Firearm License Authority v Ministry of Labour and Security
| Jurisdiction | Jamaica |
| Judge | A. Thomas, J. |
| Judgment Date | 19 September 2019 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2019 HCV 00857 |
| Date | 19 September 2019 |
[2019] JMSC Civ 187
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2019 HCV 00857
In The Matter of a dispute between the Firearm Licensing Authority and Mr. Milton Reid over the termination of employment
And
In The Matter of The Labour Relations & Industrial Disputes Act 1975.
And
And
Mikhail Jackson, Kathryn Williams instructed by Livingston, Alexander and Levy for the Applicant.
Carla Thomas for the Director of State Proceedings.
Tessa Simpson and Nikour Junor instructed by Knight, Junor & Samuels representing Mr. Milton Reid as an interested party.
Ruthlyn Matthews Legal Officer for IDT.
Application for Leave to apply for Judicial Review — Whether there was delay — Applicant saying Minister acted ultra vires in the referring the matter to the IDT — Whether the Applicant has an arguable case; Rule 56.
This is an application by the Firearm License Authority of Jamaica (FLA) for leave to apply for Judicial Review by way of:
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(a) An order of certiorari to quash the 1st Respondent's referral, dated the 6 th of December 2018, of a dispute between the Applicant and its former employee Mr. Milton Reid, over the termination of his employment to the 2 nd Respondent, as being ultra vires and/or unreasonable and as being a breach of S.11A(1)(a)(i) of the Labour Relations and Industrial Disputes Act (hereinafter referred to as “LRIDA”)
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(b) That the grant of leave shall operate as a stay of the 1st Respondent's referral of the dispute and of any proceedings before the 2 nd Respondent regarding the dispute between the Applicant and its former employee, Mr. Milton Reid.
The grounds on which the Applicant is seeking the orders are stated as follows: -
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(i) There is an error of law on the face of the 1 st Respondent's referral as there is no industrial dispute existing between the Applicant and its former employee, in that Mr. Milton Reid voluntarily entered into a separation agreement with the Company dated the 22 nd of August, 2017.
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(ii) In the alternative, the 1 st Respondent's referral is unreasonable, as Mr. Milton Reid has already been paid all the salary and benefits for the unexpired portion of his fixed term contract of employment, as consideration for his voluntary separation from the Company, pursuant to the said separation agreement with the company, dated the 22 nd of August, 2017.
It is generally agreed that:
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(1) Mr. Reid by a fixed term contract was employed to the Applicant, for a period of three years with effect from the 14 th of December 2015. There is in existence a document described as a “Separation Agreement” which was signed by both parties on the 22 nd of August 2017. Mr. Reid did receive and accept payment equivalent to 16 months' salary under the “Separation Agreement”. A dispute arose over the validity of the Separation Agreement. By letter dated the 6 th of December 2018 the matter was referred by the Minister of Labour and Social Security (the Minister) to the Industrial Dispute Tribunal(IDT).
The Applicant further alleges that:
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(i) The payment Mr. Reid received was 16 months' salary plus gratuity in full and final settlement of all claims he may have against the Applicant, equivalent to the unexpired portion of the contract. It was subsequent to the issuing of the pay advice on the 23 rd of August, 2017 that Mr. Reid contacted the financial administration director of the Applicant to enquire of further payments to be made pursuant to the separation agreement.
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(ii) No dispute was raised as to any aspect of the agreement but instead, Mr. Reid sought to enforce certain entitlements which he believed he had under the agreement.
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(iii) It was not until three (3) weeks later on the 13 th of September, 2017 that Mr. Reid subsequently sought to raise as a dispute before the Ministry of Labour that he was unjustifiably dismissed. Mr. Reid has not returned any of the sums which were paid to him pursuant to the separation agreement.
The Applicant contends that:
Mr. Reid voluntarily separated from the company and there is no industrial dispute as he was not terminated by the Applicant. Though Mr. Reid contends that the separation agreement was entered into under duress, he has failed to challenge the validity of the said agreement by initiating court proceedings. Mr. Reid has simply stated that this is the basis for his unjustifiable dismissal. In the alternative, in circumstances where an employee has been paid the full value of a fixed term contract, for the 1 st Respondent to refer such a matter to the IDT is wholly unreasonable
The evidence of the Respondents to this application is contained in the affidavit evidence of Mr. Michael Kennedy. Mr. Kennedy states that the matter was referred to the Ministry on behalf of Mr. Reid by a letter dated the 20 th of September, 2017 requesting the Ministry's intervention. The matter concerned the termination of Mr. Reid's fixed term contract with the Applicant. Based on the information on behalf of Mr. Reid, his employment was brought to an end by a separation agreement signed on the 22 nd August, 2017 between Mr. Reid and the chief executive officer for the Applicant. In an effort to amicably resolve the matter, the Ministry held extensive conciliatory talks with the parties between September 2017 and January 2018. The position of the Applicant, through its legal representative, during these conciliatory meetings was that Mr. Reid had voluntarily entered into the separation agreement and was paid in full all the sums to which he was entitled under his contract of employment. The position of Mr. Reid as advanced by his legal representative was that he signed the agreement by coercion and that prior to signing he had requested to speak to his attorney-at-law. After five attempts at conciliation, the parties still maintained their respective positions.
Mr. Kennedy further indicates that he formed the view that there was a dispute existing between the parties as to the termination of Mr. Reid's employment and that this dispute could not be resolved at the conciliation level. Consequently, he recommended to the 1 st Respondent that the matter should be referred to the 2 nd Respondent for the determination of the dispute. The 1 st Respondent agreed with the recommendation for the matter to be referred to the 2 nd Respondent and accordingly he wrote a letter to the parties advising them of the referral.
Mr. Milton Reid states that;
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(1) Prior to the expiration of his fix term contract, Mr. Dalling, the Chief Executive Officer (CEO)for the Applicant, handed him a letter which indicated that his services were immediately terminated on the 22 nd of August, 2017. He pointed out to Mr. Dalling, that after ten (10) years his service was being terminated without gratuity. Mr. Dalling gave him an ultimatum by way of another option, which was a letter with a separation agreement. He told Mr. Dalling that he would have to seek legal advice before signing the document. Mr. Dalling took the separation agreement from him and told him that he is sticking to option one where he will get no more than what it states, 3 months' salary in lieu of notice.
Mr. Reid denies that he voluntarily entered into the separation agreement with the Applicant. He states that he felt forced and intimidated by Mr. Dalling, a person in authority. He admitted that he was paid salary and gratuity.
Mr. Reid further asserts that:
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(1) The separation agreement was signed under undue influence. It purported to carry certain entitlements and he had called Mr. Haleem Anderson for clarity and facts as to when the entitlement moneys were to be paid. He raised the dispute first with the CEO on the same day that he had given him the letter.
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(2) He states that it is his belief that an industrial dispute arose as he did not voluntarily separate from the FLA. A conflict arose when he was terminated without cause or a hearing. He was given an ultimatum by Mr. Dalling at the time when there were reports of rampant corruption surrounding the FLA, creating contumelious circumstances which acted on his ability to obtain future employment. It is his position that he was constructively dismissed without a fair hearing and that the matter was properly referred to the IDT.
The Simple issues for consideration in this Application are:
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(i) Whether the Application was filed promptly.
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(ii) Whether the Applicant has an arguable case.
Rule 56.6. of the Supreme Court of Jamaica Civil Procedure Rules (herein after refer to as “the rules”) dictates the time within which an application for leave for Judicial Review should be made. Rule 56.6. (1) states:
“An application for leave to apply for judicial review must be made promptly and in any event within three months from the date when grounds for the application first arose”
The following is a summary of the submissions made by Mr. Mikhail Jackson on behalf of the Applicant:
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(i) The application was made on the 5 th of March, 2019 within the particular timeline of Part 56.1 of the rules. There was a contention that there was some delay. As seen from the background and Mr. Dalling's evidence, the Applicant invited the Minster to withdraw the referral. There was no response to that letter and in light of the timeline the application was filed within the three (3) months.
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(ii) Notwithstanding the date on which the application was filed, the court must consider whether there was any prejudice to Mr. Reid with proceeding with the application at this...
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