Branch Developments Ltd T/A Iberostar Rose Hall Beach and Spa Resort v The Minister of Labour and Social Security

• Jurisdiction: Jamaica
• Judge: Wint-Blair, J.
• Judgment Date: 14 October 2021
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2018 HCV 04348

[2021] JMSC Civ.160

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2018 HCV 04348

Between

Branch Developments Limited T/A Iberostar Rose Hall Beach and SPA Resort

Claimant

and

The Minister of Labour and Social Security

Defendant

and

John Johnson

Interested Party

IN OPEN COURT

Mr. Gavin Goffe and Mr. Matthew Royal instructed by Myers, Fletcher & Gordon, Attorneys-at-Law for the Claimant

Ms. Kamau Ruddock instructed by the Director of State Proceedings for the Defendant

Ms. Bobbie-Ann Malcolm, instructed by Nigel Jones & Co., Attorneys-at-Law for the Party directly affected

Judicial Review — Whether industrial dispute existed at time of referral to Minister — Whether referral of dispute to IDT ultra vires — Labour Relations and Industrial Disputes Act, section 11A(1)(a)(i)

Wint-Blair, J.

1 Pursuant to the grant of leave for judicial review, the claimant filed a fixed date claim form seeking the relief set out below:

Judicial Review

The court adopts the following statement as correctly reflecting the law: “The power of judicial review may be defined as the jurisdiction of the superior courts to review laws, decisions, acts and omissions of the public authorities in order to ensure that they act within their given powers. Broadly speaking, it is the power of the courts to keep public authorities within proper bounds and legality.” 1

• 1. An order of certiorari to quash the decision of the defendant to refer a dispute between the claimant and its former employee, Mr. John Johnson, to the Industrial Disputes Tribunal (“IDT”).

• 2. Costs

• 3. Such further and other relief as the court deems just.

Background

2 Two preliminary points were dealt with before the hearing of evidence, the effective date of termination was agreed as January 23, 2013. Mr. Goffe also suggested that the dispute arose on April 24, 2013, however this may have been an error on the part of counsel at the time. The interested party Mr. John Johnson was absent from the hearing due to illness, he was not available for cross-examination. Counsel Mr. Goffe, did not believe his case would be prejudiced by the absence of Mr. John Johnson, thus the trial proceeded without his viva voce evidence.

3 Mr. Johnson complained of unjustifiable dismissal in a letter to the Ministry of Labour and Social Security on April 24, 2013 2. In that letter, he sets out that his services were terminated with immediate effect. The termination letter did not state that he was being terminated for poor work performance, rather he said he was informed of this. Mr. Johnson does not say by what means he had been so informed. He also relies on a performance appraisal of February 5, 2013, which was conducted thirteen days after the date of termination. The termination letter has not been exhibited to the affidavit of Mr. Johnson. A copy was later produced to the court and has been marked Exhibit 2. He goes on to cite breaches of the employee handbook and that his dismissal is in breach of the principles of natural justice.

4 The evidence on affidavit from Mr. G. Anthony Ferguson, Human Resource Manager, for the claimant, discloses that Mr. Johnson was terminated for poor performance. Two issues arise for determination.

5 Issues

• a) Was there an industrial dispute within the meaning of the Labour Relations and Industrial Disputes Act (“LRIDA”), at the time of the referral by the Minister to the Industrial Dispute Tribunal (“IDT”).

• b) If there was a dispute, did the Minister act ultra vires the LRIDA in referring a dispute to the IDT after an inordinate delay between the time the dispute arose and the date of the referral.

6 On the issue as to whether there was an industrial dispute, the agreed evidence is that John Johnson, the interested party, was a non-unionized worker employed to the claimant.

7 The claimant's position as regards attempts at conciliation is that both parties attended three such meetings on June 17, 2013, July 6, 2013 and January 17, 2014. The matter was not resolved and there was no future communication between the parties after January 14, 2014. 3

8 Mr. Johnson in his affidavit, says that he was employed as an electrician by the claimant on a six-month contract. His contract was renewed and the renewal of the last employment contract was on or about September 20, 2011 for a further six months. The contract was not further renewed. On or about May 23, 2012, he was transferred to Iberostar Suites and given a new position which was room technician. On January 23, 2013 he was dismissed from his employment and given a termination letter which did not state the basis for termination 4. Mr. Johnson agrees that there was no further communication between the parties after January 14, 2014. However, he disagrees with the number of meetings held in an effort to resolve the matter, he adds a fourth meeting on February 26, 2015 5. Mr. Johnson exhibited at JJ1, a letter from his counsel to the Ministry of Labour and Social Security dated December 18, 2013. This letter indicated that the parties had failed to arrive at a settlement and that they had been unable to convene a further conciliation meeting, due to the lack of a positive response from the claimant's attorneys as to a convenient date.

9 In a letter exhibited at JJ3, counsel for Mr. Johnson in a letter dated February 17, 2017, addressed to Mr. Michael Kennedy, Chief Director, Industrial Relations, Ministry of Labour and Social Security, referred to his letter of complaint (JJ2, dated April 23, 2013) and to a Ms. Tameika McHayle of the Ministry. The letter

from counsel indicated that Ms. McHayle had recommended that the matter be referred to the IDT. Mr. Johnson's counsel sought to enquire as to whether the matter had been so referred. 6

10 An affidavit in answer from Tameika McHayle was filed by the Director of State Proceedings on February 28, 2019. The affiant is a Conciliation Officer in the Industrial Relations Department, Ministry of Labour and Social Security. She was charged with convening and chairing meetings in respect of the dispute between the claimant and John Johnson 7. She stated that initial conciliation meeting was held on June 17, 2013 and no settlement was reached.

11 In paragraph 8, Ms. McHayle says conciliation meetings were held on July 26, 2013 and January 17, 2014. In cross-examination, Ms. McHayle said that on September 18, 2014, she had made a recommendation to Mr. Michael Kennedy that the dispute be referred to the IDT. The file was instead returned to her for further attempts at resolution of the dispute; the dispute remained unresolved. There was another conciliation meeting on February 26, 2015.

12 Attached to the affidavit of Ms. McHayle is an email dated March 11, 2015 8. It refers to a telephone conversation between Ms. McHayle and Mr. Gavin Goffe, counsel for the claimant. Ms. McHayle attempted to convene a conciliation meeting on March 31, 2015 in respect of three persons, with the meeting in respect of Mr. John Johnson scheduled for the same date at 1:00pm. Mr. Goffe

responded saying that he “could not convince his client to return to discuss John Johnson.” 9

13 Ms. McHayle replied on March 12, 2015, saying that she would be discussing the claimant's response with her Principal and would be in touch shortly. On March 16, 2015, Ms. McHayle sent another email to Mr. Goffe which stated that, if the claimant remained resolute, then the matter would be referred to the IDT. She attempted to convene a meeting regarding Mr. Johnson on the date she had earlier proposed which was March 31, 2015. This time, she tried changing the time of the meeting to 2:00pm. There is no indication as to whether this meeting was held or whether counsel for Mr. Johnson was contacted. There is nothing in the affidavit of Mr. Johnson about these unilateral discussions. Counsel for Mr. Johnson wrote letters dated February 21, 2017 and March 23, 2017 to the Ministry enquiring whether there had been a referral to the IDT. 10

14 The Ministry responded on March 28, 2017 to letters dated February 21 and March 23, 2017 from counsel for Mr. Johnson. The response of the Ministry was that it was currently “investigating the status of the matter in order to properly address your concerns in a wholesome manner.” 11. This was also the date that Ms. McHayle said in cross-examination, was the date on which she had sent the file to Kingston with her second recommendation of even date, that the dispute be referred to the IDT.

15 In an email dated April 21, 2017, Ms. McHayle attempted to convene yet another conciliation meeting to be scheduled for May 5, 2017 at 3:00pm. Counsel for the

claimant could not accommodate “3 meetings within the revised time period”. He suggested May 25, 2017, then went on to state in the email to Ms. McHayle that in his view, this matter was far too old to still be considered an industrial dispute.” The response of counsel for Mr. Johnson has not been exhibited. There is nothing in the affidavit of Mr. Johnson to suggest that his counsel was aware of the communication between Ms. McHayle and Mr. Goffe regarding conciliation meetings nor of this opinion proffered by counsel for the claimant

16 In an email of May 11, 2017 12 between Ms. McHayle and counsel for the parties, there was an attempt to convene one more conciliation meeting to be scheduled for May 19, 2017 at 3:00pm at the Ministry's office in Montego Bay, St. James. She said in her affidavit that both counsel for the parties indicated that the proposed date was convenient for them. However, she withdrew this paragraph in her affidavit in cross-examination by saying that the parties had not agreed on a time to meet and as a result that proposed meeting was not held. In paragraph 14, Ms. McHayle stated that she received a telephone call from counsel for the claimant on January 15, 2018 seeking an update. She goes no further.

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