Former San Fernando General orderly loses wrongful dismissal case

The content originally appeared on: Trinidad and Tobago Newsday

Justice Ricky Rahim

AN orderly who was dismissed in 2019 by the South West Regional Health Authority (SWRHA), for inciting and instigating nine other orderlies to engage in industrial action, has lost his wrongful dismissal claim for compensation.

On Tuesday, Justice Ricky Rahim ordered Andy Acosta to pay the SWRHA’s costs in defending his lawsuit in which he claimed he was wrongfully terminated.

The judge also discharged an interim order he made in July 2019, for the authority to preserve an orderly position at the hospital until the determination of Acosta’s claim.

Acosta was represented by Lloyd Elcock while the SWRHA was represented by attorneys Roger Kawalsingh, Ashely Roopchansingh and Carla Scipio.

Acosta took the authority to court after he was dismissed on April 3, 2019, when a disciplinary tribunal of the authority found him guilty of inciting and instigating nine orderlies to engage in industrial action at the San Fernando hospital’s accident and emergency department in January of that year.

The authority maintained Acosta’s actions were an illegal act since medical orderlies, as essential service staff, cannot engage in industrial action and the incident disrupted the A&E’s operations endangering the lives of patients.

The SWRHA’s attorneys also argued Acosta was told of the investigations into his actions, appeared at the tribunal’s hearing and could only engage in industrial action if he believed his life was in danger.

At the time, Acosta was said to be a leading member of the Unified Health Sector Workers Union which must receive authorisation from the employer before engaging in industrial action.

It authority also maintained the incident in January 2019, was not an isolated one, and Acosta was accused of disruptive and disrespectful behaviour.

At the trial, one of the orderlies who refused to work on the day in question, testified.

Acosta also gave evidence, denying being responsible for the participation of the orderlies in industrial action.

Testifying for the SWRHA were the general supervisor for the orderlies, the manager of hospital administration and the general manager of human resources.

The judge was told the action of the orderlies on January 8, led to delays in transferring patients and left the A&E department overcrowded, jeopardising patients’ lives.

In his ruling, Rahim said it was clear the orderlies were essential workers prohibited from taking industrial action which included a slow down, work stoppage or refusing to work.

He said it was a matter of evidence that the orderlies refused to work causing a backlog in the movement of patients at the hospital.

File photo: Attorney Roger Kawalsingh who successfully represented the SWRHA in a wrongful dismissal lawsuit brought against the authority by a former orderly.

“The issue, therefore, is whether the claimant called for or caused same… Upon examination of the evidence the court finds that it was more likely than not that the claimant called for such action or caused such action.”

He also held it was “abundantly clear on the totality of the evidence,” Acosta was “indeed the one who called for and caused the industrial action on that day and the court so finds.”

Rahim also said it could not be found that the SWRHA breached its contract with Acosta by wrongfully dismissing him.

In addressing a preliminary point raised at the trial, said when allegations against an employee crossed into the realm of alleged criminal conduct the authority must consult with the Director of Public Prosecutions.

He said in this case while the authority should have done so after the tribunal found Acosta committed an offence defined as a criminal offence in law since no criminal charges had been brought by the police, it was not fatal to the case.

“In such a case, where a criminal offence appears to have been committed by an employee, the Board is duty-bound to ascertain from the Director of Public Prosecutions whether he contemplates criminal proceedings against the employee before instituting disciplinary action against the employee.

“There is good reason for this as should there be a prosecution, that prosecution ought properly to take priority over a disciplinary hearing so as not to interfere with the rights of the accused or prejudice a fair hearing.

“For this reason, disciplinary matters that involve allegations of criminal conduct are usually delayed until the finding of the court is made known,” he advised.

In his lawsuit, Acosta claimed because of his dismissal, he is unable to find suitable employment and has suffered financial damage.