Donovan Brown v Minister of Labour and Social Security
| Jurisdiction | Jamaica |
| Judge | Pettigrew-Collins, J |
| Judgment Date | 16 February 2023 |
| Docket Number | CLAIM NO. SU2022CV01253 |
| Court | Supreme Court (Jamaica) |
In the Matter of an Application by Donovan Brown for leave to apply for Judicial Review pursuant to Rule 56.3 of the Civil Procedure Rules.
In the Matter of the Labour Relations and Industrial Disputes Act.
In the Matter of a decision of the Minister of Labour and Social Security dated March 3, 2022
In the Matter of a decision of the Visitor of the University of the West Indies dated September 22, 2021.
and
[2023] JMSC Civ. 20
CLAIM NO. SU2022CV01253
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Leave to apply for judicial review — Extension of time — University Visitor ruled that he had no jurisdiction — Error of law — Whether decision of Visitor subject to judicial review — Whether leave should be granted against the Minister.
Mr. Phillip Bernard instructed by Bernard and Co. for the Applicant.
Miss Kristen Fletcher instructed by the Director of State Proceedings for the First Respondent
Mr. M. Maurice Manning KC and Miss Allyandra Thompson instructed by Nunes, Scholefield, DeLeon and Co for the Second Respondent
The applicant was employed to the University of the West Indies as Acting Purchasing Manager. On or about February 24, 2017, he was dismissed from his job. He commenced his employment in the capacity as a clerk in 1987, and was promoted until he assumed the position from which he was dismissed. Questions arose regarding the applicant's association with a company which was a supplier of goods to the University. A formal investigation was conducted. It was alleged that there was a conflict of interest due to the applicant's affiliation with the company, and that there was misconduct on his part. The applicant did not deny his affiliation with the company, but stated that, he had disclosed his affiliation and had received approval from the University to carry on transactions with the company.
The applicant stated that prior to his dismissal, he had never had disciplinary proceedings brought against him. He alleged that his dismissal was unjust and in breach of the Labour Relations and Industrial Disputes Act and the Labour Relations Code. Although vehement that there was no misconduct on his part, he relied in particular on section 22(ii) (b) of the Labour Relations Code for he said that even if there was misconduct, based on this provision, he ought not to have been dismissed for a first breach of discipline except there was gross misconduct on his part.
The applicant brought an appeal against his dismissal to the Vice Chancellor of the university on March 3, 2017, but his appeal was dismissed. The fact of the dismissal was communicated to him by letter dated November 30, 2017. In the meanwhile, on November 6, 2017, the applicant had sought the intervention of the Ministry of Labour and Social Security. Several conciliatory meetings were facilitated between the applicant and the university, but there was no resolution of the matter. The applicant then, by way of letter dated June 4, 2020, requested that the matter be referred to the Industrial Disputes Tribunal (IDT). By way of letter dated July 6, 2020, the Ministry advised that the matter would not be so referred and it was recommended that the applicant invoke the jurisdiction of the Visitor of the university. On November 17, 2020, the applicant filed an appeal with the Chancellor. The Chancellor directed the applicant to lodge his case with the Visitor. The petition to the Visitor was filed on April 19, 2021. By way of a written decision dated September 22, 2021, the Visitor delivered his reasons for declining jurisdiction to entertain the applicant's petition.
It is noted that there is a discrepancy between the date given by the applicant in his affidavit and that which appears in the Visitor's written reasons regarding the filing of the applicant's petition with the Visitor. He stated that he filed his petition with the Visitor in August of 2020, but in the Visitor's decision that date is stated as April 19, 2021.
The applicant filed an ex Parte Notice of Application for Court Orders on April 11, 2022, seeking leave to apply for judicial review. He indicated that he wished to file a Fixed Date Claim Form to seek orders including the following:
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(a) An order of certiorari quashing the decision of the 1 st respondent made on March 3, 2022 that the proper recourse is not via the Industrial Disputes Tribunal
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(b) An order of mandamus compelling the 1 st respondent to refer the applicant's dispute to the Industrial Disputes Tribunal for determination.
On July 1, 2022, the applicant filed an amended ex parte Notice of Application. In addition to the orders sought in his earlier application, he also in the alternative, sought leave to apply for judicial review against the second respondent, as well as, an abridgement of time for making the application against the second respondent. Among the orders sought are:
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(a) An order of certiorari quashing the decision of the Visitor of the 2 nd respondent made on September 22, 2021 that “the matters raised by the petitioner do not fall within the ambit of the Visitor's jurisdiction.”
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(b) An order of mandamus compelling the Visitor of the 2 nd respondent to hear and determine the dispute between the applicant and the second respondent.
In each instance, the applicant set out the grounds on which he sought those orders. In relation to the second respondent, among the grounds put forth, is that the court may extend time for applying for leave for judicial review if good reason is shown. The Visitor made his decision on September 22, 2021, and the applicant filed his application for leave on July 1, 2022, outside of the period stipulated in the Civil Procedure Rules. It is taken that the applicant meant to request an extension of time to apply for leave and not an abridgement of time. It must be pointed out that the court sought clarification from counsel but his response did not offer much in the way of clarification.
The issues arising for determination in this application are:
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1. Whether an extension of time should be granted to the applicant to apply for judicial review against the second respondent.
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2. Did the visitor have jurisdiction to entertain the applicant's petition based on the nature of the applicant's complaints.
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3. Did the Visitor have jurisdiction to entertain the applicant's petition based on the Visitor's date of appointment, having regard to the date of the decision being challenged.
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4. Does the court have jurisdiction to grant leave to permit the applicant to pursue the remedies he intends to seek against the Visitor, in light of the Visitor's ruling that he had no jurisdiction to entertain the petition
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5. Was the Minister correct in ruling that he has no jurisdiction to refer the matter to the Industrial Disputes Tribunal.
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6. Whether the applicant should be granted leave to apply for judicial review against either respondent.
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7. Should costs be awarded in favour of the second respondent against the applicant.
Rule 56.3(1) of the Civil Procedure Rules provides that a person wishing to apply for judicial review must first obtain leave. Rule 56.6(1) directs that an application for leave to apply for judicial review must be made promptly and in any event, must be made within three (3) months from the date when the grounds for the application first arose. This court is empowered to extend time to apply for leave for judicial review if good reason is shown for doing so, based on rule 56.6(2).
Sub-rules (3), (4) and (5) of rule 56 provide as follows:
“(3) Where leave is sought to apply for an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date on which grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceedings.
(4) Paragraphs (1) to (3) are without prejudice to any time limits imposed by any enactment.
(5) When considering whether to refuse leave or to grant relief because of delay the judge must consider whether the granting of leave or relief would be likely to –
(a) cause substantial hardship to or substantially prejudice the rights of any person;
(b) be detrimental to good administration”
The court must consider if notwithstanding the delay, there are good reasons why the application should be allowed to proceed. In the case of Constable Pedro Burton v The Commissioner of Police [2014] JMSC Civ. 187, where the applicant was 31 months out of time, Dunbar-Green J. (Ag) expressed as follows at paragraph 24 of her judgment:
“The import of Rule 56 is that it is not so much a question of whether there are good reasons for the delay as good reasons to extend time (see R (Young) v Oxford City Council (EWCA) Civ 240) albeit the existence of unexplained delay could be decisive in an exercise of discretion whether to grant leave for extension of time (see R v Secretary of State exp. Furneau [1994] 2 All ER 652, 658.”
Dunbar-Green J. went on to say that in R v Secretary of State for Trade and Industry Exp. Greenpeace 200 Env. LR 221, 261–264, it was said that, good reason for extending time may include the fact that there is no prejudice to third party rights, no detriment to good administration and if there is a public interest requirement, then the application should proceed.
In setting out his grounds in relation to the second respondent, the applicant averred that:
“the reason for the delay in applying was due to relief being sought through the Industrial Disputes...
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