Clayton Powell v Industrial Disputes Tribunal and Another

JudgeSimmons J
Judgment Date05 December 2014
Neutral Citation[2014] JMSC Civ 196
CourtSupreme Court (Jamaica)
Docket NumberCLAIM NO. 2014HCV00318
Date05 December 2014

[2014] JMSC Civ 196



CLAIM NO. 2014HCV00318

Clayton Powell
The Industrial Disputes Tribunal
First Respondent


Montego Bay Marine Park Trust
Second Respondent

Judicial Review — Fixed term contract of employment — Reinstatement — Determination of compensation where reinstatement is not ordered-Section 12 (5) of the Labour Relations and Industrial Disputes Act

Simmons J

This is an application by Mr. Clayton Powell, a former employee of the Montego Bay Marine Park Trust who is seeking leave to apply for judicial review of an award of the Industrial Disputes Tribunal (the IDT).


The second respondent is an environmental non-governmental agency which was formed in 1992 to protect the marine resources of the Montego Bay area.


The Applicant was initially employed to the 2 nd Respondent from March 2002 until September 2008. In January 2011 Mr. Powell was re-employed by the 2 nd Respondent as a Chief Ranger under a fixed-term contract that was slated to expire on January 16, 2012. That contract was terminated by the second respondent prior to that date on the basis that the claimant had utilized its equipment for personal profit without authorization. The Applicant raised his dismissal as an industrial dispute under the provisions of The Labour Relations and Industrial Disputes Act , ( the LRIDA ). The matter was referred to the Minister of Labour, who in turn, referred it to the IDT by way of letter dated the 29 th August 2012.


On the 23 rd October 2013 the IDT found that the claimant's dismissal was unjustifiable as the second respondent had failed to conduct a disciplinary hearing before it terminated his contract. The IDT declined to reinstate the claimant and made an award in the following terms:-

‘The Tribunal took into consideration the fact that Mr. Powell was employed on a fixed term contract which would have expired on January 16, 2012 and that the Tribunal does not possess the powers to extend this fixed term contract beyond the expiry date stated in the Agreement. The Tribunal does not therefore order reinstatement .

The Tribunal awards that Mr. Powell be compensated with an amount equivalent to the remuneration he would have received from October 18, 2011 to January 16, 2012 if he had not been dismissed’.


By way of a Fixed Date Claim Form, Mr. Powell seeks leave to apply for an order of certiorari in respect of that award.


The grounds of the application are as follows:-

  • i. The IDT erred in law in its ruling that it would not order reinstatement as it had no power to extend a fixed term contract of employment beyond the expiry date;

  • ii. The IDT erred by failing to consider all of the relevant factors that affect the quantum of damages when a fixed term contract is unjustifiably terminated.


The application is supported by the claimant's affidavit filed on the 23 rd January 2014.


The first respondent has elected not oppose the application.


The second respondent has filed two affidavits both of which were deponed to by Shaun Henriques, an Attorney-at-law and a Director of the second respondent. They are dated the 25 th February and the 24 th March 2014, respectively.

Applicant's Submissions

Mr. Goffe stated that the Claimant is seeking to challenge the remedy which was prescribed by the IDT. It was submitted that based on the decision inTyndall et al v. Carey et al 2010 HCV 00474 (delivered on February 12, 2010) the Court is not required to conduct an in depth examination of the evidence in the matter, but it must ensure that the grounds are not fanciful or frivolous.


He submitted that the IDT has the jurisdiction to order reinstatement and could have made such an order in respect of the applicant. Reference was made to section 12 (5) (c) of the LRIDA which states:-

‘Notwithstanding anything to the contrary, where any industrial dispute has been referred to the Tribunal –

  • (a) ………

  • (b) ………

  • (c) if the dispute relates to the dismissal of a worker the Tribunal, in making its decision or award –

    • (i) may, if it finds that the dismissal was unjustifiable and that the worker wishes to be reinstated then subject to paragraph (iv), order the employer to reinstate him, with payment of such wages, if any, as the Tribunal may determine;

    • (ii) …

    • (iii) …

    • (iv) shall, if in the case of a worker employed under a contract for personal service, whether oral or in writing, it finds that a dismissal was unjustifiable, order the employer to pay the worker such compensation or to grant him such other relief as the Tribunal may determine, other than reinstatement ,

      and the employer shall comply with such order’.


He stated that prior to 2002 the IDT was required to order reinstatement of an employee where it had made a finding that the dismissal was unjustifiable and the employee had such a desire. Reference was made to the decision of the Privy Council inJamaica Flour Mills v. The Industrial Disputes Tribunal and National Workers Union (Intervenor) 2005 UKPC 16 2005 UKPC 16; [2005] All ER (D) 420, in support of that submission.


Mr. Goffe also submitted that the IDT had improperly exercised its discretion when it declined to reinstate the applicant on the basis that at the time of its ruling his contract would have already expired. He stated that the Jamaican legislation unlike some others, allows persons with fixed term contracts to bring an action for unjustifiable dismissal. He argued that if the IDT has the discretion to order reinstatement where the position that the employee previously occupied no longer exists, it should enjoy similar powers where the contract had already expired at the date of the hearing.


He stated that based on the wording of the award, the only factor on which the IDT based its decision not to reinstate the applicant was the date of the expiration of his contract. He argued that the plain meaning of the words used was that the IDT was of the view that it did not have the powerto reinstate the Claimant once the contract had expired prior to the hearing of the dispute.


Counsel submitted that the IDT ought to have considered whether it was likely that the applicant's contract of employment would have been renewed. He stated that evidence was lead at the hearing as to whether the date of the contract would have been the Claimant's final date on the job. Mr. Goffe submitted that based on the second defendant's own evidence the applicant was given a fixed term contract because there was uncertainty as to whether there would be grant funding for it to continue its operations. That funding was secured and the second respondent has continued to operate and invited applications for Mr. Powell's position.


Mr. Goffe referred to the affidavits of Shaun Henriques dated February 25 and March 24, 2014, and stated that there was no challenge to the power of the IDT to order reinstatement.

Second Respondent's Submissions

Counsel representing the second respondent argued that the Applicant must satisfy the Court that his claim has a realistic prospect of success and is not subject to a discretionary bar such as delay or availability of an alternative remedy. Reference was made to the case ofSharma v. Brown-Antoine [2007] 1 WLR 780 [2007] 1 WLR 780 which was applied in this jurisdiction by Sykes J in R v. IDTex parte J. Wray & Nephew Ltd [2009] HCV 04798 (delivered on the 23 rd October 2009) and Mangatal J in Digicel v. OUR [2012] JMSC Civ 91 (delivered on the 12 th day of July, 2012).


Mrs. Gentles-Silvera stated that in light of the cases cited above, this court is not only mandated to refuse leave to apply for judicial review in respect of hopeless cases but also those which have no realistic prospect of success. She also argued that an application should not succeed simply because it is dressed up in the correct formulation. In other words an applicant cannot simply state that the award of the IDT is ‘erroneous in law’ or ‘wrong in law’ without adducing affidavit evidence to substantiate those assertions. He must demonstrate that he has a case which has a realistic prospect of success.


It was submitted that the Applicant in the present case has failed to meet this threshold.


Counsel also stated that the application should be refused on the basis that an award of the IDT is final and conclusive except on a point of law and there was no error in law in the Tribunal's award. Reference was made to Section 12(4) (c) of the LRIDA in support of that submission. It states as follows:

‘12-(4) An Award in respect of any industrial dispute referred to the Tribunal for Settlement —

(c) shall be final and conclusive and no proceedings shall be brought in any court to impeach the validity thereof, except on a point of law.’


She indicated that the effect of this section was considered in the case ofThe Jamaica Public Service Company v. Bancroft Smikle (1985) 22 JLR 244, 249 where Carey JA stated:

‘A decision of the IDT shall be final and conclusive except on a point of law. That is the effect of section 12 (4) (c) of the Labour Relations and Industrial Disputes Act. Accordingly the procedure for challenge is by way of certiorari and as is well known, such proceedings are limited in scope. The error of law which provokes such proceedings must arise on the face of the record or from want of jurisdiction. So the court is not at large; it is not engaged in a re-hearing of the case. Parliament created a body qualified in the field of industrial relations to dispose of matters arising in that area of the country's social and economic life.’


Mrs. Gentles-Silvera submitted that based on the above statement of the law, judicial review of an award of the IDT is limited in scope and even where there is an...

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2 cases
  • Spur Tree Spices Jamaica Ltd v The Minister of Labour and Social Security
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    • Supreme Court (Jamaica)
    • 17 July 2018
    ...situation was analogous to an employee being placed on interdiction. See Clayton Powell v IDT and the Montego Bay Marine Park Trust [2014] JMSC Civ. 196. Counsel contended that any argument that the reinstatement was a sham could only be raised in the context of the second dismissals, which......
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