The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

THE Water & Sewerage Corporation could not be expected to “bolt all doors” to keep out a former union president who disobeyed orders to go on vacation by continuing to work, the Court of Appeal has ruled.

Appeal justice Indra Charles, in a unanimous verdict backed by her fellow judges, also found that no evidence was placed before the Industrial Tribunal for it to make the finding that the Government-owned utility was “motivated to take further action” against Ednel Rolle because he had launched “grievance” proceedings permitted by the industrial agreement.

And, in overturning the earlier Industrial Tribunal verdict in favour of the ex-president of the Water and Sewerage Management Union, she found that Mr Rolle placed himself “between a rock and a hard place” through a “volte face” that saw him disavow the industrial agreement he had initially relied upon to challenge the Corporation.

The dispute only involved a claim for $5,590, and the Court of Appeal suggested it had become “a matter of principal” possibly influenced by the fact that Mr Rolle was a former union leader.

It was triggered when Mr Rolle refused to take 17 days’ vacation, beginning on December 17, 2018, as ordered by Water & Sewerage Corporation management. He instead worked for that period and was paid his regular salary, but did not receive vacation pay for those 17 days prior to his retirement on January 21, 2021.

“He asserted that Water & Sewerage Corporation’s deputy general manager unilaterally submitted and approved 17 days’ vacation leave to be taken by him without his consent,” appeal justice Charles said of Mr Rolle. “In defiance of the mandatorily imposed vacation, Mr Rolle elected not to proceed on vacation leave but instead attended work for the entire period. He thereafter sought vacation pay for the 17 days.

“Several months later, on August 8, 2019, Mr Rolle commenced the grievance process mechanism under Article 10 of the industrial agreement by filing a grievance memo to Water & Sewerage’s acting general manager, Robert Deal, relative to Water & Sewerage Corporation enforcing its policy on excess accrued vacation.”

At the grievance meeting five days’ later, it was pointed out that the water utility only allowed employees to accumulate a maximum of three years’ accrued vacation time. Anything that exceeded this limit was to be refused unless vacation was delayed due to staff members having to respond to emergencies.

“It was further discussed that Mr Rolle was ordered to be placed on vacation effective December 17, 2018, for a period of 17 days, but he refused to follow management instructions and continued usual duties,” the Court of Appeal judgment noted.

“Additionally, by letter dated August 13, 2019, Mr Deal advised Mr Rolle that the excess vacation policy was clearly announced and he should proceed to stage three of the grievance procedure if desired.

“Mr Rolle was also advised that, pursuant to... the industrial agreement, his refusal to follow the manager’s instructions constituted a major breach of discipline and amounted to gross insubordination. As a result of the insubordination, Mr Rolle was reprimanded.”

The former union president following his retirement, filed a trade dispute with the Ministry of Labour on September 2, 2021, over the Water & Sewerage Corporation’s alleged failure to pay him the vacation leave he was entitled to under the Employment Act. The utility, though, in its defence argued that what Mr Rolle was claiming would violate the three years’ accrued maximum vacation limit set in the industrial deal.

The Industrial Tribunal, in its verdict, found for Mr Rolle because the Water & Sewerage Corporation had “permitted” him to work for those 17 days when it was “open to them to refuse him access to its premises”.

It found: “To reprimand what you permit is not effective ‘management’. By no means should any employee be penalised by reason of management’s failure to effectively manage its own operations.” But, in its appeal, the state-owned utility argued that the Tribunal, having found it had a right to mandate vacation time, was mistake when it failed to find Mr Rolle had forfeited the 17 days claimed.

Dion Smith, the Water & Sewerage Corporation’s attorney, pointed out that the industrial agreement’s article 51.07 “creates a policy that employees would only be allowed to accumulate a maximum of three years vacation”. And, even though the industrial agreement had expired, this policy was still in effect.

Obie Ferguson KC, representing Mr Rolle, countered that this article was no longer valid because the industrial deal had expired. However appeal

justice Charles ruled: “It is palpable from article 51.07 that vacation in excess of three years will be forfeited unless the employee’s application for vacation leave has been refused because of the exigencies of the service.

“In my opinion, the vice- president erred in law by finding that Mr Rolle had earned the benefit of vacation which could not be forfeited. In this case, Mr Rolle was mandated to go on vacation but he refused to do so. At no time did Water & Sewerage Corporation prevent him from doing so.

“In fact, he had done so on many previous occasions. There is no right to accumulate vacation and it is not the same thing as having worked overtime and the employer’s policy not to pay for overtime which is clearly a breach of the Employment Act.”

Appeal justice Charles continued: “The simple facts of this case are, in December 2018, more than two years before Mr Rolle’s retirement date, Water & Sewerage Corporation through its acting general manager, Mr Deal, placed Mr Rolle on mandatory vacation since he had exceeded the three-year accumulation by 17 days.

“Mr Rolle refused to proceed on vacation and those days were forfeited in accordance with Article 51.07 of the industrial agreement. This cannot be stated to constitute ineffective management.... Mr Rolle was a senior manager at Water & Sewerage Corporation. He was told to proceed on mandatory vacation.

“He categorically refused to proceed on vacation and reported to work every day during the 17 days which were earmarked as mandatory vacation. In my opinion, Mr Deal acted as any effective manager could to prevent Mr Rolle from accumulating vacation leave,” she added.

“It would be unrealistic to expect him to police this mandatory instruction or to take other highly controversial and/or antagonistic step - for example, physically removing Mr Rolle from the premises and/or bolting all doors to prevent him from accessing his work station.

“In my judgment, the vice-president erred in law. The finding that the management of Water & Sewerage Corporation did not effectively manage its operations and employees is misconceived and unsupported by the evidence.”

Mr Rolle also sought to argue that, once the industrial agreement expired, his contract was governed by the Employment Act and its “better conditions.... came into effect” meaning he was entitled by law to vacation.

However, appeal justice Charles found: “The fact that the industrial agreement provides for accumulation of vacation up to three years is a greater benefit than is provided for in the Employment Act, which does not permit the accumulation of vacation and payment in lieu of taking the same.

“In my judgment, the vice-president, having found that the Employment Act is silent on the issue of accumulation of vacation, erred when she found that

Article 51.07 of the industrial agreement attempts to limit the accumulation of vacation which is contrary to the provisions in the Employment Act as it contravenes the provisions of section 4 of the Act.

“As Water & Sewer- age Corporation correctly pointed out, this finding is an error as it is the Employment Act which must not be construed as limiting or restricting any greater benefit.” Appeal justice Charles also found that Mr Rolle’s attempt to gain 17 extra days “ran afoul” of both the industrial agreement and Employment Act, and that it was the former that gave him “greater benefit”.

“In my judgment, there is no legal basis upon which Mr Rolle could assert that Water & Sewerage Corporation ought to pay him vacation pay for the 17 vacation days which he worked when he deliberately refused to proceed on vacation upon being man- dated to do so,” she added.

“Additionally, Mr Rolle commenced the grievance procedure under the industrial agreement but then did a volte face and argued that the industrial agreement, having expired, was of no relevance and the Employment Act kicked in to govern his contract of employment.

“There is no statutory provision that permits an employee to ‘roll over’ his

vacation leave from one year to the next. As I see it, M Rolle’s better benefits were found in the expired industrial agreement, which he chose to distance himself from. On his own arguments, he was stuck between a rock and a hard place.”

Sir Michael Barnett, the Court of Appeal president, added: “An employee cannot refuse to take vacation. When an employer has directed an employee to take vacation, the employee must do so. If he refuses to do so, that in my judgment is an act of gross misconduct.

“The taking of vacation is not simply a benefit to the employee. It is also in the interest of the employer that an employee takes vacation. Vacation gives an employee rest and thus improves his productivity. It also gives an employer an opportunity to audit an employee’s work while the employee is on vacation.....

“I am satisfied that an employee cannot claim a right to vacation pay for a vacation which he has simply refused to take, notwithstanding that he has been directed by the employer to take vacation. To hold otherwise would severely undermine an employer’s right to determine when an employee would take his vacation.”