Jan 01, 2014 Features / Columnists, Peeping Tom

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The Guyana Agricultural and General Workers’ Union (GAWU) has reason to be confused in relation to the arbitration ruling in the case involving the dismissal/suspension of a worker from the sugar corporation.
The gist of the ruling, as gleaned from the reports in the media, is that the terms of reference of the arbitration precluded the arbitrator from determining whether the actions of the corporation were justified. As such, the arbitrator could only pronounce on the question of whether the employee was dismissed or suspended.
That is confusing because the ruling constitutes a narrow construction of the terms of reference and such a restricted construction does not necessarily accord with the common understanding of the purpose of arbitration proceedings.
Arbitration is a dispute settlement mechanism. Having failed to resolve the dispute between the union and the sugar corporation through conciliation, the Ministry of Labour invoked arbitration proceedings and appointed an arbitrator.
Arbitration is a process of adjudicating on a dispute. It is not, like an inquiry, merely to determine facts even though this is an aspect that is necessary in order for a determination to be made.
An inquiry proper would have been the appropriate mechanism to determine whether the employee was dismissed or suspended, since the purpose of an inquiry is to determine the facts of the matter.
The purpose of arbitration on the other hand goes beyond a determination of facts. It is to hear the evidence on both sides and make a decision.
The problem that has arisen in this matter is that the arbitrator felt confined by the terms of reference which he was handed. He did at the end of the proceedings indicate, according to the union, that unless the terms of reference were amended the matter could not proceed further.
As such he operated on a narrow construction of the terms of reference he was handed, and determined that he could not rule on the justification of the action taken against the employee.
A wider construction of the terms of reference may have led to such a determination but the arbitrator opted to stick to his understanding of the terms of reference and thus made his ruling, to wit, that the employee remains dismissed.
The union is of the view that the ruling should have been different. They felt that in the circumstances the ruling should have been that the employee remains suspended.
The union here is equally confusing because in effect they are not questioning the narrow construction of the interpretation of the terms of reference but are questioning the actual finding of the arbitrator.
They should have been insisting that the terms of reference should have been so interpreted as to allow the arbitrator to determine not just the action taken against the employee, but whether such action was justified.
The problem therefore revolves around just what dispute went to arbitration. This is what the union needs to clear up with the Ministry of Labour.
The Ministry in turn needs to come forward and explain its understanding of the dispute that it put in front of the arbitrator. Did it intend only for the arbitrator to rule on whether the employee remains lawfully dismissed or suspended? Or did it also intend for there to be an inquiry into whether the action taken, be it dismissal or suspension, was justified? That is what the Ministry of Labour needs to explain. If it is the view of the Ministry that the purpose of arbitration was simply to decide on whether the action taken by the sugar corporation amounted to dismissal or suspension, then there is nothing the union can do because this narrow construction was what the arbitrator would have ruled on.
If on the other hand the dispute that the Ministry referred to arbitration was expected to pronounce not just on what action was taken but also on the propriety of such action, then the Ministry should agree to an amended terms of reference to allow for a wider determination.
My point is that the very nature of arbitral proceedings should not have confined or limited the arbitrator to only considering the question of whether the employee was dismissed or suspended but should have equally allowed for a determination as to the justification for the action determined to have been taken against the employee.
This wider construction of the terms of reference did not take place. It is now for the Ministry of Labour to explain precisely the nature of the dispute that it referred to arbitration. This will determine whether the arbitration process can be reopened or whether the recent ruling is a final and definitive determination of the dispute that was put to arbitration.

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