Industrial Disputes Tribunal v University of Technology Jamaica and Another

• Jurisdiction: Jamaica
• Judge: Panton P,Dukharan JA,Brooks JA
• Judgment Date: 12 October 2012
• Neutral Citation: JM 2012 CA 90
• Docket Number: SUPREME COURT CIVIL APPEAL NOS 71 & 72/2010
• Court: Court of Appeal (Jamaica)
• Date: 12 October 2012

[2012] JMCA Civ 46

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Dukharan JA

The Hon Mr Justice Brooks JA

SUPREME COURT CIVIL APPEAL NOS 71 & 72/2010

Between

The Industrial Disputes Tribunal

Appellant

and

University of Technology Jamaica

1st Respondent

and

The University And Allied Workers Union

2nd Respondent

Between:

The University and Allied Workers Union

Appellant

and

University of Technology Jamaica

1st Respondent

and

The Industrial Disputes Tribunal

2nd Respondent

Miss Lisa White instructed by the Director of State Proceedings for the Industrial Disputes Tribunal

Gavin Goffe and Mrs Alexis Robinson instructed by Myers Fletcher and Gordon for University of Technology Jamaica

Wendell Wilkins instructed by Robertson Smith Ledgister and Co for the University and Allied Workers Union

INDUSTRIAL LAW - Unfair dismissal - Whether dismissal of employee of U-Tech on alleged disciplinary breach of absence from work for five consecutive days was unjustified - Application for certiorari by respondent - Whether the claimant erred in its decision - Role of IDT in its hearing and resolution of disputes - Labour Relations (Industrial Disputes) Act, s. 12

Panton P

1 I have read, in draft, the judgment of Brooks JA. I agree with his reasoning in concluding that the decision of the Industrial Disputes Tribunal should be restored.

Dukharan JA

2 I too have read the draft judgment of Brooks JA and agree with his reasoning and conclusion. I find that there was evidence to support the Industrial Disputes Tribunal's findings. There is nothing further that I can add.

Brooks JA

3 In August 2006, the University of Technology Jamaica (Utech) accused one of its employees, Miss Carlene Spencer, of a disciplinary breach. It said that she had been absent from work for at least five consecutive days without authorisation. After a disciplinary hearing, from which she was also absent, Utech dismissed her.

4 The University and Allied Workers Union (the Union), representing Miss Spencer, disputed the dismissal. The dispute was referred to the Industrial Disputes Tribunal (IDT), which, after hearing the parties, ruled that Miss Spencer's absence was authorised and approved vacation leave. The IDT consequently ruled that her dismissal was unjustified and ordered Utech to reinstate her with full salary for the period from the date of her dismissal up to the date of her resumption of work.

5 Utech, being aggrieved by the IDT's decision, applied to the Supreme Court for an order of certiorari to quash that decision. Mangatal J heard the application and, at the conclusion of a characteristically comprehensive written judgment, ruled that the IDT had erred in its decision. She, therefore, set aside the decision. The Union and the IDT, have both appealed against Mangatal J's judgement. The main issue to be resolved by the appeals is whether the learned judge correctly assessed the role of the IDT in its hearing and resolution of the dispute.

The background facts

6 Although explanations have been given by the various actors for their actions or omissions, the following seem to be the relevant undisputed facts:

• (1) On a date prior to 28 May 2006, Miss Spencer, a laboratory technician, approached her departmental supervisor, Mr Bramwell, about her taking vacation leave from 5 June to 20 July 2006. She filled in the appropriate section of her leave form record but did not sign it. Mr Bramwell told her to get approval from her immediate supervisor, Mr Martin, before he could approve her application.

• (2) Miss Spencer, apparently on a separate occasion, also applied for and secured, approval for departmental leave for Tuesday 29 May, Wednesday, 30 May and Friday, 2 June 2006. Her work-week was Monday to Friday.

• (3) Apart from the days mentioned in (2) above, Miss Spencer was also absent from work on Thursday 1 June and on and after Monday 5 June 2006.

• (4) During her absence from work, neither Mr Martin nor Mr Bramwell had any contact with Miss Spencer or knew of her whereabouts. On 7 June 2006, Mr Bramwell signed the section of Miss Spencer's leave form that is reserved for the supervisor's signature, and wrote in the ‘Remarks’ section of the form, ‘She is currently off’. He then delivered the form to the Human Resource Management (HRM) Department. The leave clerk, in that department, signed in the section of the form, which is headed ‘Approved by HRM’, and wrote the date 7 June 2006. These signatures were in respect of, as written on the form, vacation leave for the period 5 June to 20 July 2006, which totalled 34 working days.

• (5) Miss Spencer continued to be absent until 3 August 2006 when she visited Utech in order to deliver medical certificates (issued by a local doctor) for sick leave. Those certificates covered the periods 24 – 28 July (Monday to Friday) and 31 July — 4 August (Monday to Friday) 2006.

• (6) Miss Spencer's passport shows that she left the island on 28 May and returned to the island on 2 August 2006.

• (7) She reported for work on Tuesday, 8 August 2006; Monday, August 7 having been a national holiday.

• (8) Utech suspended her on 9 August 2006, pending the outcome of an investigation into her absence from work.

• (9) The Union intervened on her behalf and referred the matter to the Ministry of Labour.

• (10) While the reference was pending at the Ministry of Labour, Utech's disciplinary tribunal met on 3 April 2007 and considered the charge against Miss Spencer. Neither Miss Spencer nor the Union attended that hearing, despite the fact that they were given prior notice to attend.

• (11) The disciplinary tribunal found that Miss Spencer had committed a breach of Utech's Disciplinary Code, in that she was absent from work for at least five consecutive days without authorisation. It recommended dismissal and she was dismissed as a result.

• (12) The Union contested the dismissal and the dispute was referred, for settlement, to the IDT.

The IDT's decision

7 The reference to the IDT was in the following terms:

‘To determine and settle the dispute between the University of Technology Jamaica on the one hand, and the University and Allied Workers Union on the other hand, over the dismissal of Ms. Carlene Spencer.’

8 The IDT, on 9 December 2008, after a number of hearings, ordered Miss Spencer's reinstatement. It handed down its award in writing. In that award, it summarised the case for each party, analysed the evidence and addressed the issues raised by the evidence. The IDT made findings of fact in respect of each issue and concluded its award in the following terms:

‘The Tribunal concludes the following:

• (1) Miss Carlene Spencer's vacation leave for the period 5 ^th June, 2006 to 20 ^th July, 2006 was authorized and approved (See Exhibit 2 [Miss Spencer's leave form]).

• (2) Miss Carlene Spencer's application for Departmental Leave on the 21 ^st July 2006 was not authorized or approved.

• (3) This Tribunal cannot sustain the dismissal of Miss Carlene Spencer for not attending the Disciplinary Hearing that was convened on the 3 ^rd April, 2007.

FINDINGS

The dismissal of Miss Carlene Spencer was unjustifiable.’ (Emphasis supplied)

Mangatal J's findings

9 Mangatal J concluded that there were clear errors of law in the IDT's decision. She found that there were ‘fundamental misconceptions as to the proper approach of the I.D.T. in relation to circumstances such as those involved in the instant case’(paragraph 89 of the judgment). As a result of those findings, the learned judge granted an order of certiorari quashing the IDT's award.

10 The decision to quash the award was based on a number of factors. The main ones given by Mangatal J were:

• (1) The IDT's decision to exclude from evidence the contents of Miss Spencer's passport, ‘amounts to a declining of jurisdiction, which is a jurisdictional error’ (paragraph 57 of the judgment).

• (2) The IDT misconceived its duty and asked itself the wrong question. ‘The I.D.T. should have been asking itself whether, in the circumstances as known or which ought to have been known to Utech, Utech had reasonable grounds for finding that Ms. Spencer had been guilty of unauthorized absence from work for a period of 34 days’ (paragraph 65 of the judgment).

• (3) The IDT's decision concerning Utech's proceeding with the disciplinary hearing in Miss Spencer's absence was ‘irrational and does not demonstrate that [it] weighed all relevant factors or accorded to the employer Utech any amount of discretion in deciding what to do in the circumstances’ (paragraph 80 of the judgment).

• (4) In making a finding concerning Miss Spencer's failure to attend the disciplinary hearing, the IDT misdirected itself as to the nature of the dispute that it was being asked to resolve (paragraph 84 of the judgment).

• (5) The IDT erred in hearing, considering and relying on evidence from Miss Spencer ‘in relation to the question of whether she had proceeded on unauthorised leave and that this was another error of law pointing to the quashing of the award’ (paragraph 87 of the judgment).

The appeal

11 The Director of State Proceedings, on behalf of the IDT, filed succinct grounds of appeal. These encompass the more expansively expressed grounds filed on behalf of the Union. The IDT's grounds are as follows:

• ‘1. The Learned Judge erred when she misdirected herself as to the function, powers and remit of the IDT as is outlined in the Labour Relations and Industrial Disputes Act .

• 2. The Learned Judge as Court of Judicial Review erred by acting beyond the scope of her powers, function and remit.

• 3. The Learned Judge erred by having sight of and considering evidence that was not before the IDT.

• 4. The Learned Judge erred by treating the matter as an appeal and not as one...