DR. O'Neil Lynch v Minister of Labour and Social Security
| Jurisdiction | Jamaica |
| Judge | Simone Wolfe-Reece, J. |
| Judgment Date | 31 May 2019 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2016 HCV 03869 |
| Date | 31 May 2019 |
[2019] JMSC Civ 111
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2016 HCV 03869
Mr. Nigel Jones & Ms. Liane Chung instructed by Nigel Jones & Company for the Applicant
Ms. Althea Jarrett instructed by The Director of State Proceedings for the Respondent
JUDICIAL REVIEW — ROYAL CHARTER ESTABLISHING UNIVERSITY OF THE WESTINDIES — JURISDICTION OF THE VISITOR — TERMINATION OF EMPLOYMENT THE LABOUR RELATIONS & INDUSTRIAL DISPUTES ACT SECTION 11A(1)(a)(i)-
On the 1 st of December 2016 the Applicant Dr. O'Neil Lynch by way of an Exparte Notice of Application for Court Orders obtained leave to apply for Judicial Review.
The Applicant filed an Amended Fixed Date Claim Form on May 18, 2017 against the Respondent seeking judicial review of the Respondent's decision and ultimately the following orders:
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a) An order of Certiorari quashing the decision of the Respondent made on June 21, 2016 that the Ministry fulfilled its obligation in successfully bringing closure to this industrial dispute and in the circumstances is not obliged to proceed any further;
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b) An order of mandamus compelling the Respondent to refer the Applicant's case to the Industrial Disputes Tribunal for a determination;
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c) Costs;
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d) Such further and other relief as this Honourable Court may deem fit.
The Applicant was employed as a lecturer by the University of the West Indies (UWI) by way of a fixed term contract from May 29, 2012 to August 31, 2015. The contract provided for termination by either party giving the other six months' notice in writing. By way of a letter dated July 14, 2014 the Applicant's employment was terminated with immediate effect from July 15, 2014 on the basis of what was described as ongoing challenges with his performance. In the termination letter, it was stated that the UWI would make payment in lieu of notice in addition to all entitlements arising from the contract.
The Applicant contends that he was not given any clear and definitive reason for his termination, and that as such, he was unfairly dismissed and unduly prejudiced. He further contends that there has been a breach of natural justice in his termination as he was not given an opportunity to be heard by a fair and impartial tribunal.
The Applicant's Attorney-at-Law by letter dated August 26, 2014, informed the University of the Applicant's position. In the said letter, counsel on behalf of the Applicant acknowledged the visitorial authority of Queen Elizabeth II, and her exclusive jurisdiction over decisions regarding internal disputes of the UWI. The Applicant's Attorney demanded that he be reinstated, and alternatively, that the matter be referred to the visitor within 14 days.
However, by letter dated November 3, 2014, the Applicant's Attorney wrote to the Permanent Secretary of the Ministry of Labour and Social Security outlining what had transpired and suggested an alternative approach to referring the matter to the visitor, which was that the matter be referred to the Ministry's conciliation unit. It was proposed that in the event that the matter is not settled in that forum, it be referred to the Industrial Disputes Tribunal (IDT) pursuant to the Labour Relations and Industrial Disputes Act 1975 (LRIDA).
The Ministry seemed to have taken up the Applicant's suggestion of an alternative approach and between November 2014 and June 2016 the Ministry sought to have the parties' resolve this dispute by using its voluntary conciliation process.
The Applicant requested that he be compensated in the sum of $3,572,973.92 for the remainder of the contract, as well as reinstatement to his post. The Respondent however, was of the view that the Applicant was only entitled to $1,978,027.06 and the Respondent indicated that they were not prepared to reinstate the Applicant.
Conciliatory meetings were held but to no avail, Counsel on behalf of the Applicant asked the Ministry to refer the matter to the IDT. However, in the last letter sent by the Ministry to the Applicant dated June 21, 2016, under the hand of Michael Kennedy, Permanent Secretary, the Applicant was advised that the Ministry had fulfilled its obligation in successfully bringing a closure to the dispute and in the circumstances is not obliged to proceed any further.
It is this decision and conclusion by the Minister that the Applicant is asking the Court to review and make the orders as set out in his Amended Fixed Date Claim Form.
In written submissions on behalf of the Applicant counsel Mr. Nigel Jones submitted that the Court will generally not interfere with the exercise of power or discretion by a public body unless that body has acted unlawfully in the sense that it has breached one of the relevant principles of public law developed by the Courts to ensure that public bodies do not exceed or abuse its powers. To support this submission, he cited Albert Fiadjoe in Commonwealth Caribbean Public Law (3 rd Edition) who stated:
“Judicial review allows a person to challenge the acts or omissions of a public authority for legality. Such challenge may be mounted on the basis of the grounds for review which the Courts have developed over time, and which Lord Diplock has compresses into' illegality, irrationality and procedural impropriety”
It was Counsel's submission that the Respondent has breached all three grounds of judicial review as established by Lord Diplock - illegality, irrationality and procedural impropriety.
He further contends that the Minister has the authority to comply with the Applicants request and refer the matter to IDT. He cited the Labour Relations and Industrial Dispute Act (LRIDA) which provides that:
“11(1) Subject to the provisions of subsection (2) and sections 9 and 10 the Minister may, at the request in writing of all of the parties to any industrial dispute, refer such dispute to the Tribunal for settlement.
11A-(1) Notwithstanding the provisions of sections 9, 10 and 11, where the Minister is satisfied that an industrial dispute exists in any undertaking, he may on his own initiative-
(a) refer the dispute to the Tribunal for settlement
(i) if he is satisfied that attempts were made, without success, to settle the dispute by such other means as were available to the parties; or
(ii) if, in his opinion, all the circumstances surrounding the dispute constitute such an urgent or exceptional situation that it would be expedient so to do;”
Mr. Jones referred the court to the case of R v. Commissioner of Income Tax, Ex parte Donald Panton [1990] 27 JLR 68 in which Panton J stated:
“the courts need to keep a conscious watch on the actions of statutory bodies including the Commissioner to ensure that those powers entrusted to them are exercised in a manner which are kept within the limits that parliament intended. Where those powers are exercised unreasonably or there is a failure to comply with the procedural requirements of the Act then such actions are open to review and the appropriate relief by way of the prerogative orders is then brought into operation to keep such actions within the proper bounds.”
Relying on the above sections of the LRIDA, and the Commissioner of Income Tax case, counsel submitted that the Respondent acted unreasonably in failing to refer the matter to the IDT, while failing to comply with the procedural requirement of the LRIDA. It was further submitted that the Respondent failed to consider the Applicant being compensated for the unfair dismissal, the fact that he desired to be re-engaged by UWI, the history of the matter, and the fact that they (the Applicant and his attorney) have asked the matter to be referred to the IDT on numerous occasions, and that the Applicant was not willing to accept the proposed settlement put forward by UWI.
On the 21 st of June 2016 the Respondent, by way of a letter, indicated that the Ministry has fulfilled its obligation in successfully bringing closure to the industrial dispute between the Applicant and the UWI, and in the circumstances is not obliged to proceed any further. However, it was submitted on behalf of the Applicant that the Respondent has failed to explain how it has fulfilled its obligation in successfully bringing closure to the matter.
It was further submitted that the position of Mr. Michael Kennedy as postulated in paragraph 19 of his Affidavit in Answer filed on the 30 th of June 2017, that while the Ministry sought to resolve the dispute between the Applicant and the UWI by way of a conciliation process, he believes that the IDT does not have jurisdiction to hear and determine the Applicant's dispute having regard to the jurisdiction of the visitor. The Applicant's position is that the matter is before the Respondent, and therefore, based on Section 11A (1) and (2) the Respondent has the authority to refer the matter to the IDT which is a part of the procedure once the matter cannot be settled at that level.
It was the submission of counsel on behalf of the Applicant that the Respondent's decision was irrational as it was neither logical nor reasonable. He averred that the rational and logical approach that a reasonable Minister would take is to refer the matter to the IDT. He also stated that the Respondent did not fulfil its obligation as it acted irrationally and unjust by refusing to refer the matter to the IDT and only considered UWI's position in the matter referred to the IDT for determination.
The Respondent also filed written submissions and authorities on the 9 th of July 2018. In the submissions they opposed the orders of certiorari and mandamus sought by the Applicant. They contend that there was no dispute within the meaning of the...
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