be heard in mitigation of any possible penalty (especially dismissal) by the person/s in management responsible for taking such decisions, before they are effected. This is not a trifling matter to be taken lightly or viewed as a more technicality. It is a fundamental principle of good industrial relations.”

Relying on ILO Convention No. 158, the Court established that a dismissal had to be preceded by a fair opportunity to be heard. Its omission by an employer would amount to a fundamental breach of the principles of good industrial relations practice. An employer seeking to sustain and justify the dismissal of a worker in such circumstances, places on his own shoulders, the burden of proving that he could not reasonably have been expected to provide the worker with the opportunity to be heard and that even if he had done so, it would have made no difference to the outcome.

In this present dispute, the Industrial Court of Trinidad and Tobago found that the employer had not shown evidence of any circumstance that could have reasonably prevented him from respecting the audi rule. The Court ordered that the worker be paid damages.