IN THE INDUSTRIAL COURT COMMUNICATION WORKERS - PARTY NO. 1 UNION TELECOMMUNICATIONS SERVICES - PARTY NO. 2 OF TRINIDAD AND TOBAGO LIMITED

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1 23 TRINIDAD AND TOBAGO E.S.D. T.D. No. 52 OF 2006 IN THE INDUSTRIAL COURT Between COMMUNICATION WORKERS - PARTY NO. 1 UNION And TELECOMMUNICATIONS SERVICES - PARTY NO. 2 OF TRINIDAD AND TOBAGO LIMITED CORAM: His Honour Mr. V.E. Ashby - Chairman Her Honour Mrs. J. Rajkumar-Gualbance - Member APPEARANCES: Mr. J. Julien ) Secretary General ) for Party No. 1 Ms. S. Indarsingh ) Attorney-at-Law ) for Party No. 2 DATED: MARCH 1, 2012 JUDGMENT DELIVERED BY HIS HONOUR MR. V.E. ASHBY Page 1 of 12

2 This trade dispute between Communication Workers Union ( the Union ) and Telecommunications Services of Trinidad and Tobago ( TSTT ) concerns the dismissal of Ronald Brizan, Customer Service Representative ( the Worker ) by letter dated July 14, The Union is the recognized majority union for the bargaining unit to which the worker belonged. TSTT is a company duly registered under the laws of Trinidad and Tobago the principal business of which is the provision of Telecommunications Services. The reason for the worker s dismissal is set out in the following paragraphs excerpted from the letter of dismissal: Having considered the submissions made by your Union representative, together with your written and oral testimony, the Company is satisfied that you solicited, and subsequently sold to one of its authorized Mobile Dealers, twenty eight (28) mobile phones, the proceeds of which were for your personal benefit. Such activities represent a conflict of interest with your duties as a Customer Service Representative and are in breach of your implied contractual duty to serve TSTT with fidelity. Background In September 2003, TSTT received a letter from Mr. Paul Quinn Managing Director of Advantage Cellular Telephones Company Limited, one of its authorized mobile telephone dealers. The letter reported a transaction gone awry in which the worker is said to have offered to sell to Mr. Quinn thirty (30) Nokia 1220 mobile telephones which had been imported from Grenada. The reported transaction involved an advance payment of some $5, from Page 2 of 12

3 Mr. Quinn to enable the worker to meet the cost of clearing the phones through customs and a subsequent payment of $4, What caused the transaction to go awry was that the telephones received by Mr. Quinn were unsaleable because they were locked and the worker, despite undertaking to get them unlocked, was never able to deliver on his promise. By a letter to the worker of January 2004 (Exhibit R.B. 3) he was informed by TSTT of its awareness of the transaction and of two specific acts said to be instances of conflict of interest as follows: More specifically you have: (a) Offered for sale to business associates of TSTT, mobile equipment which was not the property of TSTT or authorized to be sold by you on its behalf. (b) Engaged in the purchase and/or importation for sale in Trinidad of mobile equipment and related material on behalf of TSTTs business associates. The worker by letter dated January 28, 2004 (Exhibit R.B. 4) responded denying the allegations of TSTT in the following terms: I have never offered for sale any TSTT mobile equipment or TSTT related materials to any business associates on behalf of TSTT. I have never purchased or imported for sale in Trinidad any TSTT mobile equipment and or TSTT related materials on behalf of any of TSTT s business Associates. Page 3 of 12

4 The worker s letter went on to ask for further particulars of TSTT s allegations against him. TSTT responded by a letter dated January 29, 2004 (Exhibit R.B.5) which referred to a conversation on that day between the worker and Mr. Brian Wood, Mobile Sales Manager and a Mr. Corbie both of TSTT. The letter recorded as eight (8) numbered points admissions said to have been made by the worker in the course of the meeting and provided to him an attachment described in the following terms:.. attached for your information, a copy of the letter dated September 17, 2003 from Mr. Quinn, which outlines the specifics of the information that you have requested. Having been given an extension of time to provide the explanation required by TSTT, the worker responded by a letter to Mr. Brian Wood dated February 4, 2004 (Exhibit R.B. 6). The worker made a number of admissions as is evident from the following excerpts from his letter: I wish to also state that all of your points were accurately represented save point number three. I categorically deny visiting Grenada as an agent of Mr. Quinn or Advantage Cellular Ltd. This situation started when this person from Grenada approached my brother. He was having difficulties with respect to the sale of some mobile phones in his company. My brother became interested in these handsets for use in his small landscaping company. He spoke to my brother and my brother then spoke with me. For the purpose of convenience and ease of transaction, the units were imported in my name. The units arrived and my brother found the duties to be extremely high so my brother was no longer Page 4 of 12

5 interested in the units. The Gentleman continued to contact my brother & myself for monies. Because the units were imported in my name, I became increasingly concerned about the pending liability. The Gentleman in Grenada suggested that we seek a buyer in Trinidad. I knew Mr. Quinn long before I was employed with T.S.T.T. and I was also aware that he purchased units from various buyers apart from T.S.T.T. With this in mind, I contacted Mr. Quinn and explained the circumstances with the handsets and Customs to him. Mr. Quinn agreed to purchase the handsets. I accompanied Mr. Quinn to Customs and I asked Mr. Quinn to allow us to check the handsets. I checked two or three of the handsets and showed Mr. Quinn that they working. He indicated that that was good enough as he did not have the time to stay to check all of the phones. Mr. Quinn then contacted me a few days later and informed me that the balance of handsets were locked. My brother & I tried several times without success to contact the person in Grenada who by this time had received full payment. Eventually, I decided to go to Grenada to speak with the Gentleman. When I met the Gentleman, he indicated that I would need to pay a further $20.00 U.S per handset, to get the codes. Since neither my brother nor I had that kind of money, I returned to Trinidad and sought the assistance of persons that may have access to the codes. These efforts proved futile. At no point in time did I act as an agent or represent myself as an agent for Mr. Quinn or Advantage Cellular Limited. This arrangement for sale of mobile phones is the first ever arrangement which was only done because of the problems I encountered when my brother reneged on his arrangement with the person in Grenada. These units were imported and remained at the Customs offices. At the time, I was very concerned that the arrangement was in my name and I sought as best as I knew how to complete Page 5 of 12

6 the transaction. It may even be that my method of handling the entire situation may have been faulty in some parts, but there was never any intention whatsoever, to project T.S.T.T. in a bad light, nor was there any intention to undermine and or rival the activities of T.S.T.T. That suggestion has me taken aback since my only intention at the time was to clear the Customs duties, which were accruing in my name Upon receipt of the worker s letter TSTT laid two charges against him by way of complaint forms, but only one of them was mentioned in the letter of dismissal. The Case for the Union The main thrust of the Union s case is set out under the caption Arguments in its written statement of evidence and arguments, excerpts of which are quoted as follows: 1. The Union contends that prior to this circumstance the record and job performance of the worker were both impeccable. 2. The Union contends that given the Company s submission of the date of the alleged infraction by the worker as July 25, 2003 and the first communication by the Company to the worker being January 28, 2004 (which letter was dated 2003) the Union s submission that the matter was statute barred at the very first date of the hearing was correct and as such the matter should not have proceeded. 3. The Union contends that despite its protests from the onset of in-house proceedings in respect of irregularities in the Company s approach to establishing its case, namely its inability to lend credence to signatures on statements and customs documents, given the total absence of Mr. Jerome Quinn, the instigator of the complaints, during the course Page 6 of 12

7 of the hearing. The Company recklessly proceeded with the matter to the end. 4. The Union contends that at no material time during the course of proceedings was the Company able to establish that the worker, during the course of his duties as Customer Service Representative, Mobile, did engage in any transaction with Mr. Jerome Quinn, to wit the sale/purchase of a product offered on the mobile market by the Company, leading to a conflict of interest as alleged and charged. 5. The Union contends that at no material time during the hearing was the Company able to substantiate its misconduct charge #2 as to the whereabouts of the worker on July 25, The worker produced a letter as to his whereabouts (Exhibit #6). 6. The worker was denied the opportunity to produce his witness - Mr. Marlon Brizan, his brother. This action by the Company at the hearing was in violation of its own charge form where the worker was informed he can bring witnesses in his defence. 7. The Union will contend that the worker was acting on his brother s behalf when he conducted sale of phones not sold or ever sold by the Company up to the worker being charged or his services being terminated. No transaction was ever conducted on the premises of the Company. 8. The Union will contend that no conflict of interest existed and no document was produced to indicate to the employee at the time of his employment what is considered to be conflict of interest as a Mobile CSR. 9. The Union will contend that the basis for filing of the charges was due to the relationship between Mr. Wood and Mr. Quinn, who were friends. Page 7 of 12

8 The Union contends that during the course of the hearing, the worker, by way of the deliberate actions by the Company, was denied his right to face the instigator of the charge against him, namely Jerome Quinn, his virtual accuser, thereby comprising his ability to properly defend himself compromising. The worker was the only witness called by the Union. The Case for TSTT The main thrust of the case for TSTT is set out in the following paragraphs excerpted from its written statement of evidence and arguments: 21. The Company will submit that it gave the worker every opportunity to be heard in his defence as evidenced by its letters of January 28 th 2004 and January 29 th 2004 respectively as well as the subsequent disciplinary hearing of the complaints of misconduct which were filed against him. 23. The Company will therefore submit that the worker s conduct represented a conflict of interest with his duties s a Customer Service Representative as such conduct was in breach of his implied contractual duty to serve the Company with fidelity. This moreso as the worker conducted the transaction of clearing the phones from customs and their subsequent sale during TSTT s normal hours of work. Page 8 of 12

9 24. Accordingly, the Company will submit that the dismissal of the worker on July 14 th 2004 was fully justified and was not effected in circumstances that were harsh or oppressive, nor was the dismissal contrary to the principles and practice of good industrial relations. At paragraph 4 of its statement of evidence and arguments, TSTT pointed out that the worker s duties were related to the sale of mobile telephones as follows: The worker s duties and responsibilities included inter alia, attending to walk in customers at the Company s Mobile Retail Sales Store at West Mall, demonstrating mobile units and accessories to existing and prospective customers as well as other related activities. Mr. Brian Wood, Mobile Sales Manager, was the only witness called by TSTT. The case for TSTT was also supported by documentary evidence among which were the following items: A Customs and Excise Entry Form dated July 25, 2003 for the importation of twenty-eight (28) mobile telephones which was signed by the worker as authorized importer or agent (attached to Exhibit R.B. 5). A copy of a First Citizens Bank cheque from Advantage Cellular Telephone Limited in favour of the worker for the sum of $4, The cheque was endorsed with the worker s signature on its reverse side. (attached to Exhibit R.B.5). The worker admitted that these documents were known to him. Page 9 of 12

10 The Court, having considered the arguments of the Union which were set out earlier in the judgment, finds as follows: 1. While the employer must consider mitigating factors, one of which is a good employment record, these can be outweighed by a single act of misconduct if it is sufficiently grave. 2. It was not altogether clear to which statute the Union was referring when it contended that the matter for which disciplinary proceedings were initiated in January 2004 was statute barred. If it were the limit in the Industrial Relations Act Chapter 88:01 at S. 51 that was being relied on, the Union s contention is mistaken as that limit applies to the time within which a trade dispute may be reported to the Minister of Labour 1. That limit does not apply to the time within which an employer may discover misconduct by an employee and/or initiate disciplinary proceedings in connection with it. 3. It is well recognized that an employer has no power to compel a person who is not in its employ to attend disciplinary proceedings. See also comment No. 10 below. 4. Having regard to the admissions made by the worker in his letter of February 4, 2004 and the documentary evidence linking him to the transaction the Court is of the opinion that there was sufficient evidence before TSTT to warrant its conclusion that he was guilty. 5. The charge concerning the worker s whereabouts on July 25, 2003 was not relied on as a ground for dismissal in the letter terminating his employment. 1 C.A. No. 42/69 Texaco Trinidad Inc v OWTU delivered on February 8, 1972 Page 10 of 12

11 6. Having regard to the admissions made by the worker, it is not apparent to the Court how anything said by his brother at the hearing could have exculpated the worker. 7. The worker s admissions and the documentary evidence link him indissolubly to the importation and sale of mobile telephones. The claim or explanation that it was all done for his brother does not exonerate him. 8. The question of a conflict of interest is related to the contractual duty of fidelity. This duty is a term implied in the contract of employment. Accordingly it applies regardless of the silence or absence of company policy on the matter. It also applies even though it is not written into the worker s letter of employment No evidence was led by the Union to support the contention that a friendship existed between TSTT s Mr. Brian Wood and Mr. Quinn who made the report of the transaction with the worker or that such friendship caused disciplinary action to be taken by TSTT. 10. The Court is not aware of any authority for the claim that there exists a right to face the instigator of the charge against him. On the contrary this Court in ESD Trade Disputes Nos. 40 and 41 of 2000 Public Services Association v North Central Regional Health Authority delivered on August 26, 2010 reviewed cases of the Industrial Court and from the UK jurisdiction which support the opposite view. On the evidence before us, this Court is satisfied that the worker s admissions and the documentary evidence linking him to the importation and sale of mobile telephones were a sufficient basis on which TSTT could conclude, on a balance of probabilities, that the worker was in breach of his duty of fidelity. Accordingly we find 2 See ESD Trade Dispute No. 10 of 2004 Communication Workers Union v Telecommunications Services of Trinidad and Tobago delivered on January 28, 2010 Page 11 of 12

12 that the dismissal of the worker was justified. This trade dispute is dismissed. It is so ordered. V.E. Ashby Chairman J. Rajkumar-Gualbance Member Page 12 of 12