TRINIDAD AM) TOBAGO: TRADE DISPUTE NO. 302 OF 1997

IN THE INDUSTRIAL COURT

BETWEEN

OILFIELDS WORKERS' TRADE UNION

AND

PETROLEUM COMPANY OF TRINIDAD AND TOBAGO

His Honour Mr. Cecil 0. Bernard - Chairman His Honour Mr. George Ramsubeik - Member

Mr. L. Bhajan ) Industrial Relations Officer ) For Party No. 1

Mrs. S. Liverpool-Bailey Attorney-at-Law

) ) For Party No. 2

Dated: November 20,1998.

JUDGMENT

Delivered by His Honour Mr. C. 0. Bernard - Chairman

PARTY NO. 1

PARTY NO, 2

This is an application by which the Oilfields Workers' Trade Union (the

Won) sought to move the Court to order the Petroleum Company of Trinidad and

Tobago Limited (the Company) to promote one of its employees, Mr. Lincoln Sookraj

(the Worker).

In its statement of evidence and arguments the Union alleged that the

Worker was promoted to the position of senior field supervisor on 1 st June 1987 and

that since then he has acted for various persons in the position of superintendent while

the substantive holders of the positions were away on leave or on other assignments.

The Union named three persons who it alleged were promoted to the level

of superintendent since the Worker became a senior field supervisor in 1987. These

persons were Mi. Naguib Shakeer, a field maintenance supervisor who was promoted

to field maintenance superintendent some time between 1988 and 1994; Mr. George

Archibald who was promoted from maintenance supervisor I1 to area superintendent

in 1990; and Mr. R.udolph Ramoutar who was promoted fiom electrical supervisor to

field maintenance superintendent in 1 997.

In its statement of evidence and arguments the Company averred that the

Worker's substantive position at the time the dispute arose (1995) was field

maintenance s~lpervisor XI (Administration and General) in the Exploration and

Production Division. The Company contended that there was a substantial

reorganisation of the Division consequent on a volunta~y retirement package in, 1 990

and a merger between two campmies, Trintoc and Trintopec, in 1993 which resulted

in the present company and which rendered a number of positions s~rrplus to the

Company's requirements. The Company contended that in the circumstances of the

9

restructured organisation there were no suitable vacancies to whch the Worker could

be promoted. In any event, the Colnpany contended, the matter of promotion fell

solely within the prerogative of management.

The Worker testified that he was promoted to the position of senior field

s u p e ~ s o r in 1987 and that on various occasions thereafter lie acted as superintendent

in a number of departments while the holders of the substantive positions were on

leave or otherwise temporarily absent. He testified that during the period 1988 to 1994

(the period between his promotion to his substantive position and the date of tlie

dispute) he was aware of the promotion of others to the position of superintendent. He

named Mr. George Arcliibald who was promoted in the Forest Reserve Area and Mr.

Nagmd Shakeer who was promoted and sent from Barrackpore to Guayaguayare. He

further mentioned Mr. Randolph Rarnoutar and Mr. Clyde Williams as persons who

had been promoted to sirnilar positions since the dispute arose. The worker testified

that some of the persons whom he had mentioned worked with hrn in h s early days

at Texaco prior to the merger with Trintoc while others were oripally employed with

Trintoc.

In cross-examination the Worker was asked whether he was sure he was

at all material times a senior field supervisor. He replied that he was in that position

on I st June 1987. When asked whether he had not been re-classified the worker

replied lie could not recall being re-classified as a field maintenance supervisor I1 in

1992 as hrs status kept cliangir~g, but he regarded liimself as a senior supervisor in

grade 7.

Questioned about the employment history of those persons who were

mentioned it1 h s evidence-in-chef as having been promoted ahead of him, the Worlier

was unable to say anything about their qualifications, their prior history of acting in

It-uglter positions or the length of their service in the position immediately prior to their

promotion.

In axlswer to Mrs. Liverpool-Bailey the Worker said that the position to

wltich he wanted to be promoted in 1995 was maintenance superintendent. He said

there was a vacancy in that position in the E and P Division at Guayaguayare at that

time. He said the position was filled by Mr. Ramoutar in 1997. He agreed that that

vacancy tvas in a depxtment other than the one in which he was employed although

he insisted that it was not unusual for a supervisor in one depart~ment to be moved to

another on promotion.

Asked why he considered that he had been denied promotion the worker

replied that the secrecy in which promotions >vere eflected caused him to draw that

conclusion. He gave as an example of a secret promotion the advancement of Mr.

Shakeer. Although the Worker admitted that he did not know the grades of Mr.

Shakeer, Mr. Ramoutar and h/li . Archibald prior to their being promoted nor did he

h o t v their qualifications or the dates on which they joined the Company, he insisted

that he was senior to them and that he was no less qualified than they were. He

stressed

"Ican fellyou what1 have. The other twu guys were technicians with me at Texnco. 1 am a qrcalzyed electrical tecfznicim ctrtd I haye experiettce us a mechanical techrzician. I ftnve n wide rnnge of

experieace i3t the Divisiurz or arzywhere ifz the Currtparly. The evideftce is there. "

In re-examination the Worker explained that the position of maintenance

field supervisor II fell in grade G whle his position, senior field supervisor fell in grade

7. We said that Mr. Shakeer was a field maintenance supervisor prior to his being

promoted. As far as he was aware, Mr. Shakeer had never been a senior supervisor.

The Worker testified that there was an existing vacancy in the position of

superintendent at Forest Reserve arising from the recent resignation of one Mx.

Sinanan wl~o held that position.

When the Union closed its case Mrs. Liverpool-Bailey submitted that

there was no case for the Company to answer. We ovemrled that submission. The

Company called Mr. Rawle OYBrien. In 1995 he was the Company's District

Maintenance Engheer at Forest Reserve which was in the western district. There is

also an eastern district. At that time three sztpexintendents reported to him: the

mechanical superintendent, the civil superintendent and the electrical superintendent.

There was a simila- structtire in the eastern district.

Mr. O'E3ririen said that he knew Mr. Archibald, Mr. Ranotrtar and Mr.

Shakeer. Between 1990 and 1995, he said, there were x~o vacant positio~ls of

superintendent in the western district. He denied that there was any such vacant

position at present. He explained that although the company was one entity if tliere

was a vacancy in one district they would first look within tile district for a person to

fill the vacancy, althougli persons &om otlter districts would also be considered.

6

Ln answer to Mr. Bhagan Mr. O'Brien said that the Worker was under his

supenision since about 1992. He said the Worker came to his department as a

supervisor, not a senior supervisor. He explained.

'Tn my department, ut that lime, I my;aelJ as District Maintenance Engirzeer, had three stllperintende~zts, and to tfzose superintendents reported the supervisors, Included irt the mechru2ical sectiolz was MY. Sookraj arid his job responsibilify was no dyferent from other supervisors who were reportirtg to me. They were all strperv,isors who reported to the slcperintendents who reported to me. "

When shown the letter promoting the Worker to the position of senior

field supe~~~ i so r in 1987 Mr. 03Brien said that that was a tenn in use at that time.

Asked whether there was a superintendent ttnder IGs supervision tlip to

1996 the witness agreed that Mr. Sinanan was such a person trntil he was re-assigned

to another position in connection with a project that the Company was u n d e r t u g .

Mr. Sinanan has since left the Company. Asked whether there was a vacancy

conseqt~ent on Mr. Sinanan's departure, Mr. O'Rrien said there was no vacancy as the

position had been abolished 'and Mr. Sinanan re-assigned. There was therefore no

position and consecluently no vacancy when Mr. Sinanan departed.

Mr. Ken Trabotilay was the other witness for the Company. He is the

Company's Employee Relations Specialist. Between 1987 and 1995 lle was an

employee relations officer based at Forest Reserve. According to Mr. Traboulay, in

7

f 985 there was a merger between Texaco and Trintoc which resulted in a great deaf

of restructuring. The workers of Texaco were goveraed by collective agreements for

the hourly and weekly paid bargaining unit and the monthly paid bargaining unit, wlzile

tlzose of Tx-intoc were governed by a collective agreement for hourly and weekly paid

staff only. There was no Trintoc collective agreernent in respect of monthly paid

workers.

Mr. Traboulay explained that in the Texaco collective agreernent a field

maintenance supervisor 11 was in grade 6; so too was an electrical maintenance

supervisor. Tfie next higher grade under that collective agreement was grade 8 - field

maintenance superintendent. In the Texaco system, therefore, the logical advancement

of a field maintenance s u p e ~ s o r was by promotion to the position of field

maintenance superintendent. There was no position of senior field supervisor under

the Texaco collective agreement.

According to Mr. Traboulay, a collective agreement governing the

monthly paid staff of bath former Trintoc and fonner Texaco workers was concluded

izl due course for the new monthly paid staff of Tsintoc, the Company. There was, in

that collective agreement, a position of senior field supervisor in grade 7.

Mr. Traboulay produced the employee profiles of Messss George

Archibald, Randolph Ramoutax ar~d Nagwb Skakeer as well as that of the Worker. The

profile of Mr. Archibald showed that he was originally employed by Texaco a id that

he was first appointed to the position of field maintenance supervisor 2 (grade 6) in

December, 1984. We was made a field superintendent (grade 8) in 1991 under the

Texaco collective agreement.

The profile of Mr. Shakeer showed that he was made a field s~~pewisor

L at Texaco in July 1979 and a field superintendent in 1991.

Mr. Ramoutar's profile showed that he was appointed to the position of

mdktenance constmctjon supervisor, electrical in October, 1992 and was made a field

nzaintenmce st~perintendent i11 1997.

In the case of the worker, his profile shocved that lie was originally with

Trinto~ and that he was appointed const~xzction stlpervisor in June, 1987. His profile

also showed that he was re-classified between 1992 and 1993.

Mr. Traboulay expressed the view Shat there may have been job grades

in Texaco and job groups ixr Trixitoc prior to the collective agreement for 1991-1994

which covered workers earn both the predecessor companies.

In answer to Ms. BItagan M. Trabotliay said that between 1985 and the

stm of the all embracing collective agreement the Compnnjr had to deal with jobs "in

pa~nllek"', treating on the one hand with ex-Triatoc workers who were monthly paid

*md who had no collective agreement and on the other hand with ex-Texaco workers

who had an agreernent. There was, he said, negotiation behveen the Union and the

Con~pany to gel: the &YO units together.

Mr. Traboulay, in cross-examination, told the Court that according to the

current collective agreement a senior field supervisor was in grade 7, while a field

maintenance supervisor I1 was in grade 6. The worker was classified in grade 7

althougli h s position was re-classified as field maintenance supervisor 11. The rate of

pay for the Worker was therefore a "red circle" rate personal to himself. This was,

according to Mr. Traboulay, a source of some discontent among ofher field

inaintenance supervisors I1 who felt that they were being paid less than someone who

was doing the same job.

Mr. Bhagan submitted, in essence, that the Worker should be promoted

into the position formerly occupied by Nr. Sinanan. He contended that the Company

should consider filling that position and preserving it so that someone can be promoted

into it. He urged the Court to take into account the fact that the Worker had acted in

the position before and that he was quite familiar with its requirements.

Ms Liverpool-Bailey insisted that in order that the Union should succeed

it must prove that the Company acted unfairly, inequitably and unjustly in denying

promotion to the Worker. She submitted that the Union had failed to discharge that

burden and that the Court should not intenl'ere with t l~e basic right of the Campmy's

management to choose its own enlployees.

We have considered the evidence and the submissions with great care.

What emerges is that in the merger between two companies there was, inevitably, a

certain measure uncertainty as to where employees from the different companies stood

in the seniority ladder x& a vis each other, especially where their positions in the

individual companies bore similar, but not always identical no~nenclature. The matter

was made more complicated by the fact that in the case of one of the companies there

were job grades while in the otller there were job gro~ips; 111 the one company there was

a collective agreement governing the classification into which the Worker fell while

in the other there was no such collective agreement.

The Company and the Union both seem to have recognized the difficulties

inherent in sucli a situation and sought to ameliorate them by negotiating a collective

agreement which urortld put the workers fionl the individual predecessor companies

on a common footing. It was recopzed by both sides that die situation resulting from

the merger required a measure of restructuring and a degree of reclassification of

workers. The con~pany produced an exnployment profile for each worker which could

be used as a basis for measuring one worker against my other. Coming out of the

restntcturing and the creation of worker employment profiles the worker was placed

in a grade whch, according to the company's evidence (which we accept), was hrgher

than that of other supervisors who did similar work and had similar responsibilities as

himself. That grade, together with the pay rate attaching to it, was regarded as personal

to the Worker. It carnot be said tliat, in placing lrim in such a grade, the Company had

treated the Worker harshly or unfa~rly in relation to other supervisors post

restructuring .

But that was not the primary focus of the Union's application. The Unio~r

si~~gied out three workers, Messrs Archibald, Shakeer and Ramoutar who were

proxnoted from supervisor to superintmdexrt and, arguing that they were na better

qualified than the Worker, asked the court to find that the Wovker had been treated

harsldy and unfairly in relation to them.

The question of an employer's right to promote a worker arose as early

as 1965 in m d e Dispute No. 36 of 1965 b-en Public lhasport Service

d T r v Wokers m. 111 that case the union was

asking the court to order the employer to rescind the promotion of a worker against

whom the union alleged (and proved) instances of severe harassment of union

members in the workforce. Rejecting the contention of the union the Court stated:

'!..we must make it clear titat tlze grounds upon which the Union sought arz order of the Court to rescitzd Gibbs' appointment cannot be entertained. Even if the Corporation It ad undertaken or was obliged to observe the provisions of Clause 16, iite fact is tlzat Gibbs was appointed to a position wlticlt tooii him out of the bargaining unit and made him a part of tlze manageme;rzt of the Corporation 's undertaking. It is a well-establishedprinciple in industrial relations that an appointment to such a position is and must always be subject in tlze Jilzal analysis to tlte sole decision o j Management and for this reason weflnd it difficult to accept in tlze absence ofplain language to that effect that Clause I6 was intended to apply to an appointment or promotion to a managerial o f@e. We would observe however, that in as much as Gibbs had been selected from the bargaining unit for preferment to such an o ffZce it would have been good industrial relations practice for the Corporation to notify the Union of tlze proposed appointment avld consider arty representations that it might have felt disposed to make on behalf of another worker but the fact that the Corporation did not do so furizislzes the Court with no autltority in tlze circun?stances of this case to rescind his prefermeat to the offlce ofstation supervisor as tlte Union requested.

The Court seems to have given the tern 'hmnnagerinr' a very elastic

meaning. The worker in that case was promoted to the position of station supervisor,

a position jvhich in all probability was at die very lowest rung af the managerial

ladder. In tile present case the workers whose promotion the Union challen yed as well

as the Worker himself would certainly meet the definition of "'ma~ltgemefzd" as was

applied in T,D, 36 of 1965 -.

a case with some similarities to this one, the C a ~ r t with

apparent reluctance, declined to interfere with the Company's decision ta promote

certain workers diead of motller.

In the course of rejecting an application for promotion of a worker in

&thoriq of Trinidad and Tobago the Court said -

"It is not for the Cotcrt to pat itself itz the shoe$ af the em loyer but to determgne whether tlte employer's F ctc OM i~2 the cireurnstnrzces was rensolzable. "

Where there is zt collective agreement which sets out preclse criteria for

prornotiori and a worker has satisfied those criteria the Court is prepared to order the

employer to carry out the terms of the colfective ageement. This frappened in T.D,

2 2 h f 1987 behveen Tritnspoxt a11d IndustriaI Workers Wxxion and Secondary Schctuk

M;linte~~ance Tr;libi~gancl Saurity Company L imia ; where the employee bad acted ---- for a continuails period in excess of thee months in a vacant position, that being

presc~bcd in the relevmt collective agreement as an entitlement to co~~fimation in the

higher position.

there was a collective agreement in

whch criteria were prescribed for promotion. Although the employee in that ease was

the most senior candidate for promotion to a particular position the Court held that,

consistent with the relevant provision of the collective agreement, seniority was not the

dominant con side ratio^^. f i s Ho~lour Mr. Addison Khan (as lie then was) said i11 that

case:

"1 must enzplzasize that it is rzot the fuacticln of this court to deprive aI"t eu~tpkqyer of his rigfat to choose Izis awn! employees. It is not withiti tJae province ufthis Court to take over tlze furzctions of the employer in!

relatio~z to the selection of lzis employees. This Carcrt will only interfep.e with an errzployer" decisioxz coneer~ing the pronzotiorz of Itis employees in acepHanal circumstances and only zyu strong case is made out justzyyir'tg its iuttepventian It wilt intewme orxly where its iirfervention is necessary to protect an e~~ployee against avt unjust ur unfair exercise ofthe e~eployer's right or w3zere the eunployer" sctiurz is harsh U P oppressive ar izut in aecotdance with tlze principles ofguod indztstrial relations practice, ''

Having considered the issues, the Cowt found that the decision of the Port

Authority to not promote the worker was not hash or oppressive or contrary to the

principles of good industrial relations practice.

We have considered the issues in this case and it is our view that unless

the Union can slmw that tlie Worker lrras xnet clearly prescribed criteria for promotion,

laid down in a colfective agreement (or in an individual contract of employment, as the

case may be) the Worker camot claim a right to be promoted. The employer retains

the right to select his employees as a basic element of his managerial prerogative. To

mdemine the exercise of that element of the employer's prerogative the Union must

show that the Compaay's failure to promote the Worker was in all the circtunstances

harsh and oppressive or not in accordance with the principles of good industrial

relations practice. In OLE view the Unioxl has failed to discharge that burden. The

essence of the Union's cfaim is etlat the Worker. was discxkxiia;ited against in that others

wliose seniority, experience and training he considered inferior to lzis, were promoted

ahead of him. An dlcgation like that obliges tlie Union to show that those employees

with who~~x the Worker compared hi~nself were, in fact, inferior to him in the meas

used for xmking that con~parison. The Union would be reqtlired to satis@ the Court

that the qualifications, the experience and the relative seniority of Messrs Shakeer,

Archibald and Ra~noutar were less than those of the Worker. By his own admissiaxl

the worker was unable to state any of h e relevant particulars of those workers, Absent

sucft. pearticulars, there is no basis an which to make any comparison between fiimself

imd them. Tliat gap it1 the Union's evidence canriot be straclicfled by the mere allegation

rtladc by tlic Worker in tlie course of his evidence that he was no less qtialified tltai

any of those other employees.

We adopt the dicta of f i s Honour: Mr. Addison KEim quoted above to dxe

eEect that it is not the province of B.ie Court tn take aver the functions of the employer

jn relation to the selection of his employees. The Ux-rion's evidence presented to the

Court in this case is insufficient to satisfy the Court that the Company's failure to

promote the Worker was harsh and oppressive or not in accordance with t l ~ principles

of good industrial relations practice.

We are left, therefore, with no alternative but to dismiss the application

of the Union. We do so.

Gee2 0. Bernard

Chairman.

George Ramsubeik

Member.