Branch Developments Ltd T/A Iberostar Rose Hall Beach and SPA Resort Ltd v The Industrial Disputes Tribunal

JurisdictionJamaica
JudgeF Williams JA,Straw JA,D Fraser JA
Judgment Date15 October 2021
Neutral CitationJM 2021 CA 106
Docket NumberSUPREME COURT CIVIL APPEAL NO COA2020CV00002
CourtCourt of Appeal (Jamaica)

[2021] JMCA Civ 44

IN THE COURT OF APPEAL

BEFORE:

The Hon Mr Justice F Williams JA

The Hon Miss Justice Straw JA

The Hon Mr Justice D Fraser JA

SUPREME COURT CIVIL APPEAL NO COA2020CV00002

Between
Branch Developments Limited T/A Iberostar Rose Hall Beach and SPA Resort Limited
Appellant
and
The Industrial Disputes Tribunal
Respondent

and

Marlon McLeod
Party Directly Affected

Gavin Goffe and Mathew Royal instructed by Myers, Fletcher & Gordon for the appellant

Ms Althea Jarrett instructed by the Director of State Proceedings for the respondent

Lorenzo Eccleston for the party directly affected

F Williams JA
1

I have read in draft the judgment of Straw JA and agree with her reasoning and conclusion. There is nothing I wish to add.

Straw JA
2

These proceedings stem from an employment issue which arose in 2016, between Mr Marlon McLeod (‘Mr McLeod’), the party directly affected (previously referred to as the interested party), and his employer Branch Developments Limited T/A Iberostar Rose Hall Beach and Spa Resort Limited (‘Iberostar’), the appellant before this court.

3

On 2 February 2016, Mr McLeod was suspended from work without pay, pending investigations into allegations of fraud which involved a report to the police. Mr McLeod took issue with his suspension and made a complaint to the Ministry of Labour and Social Security (‘the Ministry of Labour’). In April 2018, after a series of conciliation meetings held by the Ministry of Labour, the issue of Mr McLeod's suspension was referred to the Industrial Disputes Tribunal (‘IDT’), the respondent before this court.

4

The terms of reference:

“To determine and settle the dispute between Branch Developments Limited (t/a Iberostar Rose Hall Beach and Spa Resort) on the one hand and Mr. Marlon McLeod on the other hand over the suspension of his employment.”

5

In June 2018, when the matter was set for hearing before the IDT, Iberostar objected to the terms of reference and the IDT advised that the objection would be referred to the Minister of Labour and Social Security (‘the Minister’) for her consideration. At that time, this would have been the Honourable Shahine Robinson.

6

Subsequently, in September 2018, Iberostar objected (by letter) to the hearing of the matter, on the basis that the IDT lacked jurisdiction. In that same month when the IDT reconvened, it took the decision to proceed to hear the matter, based on the original terms of reference and heard submissions from Iberostar, pertaining to its jurisdiction and certain procedures. A letter of objection to the IDT continuing to hear the dispute was read into the record. It is expedient to set this out, as these complaints were the focal point of the application for judicial review.

“Thank you for your letter dated August 13, 2018.

On behalf of our client, we hereby formally object to the IDT continuing to hear this alleged industrial dispute. Having carefully studied the matter, we are of the settled view that the Tribunal lacks the jurisdiction to hear or determine a dispute in relation to a suspension except (i) where the suspension is a disciplinary action or (ii) the worker is unionized.

The following are our reasons:

  • 1. The Tribunal lacks the authority, under Section 12 of the LRIDA to make an Award in relation to suspension. See Kirkaldy, Industrial Relations Law and Practice in Jamaica p. 168. In particular, the Tribunal lacks the power to order an employer to compensate or reinstate a worker who has been suspended. This supports the view that the IDT lacks jurisdiction entirely, but even if we were wrong about that, it is clear from what has been said thus far that Mr. McLeod is seeking compensation or reinstatement. If, as is clear, the Tribunal cannot award that, then the entire process could potentially result in a waste of the Tribunal's valuable time.

  • 2. Mr McLeod's suspension is an administrative one, pending an investigation which may or may not result in disciplinary action being taken against him. It is not disciplinary in nature, and it has not been alleged to be so by anyone.

  • 3. The Labor Relations and Industrial Disputes Act creates a clear distinction between the types of disputes that unionized workers may put before the IDT, on the one hand, and what nonunionized workers may put before the Tribunal. Thus, whereas a unionized worker may complain about ‘engagement, non-engagement, termination or suspension’ of his employment, a non-unionized member cannot complain about engagement or non-engagement.

  • 4. A suspension pending an investigation, or an interdiction, is not a dispute which can be brought by a non-unionized worker. As it falls to be treated as non-unionized engagement, a dispute of that nature can only be brought by a unionized worker, which Mr. McLeod is not.

On the matter of procedure, we repeat our objection to the employer being ordered to proceed first. We rely on the IDT's own rules of procedure, which in paragraph 18, state that ‘The prevailing practice is that in cases involving termination of employment, dismissals, suspension or other disciplinary action, the employer's side makes the first presentation and in all other cases the party whose claim or complaint gave rise to the dispute makes the first presentation.’ As we have already indicated, this suspension is not a form of disciplinary action and therefore it falls to be dealt with under ‘in all other cases’. Consequently, if the Tribunal rejects our argument on jurisdiction, we are nonetheless not prepared to present our clients [sic] case before Mr. McLeod presents his. We see no reason for the Tribunal to depart from its own rules of procedure in this case.”

7

Having heard the submissions, the IDT (through its chairman) made the following ruling:

“CHAIRMAN: … We have considered all the submissions made to us today, we wish to state that our jurisdiction to hear this matter emanates from the Minister's referral which is in the Act, the tribunal has jurisdiction to deal with the suspension of workers who are not members of any trade union.”

8

Counsel for Iberostar, Mr Goffe, advised that Iberostar was not prepared to proceed with the hearing and indicated that it intended to have certain decisions of the IDT reviewed by the court. To this end, judicial review proceedings were brought promptly by Iberostar. Leave was duly sought and obtained in December 2018, and the matter was heard on 28 October 2019, before J Pusey J (‘the learned judge’).

Proceedings in the Supreme Court
9

The fixed date claim form requested the orders as follows:

“1. An order of certiorari to quash the decision of the [IDT] to proceed to hear the alleged dispute between [Iberostar] and its current employee, Mr. Marlon McLeod.

2. A declaration that a suspension pending a disciplinary hearing constitutes ‘non-engagement’ under section 2 of the Labour Relations and Industrial Disputes Act.

3. A declaration that under the Labor Relations and Industrial Disputes Act, the Industrial Disputes Tribunal only has the power to award compensation and/or reinstatement in cases of unjustifiable dismissal.

4. In the alternative, an order of certiorari to quash the decision of the [IDT] to compel [Iberostar] to present its case before Mr. McLeod.

5. In the alternative, an order of mandamus to compel the [IDT] to direct Mr. McLeod to present his case first.

6. Costs.

7. Such further and other relief as the court deems just.”

10

The learned judge gave her reasons for judgment on 29 November 2019 and made the following orders:

“1. An order of certiorari to quash the decision of the [IDT] to proceed to hear the alleged dispute between [Iberostar] and its current employee, Mr. Marlon McLeod is refused.

2. It is declared that a suspension pending a disciplinary hearing does not constitute ‘nonengagement’ under Section 2 of the Labor Relations and Industrial Disputes Act for nonunionized workers.

3. It is declared that under the Labor Relations and Industrial Disputes Act, the Industrial Disputes Tribunal statutorily only has the power to award compensation and/or reinstatement in cases of unjustifiable dismissals.

4. An order of certiorari to quash the decision of the [IDT] to compel [Iberostar] to present its case before Mr. McLeod is refused.

5. An order of mandamus to compel the [IDT] to direct Mr. McLeod to present his case first is refused.

6. Cost[s] to the [IDT] and the Interested Party [Mr McLeod] to be agreed or taxed.”

The appeal
11

By way of notice of appeal, filed 10 January 2020, Iberostar indicated that two of the learned judge's orders were being appealed, namely, the orders numbered 1 and 6, as set out above.

12

The grounds of appeal are as follows:

“a. The learned Judge erred in awarding costs to the [IDT] and [Mr McLeod] given that there was no finding that [Iberostar] acted unreasonably pursuant to rule 56.15(5) of the Civil Procedure Rules, 2002.

b. The learned Judge erred by finding that the Labour Relations and Industrial Disputes Act empowers the [IDT] to fashion remedies that are not expressly stated in the Act.

c. The learned judge erred in relying on statements which were not before the Court as evidence in the proceedings.”

13

The appeal sought to challenge the learned judge's findings of fact, as well as her findings of law. These were particularised as follows:

“Findings of Fact

  • a. That the Party Directly Affected, the Interested Party in the Court bellow [sic], ‘was never reprimanded or made the subject of any disciplinary proceedings’.

  • b. That ‘by letter dated April 2, 2016 Mr. McLeod raised the issue of his continued suspension with the claimant. Several back and forth correspondence on the issue ensued, including communication from his attorney-at-law demanding his reinstatement.’

  • c. That the Party Directly Affected's ‘attorney had contacted the police and learned that there was no on-going investigation involving Mr...

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