Dr O'Neil Lynch v Minister of Labour and Social Security
| Jurisdiction | Jamaica |
| Judge | McDonald-Bishop JA,Simmons JA,Dunbar Green JA |
| Judgment Date | 08 October 2021 |
| Neutral Citation | JM 2021 CA 105 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2019CV00072 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Civ 43
IN THE COURT OF APPEAL
The Hon Mrs Justice McDonald - Bishop JA
The Hon Miss Justice Simmons JA
The Hon Mrs Justice Dunbar-Green (AG)
SUPREME COURT CIVIL APPEAL NO COA2019CV00072
Nigel Jones and Matthew Gabbadon instructed by Nigel Jones & Company for the appellant
Miss Althea Jarrett instructed by the Director of State Proceedings for the respondent
I have had the privilege of reading the comprehensive reasons for judgment of Simmons JA. I agree with her reasoning, which accords with my own reasons for concurring in the decision of the court, and there is nothing I could usefully add.
This is an appeal by Dr O'Neil Lynch (‘the appellant’) against the decision of Wolfe — Reece J made on 31 May 2019, on an application brought by him for judicial review of the decision of the Minister of Labour and Social Security (the respondent) not to refer the dispute which arose from the termination of his contract of employment by the University of the West Indies (‘the UWI’), to the Industrial Disputes Tribunal (‘the IDT’). The learned judge made 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 is refused.
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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 is refused.”
On 12 July 2019, the appellant, the applicant in the court below, filed a notice and grounds of appeal seeking the following orders:
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“(a) The appeal is allowed and the Order of the learned judge contained in the judgement dated the 31 st day of May 2019 is set aside;
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(b) Costs of this appeal to the Appellant to be taxed if not agreed; and
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(c) Such further and/or other relief.”
On 23 September 2020, after considering the submissions in this matter, we made the following orders:
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“1. The appeal is dismissed.
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2. The order of Wolfe-Reece, J made on 31 st May 2019 is affirmed.
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3. Costs of the appeal to the respondent to be agreed or taxed.”
It was indicated to the parties that the reasons for our decision would be provided, and this judgment is a fulfilment of that promise.
The facts in this matter are not in dispute. The appellant was employed by the UWI as a lecturer in its Tropical Medicine Research Institute, under a fixed term contract which commenced on 1 July 2012 and was slated to expire on 31 August 2015 (‘the contract’).
By way of a letter dated 14 July 2014, the UWI terminated the contract with immediate effect as of 15 July 2014. The reason given for the termination of the contract was what was termed as the “on-going challenges” with his performance. It was further stated that the said termination was being done in accordance with clause 1.2 of the contract, which states:
“The appointment is nevertheless terminable by either party giving the other six (6) months' notice in writing, given to terminate not earlier than December 31, for termination in Semester I and May 31, for termination in Semester 2.”
The appellant was also informed that he would be paid in lieu of notice and would receive all “entitlements arising from [his] contract”.
The appellant took issue with the manner in which his service was terminated, and through his attorneys-at-law, Nigel Jones and Company (‘NJ & Co’), responded by letter dated 26 August 2014. This was followed by several pieces of correspondence between NJ & Co and the UWI concerning what the appellant believed was his unfair dismissal and the UWI's breach of natural justice. For convenience, the sequence of the events and the contents of some of those letters have been summarised below:
26 August 2014 NJ & Co wrote to the UWI indicating that the appellant's position was that he had been unfairly dismissed. A request was also made for the appellant's reinstatement to his former post as Lecturer. Alternatively, a request was made for the matter to be referred to the visitor of the UWI within 14 days of receipt of the said letter. It was also alleged that there had been a breach of natural justice as the appellant had not been afforded an opportunity to state his case before a fair and impartial tribunal.
3 November 2014 NJ & Co wrote to the Permanent Secretary of the Ministry of Labour and Social Security (‘the Ministry’), indicating that although reference had been made to the jurisdiction and authority of the visitor in its letter of 26 August 2014 to the UWI, it was being proposed as an “alternative approach”, that the matter be referred to the Ministry's Conciliation Unit and in the event that it was not settled, for it to be referred to the IDT.
6 January 2015 The appellant and the UWI took part in the first conciliation meeting at the Ministry. It was agreed that the UWI's grievance procedure would be invoked, and in the event that there was no resolution of the matter, it would be referred back to the Ministry.
30 January 2015 NJ & Co wrote to the UWI indicating that it was agreed that the UWI's grievance procedure would be invoked as all efforts to resolve the matter had to be exhausted before it could be referred back to the Ministry.
19 February 2015 The UWI wrote to the appellant inviting him to a hearing on 27 February 2015.
27 February 2015 The appellant accompanied by NJ & Co attended the meeting.
4 May 2015 NJ & Co indicated to the UWI that the grievance procedure it had sought to invoke was “inapplicable” as the appellant's employment had been terminated. It was also indicated that in an effort to resolve the dispute, the appellant was willing to continue discussions on condition that he was legally represented at those meetings. It was also indicated that if they did not receive a response within five days, they would revert to seeking the intervention of the Ministry.
27 May 2015 N J & Co, having received no response from the UWI, wrote to the Ministry advising it of what had taken place since the last conciliation meeting and requested its intervention in order to arrive at a “speedy and amicable solution”.
14 August 2015 NJ & Co wrote to the Ministry enclosing copies of its four previous letters and claiming compensation on the appellant's behalf in the sum of $3,572,973.92 and his reinstatement. It was also noted that the UWI had advertised a post that was similar to that from which the appellant had been dismissed. In the circumstances, it was requested that the matter be treated as one of urgency.
28 September 2015 NJ & Co wrote to the Ministry requesting that the matter be referred to the IDT.
7 October 2015 The Ministry acknowledged receipt of the letter dated 28 September 2015 and informed the appellant that the UWI was willing to compensate the appellant for the last seven months of the contract being 1 February 2015 —31 August 2015 but would not reinstate him.
9 December 2015 NJ & Co responded to the letter of 7 October 2015 advising the Ministry that the UWI's proposed settlement would not be accepted. It was again requested that the matter be referred to the IDT.
19 May 2016 The UWI by letter, again indicated that it was not prepared to “re-engage/re-employ” the appellant and provided a breakdown of the calculation of the proposed settlement sum.
25 May 2016 The second conciliatory meeting was attended by the appellant and the UWI. The parties were unable to reach a settlement.
14 June 2016 NJ & Co wrote to the Ministry asking for its written position/opinion on the situation to enable the appellant to make an informed decision as to the way forward.
21 June 2016 The Ministry responded, indicating that the UWI was willing to compensate the appellant for his service up to 31 August 2015. NJ & Co was also advised that the issue of the appellant's reinstatement was “outside the remit and scope of [the] Ministry” and “well beyond the jurisdiction of any legitimate Tribunal”. The Ministry also stated that it had “fulfilled its obligation in successfully bringing closure to [the] dispute and in the circumstances [was] not obliged to proceed any further”.
As a result of the respondent's refusal to refer the matter to the IDT, the appellant filed an ex-parte notice of application seeking leave to apply for judicial review. Leave was granted on 1 December 2016, and on 9 December 2016, the appellant filed a fixed date claim form for judicial review against the respondent and the UWI. On 18 May 2017, the appellant filed an amended fixed date claim form, in which he sought the following reliefs against the respondent solely:
“1. An order of Certiorari quashing the decision of the Respondent made on June 21, 2016 that the Ministry had fulfilled its obligation in successfully bringing closure to this industrial dispute and in the circumstances is not obliged to proceed any further;
2. An order of mandamus compelling the Respondent to refer the Applicant's case to the Industrial Disputes Tribunal for a determination;
3. Costs; and
4. Such further and other relief as this Honourable Court may deem fit.”
The application was opposed by the respondent on the basis that the matter was within the sole jurisdiction of the visitor and as such, could not properly have been referred to the IDT.
In the court below, Wolfe-Reece J identified the issues to be as follows:
“(a) whether the court has jurisdiction to refer the dispute between the Applicant and the UWI to the IDT in light of the power of the visitor provided for in the Royal charter.
(b) If the court has jurisdiction, whether Dr. Lynch's application for judicial review of the Respondent's decision should be granted and the...
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