Jamaica Flour Mills Ltd v Industrial Disputes Tribunal

• Jurisdiction: Jamaica
• Judge: FORTE, P.: , HARRISON, J.A. , WALKER, J.A. , FORTE, P:
• Judgment Date: 11 June 2003
• Neutral Citation: JM 2003 CA 24
• Judgment citation (vLex): [2003] 6 JJC 1101
• Court: Court of Appeal (Jamaica)
• Date: 11 June 2003

IN THE COURT OF APPEAL

COR:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE WALKER, J.A

BETWEEN

JAMAICA FLOUR MILLS LIMITED

APPELLANT

AND

THE INDUSTRIAL DISPUTES TRIBUNAL

1 ^ST RESPONDENT

AND

THE NATIONAL WORKERS UNION

2 ^ND RESPONDENT

Donald Scharschmidt, Q.C. and Ransford Braham Instructed by Angela Robertson of Livingston, Alexander & Levy for Appellant

Nicole Foster-Pusey and Kevin Page instructed by the Director of State Proceedings for the respondent

Lord Anthony Gifford, Q.C. and Stacey Kong-Quee for the National Workers Union

INDUSTRIAL DISPUTES - Termination of employment - Redundancy - Meaning of "unjustifiable" - Whether the aggrieved parties waived any right for reinstatement when they encashed redundancy payment cheques - Labour Relations and Industrial Disputes Act

ORDER

FORTE, P:

Appeal dismissed. Judgment of the Full Court of the Supreme Court affirmed.

Costs to the Respondents to be taxed if not agreed.

FORTE, P.:

1 As the history and facts of the case and the findings of the Industrial Dispute Tribunal (the "Tribunal") have been adequately set out in the judgment of Walker, J.A., it is not necessary to reiterate them here. It is sufficient to say that I have had the privilege of reading his judgment in draft, and agree with the conclusion therein. I wish however because of the nature of the case to add a few words of my own.

2 Ms. Pusey who appeared for the Respondent (the "tribunal") identified correctly the three issues which arose for resolution in this appeal. These are:

• (1) What effect if any the Industrial Tribunal should give to the provisions of the Labour Relations Code when dealing with disputes which come before it for resolution.

• (2) What is the meaning and scope of the word "unjustifiable" as used in the LRIDA and can a dismissal on the grounds of redundancy be held to be unjustified even if the employer's decision in that respect cannot be successfully challenged.

• (3) Whether Michael Campbell and Ferron Gordon waived any right they may have had for re-instatement when they took and encashed the cheques which represented their redundancy payments.

• 1. The Code

  Before speaking to the relevant section of the Code and the effect it should have on the considerations of the Tribunal, it is appropriate to remember and take note of its expressed purpose as stated in Section 2 which reads:

  "The Code recognizes the dynamic nature of industrial relations and interprets it in its widest sense. It is not confined to procedural matters but includes in its scope human relations and the greater responsibilities of all the parties to the society in general.

  Recognition is given to the fact that management in the exercise of its function needs to use its resources (material and human) efficiently. Recognition is also given to the fact that work is a social right and obligation, it is not a commodity; it is to be respected and dignity must be accorded to those who perform it, ensuring continuity of employment, security of earnings and job satisfaction.

  The inevitable conflicts that arise in the realization of these goals must be resolved and it is the responsibility of all concerned, management to individual employees, trade unions and employer's associations to co-operate in its solution. The code is designed to encourage and assist that cooperation."

  In making reference to section 5 of the Code (to which no additional comments need be made) Rattray P, in the case of Village Resorts Ltd v. The Industrial Disputes Tribunal and Uton Green SCCA 66/97 delivered on the 30th June 1998 (unreported) states at page 10:

  "The Code indicates as one of 'management's major objectives' good management practices and industrial relations policies which have the confidence of all. It mandates that 'the development of such practices and policies are a joint responsibility of employers and all workers and trade unions representing them, but the primary responsibility for their initiation rests with employers.' Essentially, therefore the Code is a road map to both employers and workers towards the destination of a co-operative working environment for the maximization of production and mutually beneficial human relationships."

  The Code through its sections dealing with its purpose and responsibilities of employers, workers, and the Unions establishes the environment in which it envisages that the relationships and communications between these parties should operate for the peaceful solutions of conflicts, which are bound to develop.

  Having set that stage the Code thereafter addresses "Security of Workers". It is out of that provision that the issue as to its effect has arisen. Section 11 reads as far as is relevant as follows:

  "Recognition is given to the need for workers to be secure in their employment and management should in so far as is consistent with operational efficiency —

  • (i) provide continuity of employment, implementing where practicable, pension and medical schemes;

  • (ii) in consultation with workers or their representatives take all reasonable steps to avoid redundancies;

  • (iii) in consultation with workers or their representatives evolve a contingency plan with respect to redundancies so as to ensure in the event of redundancy that workers do not face undue hardship. In this regard management should Endeavour to inform the worker, trade unions and the Minister responsible for labour as soon as the need may be evident for such redundancies;

  • (iv) actively assist workers in securing alternative employment and facilitate them as far as is practicable in this pursuit."

  It was undisputed at the hearing before the Tribunal that the three workers were dismissed on the grounds of redundancy, without any previous communication or any notice that they were to be made redundant. It was on that basis that the Tribunal, taking into consideration, the provision of section 11(iii) of the Code arrived at the following findings:

  • "(i) The workers were effectively dismissed by the Company on the 13 ^th August 1999 the stated reason was Redundancy. There was no question of fault or misconduct on the part of the workers.

  • (ii) The workers were shocked, dissatisfied and disgruntled. Their subsequent conduct and the endeavours of their Union contradict any interpretation that they were waiving any rights of redress available to them. Indeed they mandated their Union to pursue their perceived rights.

  • (iii) It was unfair, unreasonable and unconscionable for the Company to effect the dismissals in the way that it did. It showed very little if any concern for the dignity and human feelings of the workers. This is indeed aggravated when one considers their years of service involved. The officers who appeared before us lead us to believe that this was not so intended but the effect should have been foreseeable and avoided.

  • (iv) Having considered the weight and implications of all the matters before us, WE FIND by majority that:

    • (a) the three workers, Suckle, Campbell and Gordon were unjustifiably dismissed by the Company on the 13 ^th August 1999 and

    • (b) all three workers wish to be reinstated."

  These findings led the appellant to argue inter alia, the following ground of appeal which brought into focus the effect of the Code.

  "The Full Court erred in law when it concluded that the Tribunal did not give excessive weight to the Labour Relations Code and the Full Court also erred in law when it held that the Tribunal did not elevate the Labour Relations Code to the status of law and/or legislation."

  This ground, as it was developed in argument, has its foundation on the following passage from the majority decision of the Tribunal:

  "Quite often, as in this case, non compliance with the Code is explained on the grounds that it is not enacted Law but merely a set of guidelines and not binding.

  This approach is morally inappropriate and procedurally unwise. The Code is as near to Law as you can get. The Act mandates it. It consists of 'practical guidance' by the Minister after consultation with Employers and Employees. It was (as legally required) approved by both the Senate and House of Representatives and can only be amended in the same manner as originally established. It is a statement of National Policy."

  This statement of the Tribunal in effect echoed the sentiments expressed by Rattray P, in the Village Resorts Ltd case (supra) where having stated the mandated purpose of the Code and declaring it to be "a road map to both employers and workers etc (supra)" went on to acknowledge that the Act, the Code and the Regulations provide the comprehensive and discrete regime for the settlement of industrial disputes in Jamaica.

  Indeed section 3(4) of the Labour Relations and Industrial Disputes Act (the "LRIDA") speaks to the importance of the Code. It states:

  "A failure on the part of any person to observe any provision of a labour relations code which is for the time being in operation shall not of itself render him liable to any proceedings; but in any proceedings before the Tribunal or a Board any provision of such code which appears to the Tribunal or a Board to be relevant to any question arising in the proceedings shall be taken into account by the Tribunal or Board In determining that question."

  The words of this section are clear. They mandate the Tribunal to take into account in its determination, any provision of the Code where it appears relevant to the question before it.

  There is nothing in my view in the words used by the Tribunal (supra) from which it can be inferred that it gave excessive weight to the Code, or elevated it to the status of law or legislation.

  The appellant contends that the Tribunal arrived at its decision purely on the basis of the non-adherence by...