Orville Taylor | Doctoring the IDT

‘Patients’ and ‘patience’ are homophones, and we would be unreasonable to deny that the Jamaica Medical Doctors Association (JMDA) has lots of both.

With a doctor-patient ratio of 0.5 to 1,000, Jamaica is below the recommended standard of the World Health Organization (WHO) and the Pan American Health Organization (PAHO).

For good measure, the average across CARICOM is right at that benchmark, with Barbados topping out at 2.5 per 1,000.

Being a doctor in the government service is harder than a politician speaking only the unadulterated truth. Jamaica has the highest violence and homicide rate in the Anglophone Caribbean. For all the efforts of the National Road Safety Council and the police, road crashes and fatalities put immense pressure on the meagre resources available.

Add to this the paradox of a population with high life expectancy and an ageing demographic, while seeing a linear increase in lifestyle diseases, and the picture becomes even gloomier.

Their shifts are as long as donkey ears ... perhaps I might have got the anatomy mixed up. But working anything past eight hours in a single day is a lot, even for those persons in comfortable office jobs. Running from ward to ward, patient to patient, balancing the stress of overworked nurses who, when upset, push out their mouths as if telling themselves secrets.

Simple fact: the health sector is a very trying environment and, given the challenges, its workers must be properly compensated or, at a minimum, be given all their entitlements, according to their contracts.

Now, here is a short lesson in industrial relations. Most issues are disputes, which are disagreements arising between employer and workers over anything relating to the terms and conditions of the contract of employment. Rights disputes emanate from already agreed entitlements under the contract. Interest disputes are those in which either party wishes to include new terms or conditions.

Where disputes are unresolved and the intervention of the Ministry of Labour fails to bring about a resolution, they typically get referred to the Industrial Disputes Tribunal (IDT) for determination.

Unique entity

An awesome and unique entity in our legal landscape, it is tripartite, with panellists comprising those appointed by the minister but nominated by: (i) employers; (ii) trade unions; and (iii) those independently chosen by the minister.

It has worked very well over the past 50 years. Generally, it determines right and wrong, and unlike regular courts, it can reinstate workers who are unjustifiably dismissed.

Still, it is limited in scope. It can only make awards based on its terms of reference (TOR). These TORs tend to be narrow and specific. Thus, if the IDT is asked to determine and settle a dispute over whether a dismissal was justified, it cannot award a lesser punishment, such as suspension, because that was not before it.

Therefore, no matter how important a secondary or adjacent issue might be to the case, it might provide evidence to help in the final adjudication, but cannot itself form part of the award.

One very important hamstring for the tribunal is that, under Section 12(7)(b), it cannot make an award that is inconsistent with the ‘national interest’.

This is a big deal because, although in its simplest form it addresses stated government policy, such as wage ceilings, it can become more nebulous when there is an implied dogma or practice.

Time limit

The IDT has a time limit within which it must complete its hearing and make an award, generally within 21 days, though extensions may be allowed with the consent of the parties. Six months is long. Still, circumstances may intervene.

Despite the number of documents to review and the total hearing days being similar, six months is a hell of a long time to wait. Justice delayed, justice denied, or justice hurried, justice buried?

One would think that a determination of the rate and quantum of overtime payment would be an easy thing to do. But often there are complexities beyond the surface. In fact, one might even wonder whether there might be greater reflection on the national interest requiring deeper contemplation.

Indeed, there are some mutterings that have reached one ear and stuck. My relationship with the IDT is more than 42 years old. Some of its members and I have shared work, growth paths, lunch, classroom spaces, living rooms and quality time. The integrity and character of these public servants I would defend far quicker than those of many other associates.

Nevertheless, there is a structural weakness of the tribunal which, I have recommended, needs fixing. Members must be given indefinite and secure tenure rather than be at the mercy of the minister’s pleasure.

It is easy for any reasonable bystander to conclude that the refusal by any minister to renew an expired contract, and hence the dismissal of any member, could be tied to an award which, though consistent with the national interest, might have ruffled the feathers of the white fowl colleagues of the minister, even if they did not themselves put lips to the black rooster.

And to the doctors, who are indeed caught between a rock and a hard place. Although the Labour Relations and Industrial Disputes Act allows for industrial action by essential-service workers to be lawful under certain circumstances, the IDT has the power to order that it not take place, even if it is ‘at fault’. Any worker who defies a no-strike order from the tribunal has committed an offence.

Moreover, if pushed, the tribunal can always make a ‘no award’ if it is in the national interest. To the doctors, I say: I know it is hard, but take time removing the hand from the lion’s mouth.

Orville Taylor is senior lecturer at Department of Sociology at The University of the West Indies, a radio talk-show host, and author of ‘Broken Promises, Hearts and Pockets’. Send feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.