Jamaica Public Service Company Ltd v Union of Clerical, Administrative and Supervisory Employees & Anormp; Ors

• Jurisdiction: Jamaica
• Judge: Panton P,Dukharan JA,Phillips JA
• Judgment Date: 29 January 2016
• Neutral Citation: JM 2016 CA 8
• Docket Number: SUPREME COURT CIVIL APPEALS NOS 57 & 59/2013
• Court: Court of Appeal (Jamaica)
• Date: 29 January 2016

[2016] JMCA Civ 5

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Dukharan JA

The Hon Miss Justice Phillips JA

SUPREME COURT CIVIL APPEALS NOS 57 & 59/2013

Between

Jamaica Public Service Company Limited

Appellant

and

Union Of Clerical, Administrative And Supervisory Employees

National Workers Union

Bustamante Industrial Trade Union

1 ^st Respondent

and

The Industrial Disputes Tribunal

2 ^nd Respondent

Consolidated With

Between

The Industrial Disputes Tribunal

Appellant

and

Union of Clerical, Administrative And Supervisory Employees

National Workers Union

Bustamante Industrial Trade Union

1 ^st Respondent

and

Jamaica Public Service Company Limited

2 ^nd Respondent

Patrick Foster QC and Mrs Symone Mayhew instructed by Nunes, Scholefield, DeLeon & Co for the Jamaica Public Service Company Limited

Lord Anthony Gifford QC and Mrs Emily Shields instructed by Gifford, Thompson & Bright for the Union of Clerical, Administrative and Supervisory Employees, National Workers Union and Bustamante Industrial Trade Union

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

Panton P

1 In this consolidated appeal, the Jamaica Public Service Co Ltd (JPSCo) and the Industrial Disputes Tribunal (IDT) are challenging the judgment of Kirk Anderson J delivered in the Supreme Court on 31 May 2013. The learned judge, having reviewed the award of the IDT handed down on 18 June 2010 ordered that paragraph (b) be removed into the Supreme Court and quashed. The award was by a majority (Hon Anthony Irons, OJ, CD, JP, Chairman, and Mr Trevor Graham, member); Mr Edward Dixon, CD, the other member of the panel, dissented.

2 The JPSCo and the Union of Clerical Administrative and Supervisory Employees, National Workers Union and Bustamante Industrial Trade Union (hereinafter referred to as the unions) have been in a dispute for over a decade in respect of the implementation of a new salary structure and the payment of new rates. On 11 February 2003, the matter was referred to the IDT which made an award on 29 August 2003. The JPSCo appealed the award, but it was upheld by this court. The parties then set about implementation of the award but that was a source of further dispute. The parties in an attempt to settle the dispute, held further discussions which culminated in the signing of a document entitled ‘Heads of Agreement’ on 6 May 2008. There was a further memorandum signed on 29 May 2008. As it turned out the parties were not with one accord on the ‘Heads of Agreement’. So, the Minister of Labour and Social Security, Honourable Pearnel Charles (the Minister) referred the matter to the IDT.

3 The terms of reference were set out in a letter dated 13 March 2009 and amended on 3 June 2009. The IDT was required by these terms to determine and settle the dispute in respect of the unions' claim for the adjustment of overtime and redundancy payments arising from the job evaluation exercise that had been conducted, and JPSCo's claim that its payment of $2.3 billion to the workers represented a negotiated settlement encompassing the unions' claims consequent on the agreement arrived at on 6 May 2008.

4 The IDT heard witnesses and submissions and the majority identified the issues as follows:

‘1. What is the scope and purpose of the Heads of Agreement that was signed by the parties on May 6, 2008? Was it a compromise agreement? Was it signed in full and final settlement of the Union's claim?

2. To what did the parties intend to agree and did in fact agree under the Heads of Agreement?

3. If the Heads of Agreement did not impose an obligation on the Company to pay adjusted Overtime and Redundancy for the period 2001–2007, are the workers entitled to it by way of convention and practice? The Heads of Agreement was a different agreement reached with the Union and did not form a part of the Collective Labour Agreement.’

5 The important factual circumstances in this matter and the details of the hearing before the IDT are more fully narrated in the judgment of my learned sister, Phillips JA. There is no need for me to repeat them here. It is sufficient for me to say that the unions expected a payout of $4.1 billion by the JPSCo, but the latter held fast to the position that it could not afford more than $2.3 billion. The IDT found that a negotiating process took place after the $4.1 billion figure was said to be unaffordable, and that the parties reached an understanding in the Heads of Agreement for the JPSCo to pay the sum of $2.3 billion. The aim, the IDT found, was to agree a sum which the JPSCo ‘could afford on the one hand and that the workers on the other hand would accept in full and final settlement in relation to the exercise’. In the view of the majority of the IDT, that was the end of the matter as the agreement was a compromise in full and final settlement of the liability of the JPSCo to the workers. Anomalies in relation to particular workers would be dealt with by the Anomalies Committee.

6 In view of these findings, the IDT, in its award [at paragraph (a)], did not accept the claim for the adjustment of overtime and redundancy payments; rather, [in paragraph (b)] it stated its acceptance of the JPSCo's position that there had been a negotiated settlement for the payment of $2.3 billion arising from the 6 May 2008 agreement. This settlement encompassed the unions' total claims.

7 The learned judge, in arriving at his decision to overturn the award at paragraph (b), reasoned thus:

‘i. …It is not for this court to rehear or reconsider the disputed evidence led by the respective parties at the I.D.T.'s hearings and then decide on which aspects of that evidence it accepts and which it does not… [para.12];

ii The central question now to be determined by this court, as regards the challenged award made by the I.D.T., is therefore, whether in various and sundry respects as put forward by counsel for the applicants in the grounds for judicial review as filed, the relevant tribunal, being the I.D.T., erred in law… [para.13];

iii … In the absence of reasons being provided therefore, this court, in essence, is required to take the place of the inferior Tribunal. This really should not be the role of a Court of “Judicial Review'. It is, however, the role which this court is now required, by virtue of the majority decision of the House of Lords in the Anisminic case, now required to pursue, in the case at hand.’ [para.18]

8 In deciding what interpretation was to be placed on the compromise agreement, he said that he considered that ‘nowhere in the relevant agreement is anything whatsoever, expressly stated, concerning adjustment of overtime and redundancy pay’ [para. 56]. Consequently, he concluded that not only did the IDT err in law in that regard but that in fact the error of law was apparent on the face of the record [para. 58]. He felt that there had not been a proper, objective interpretation of the relevant agreement. Indeed, he concluded that the interpretation by the IDT was ‘palpably incorrect’ [para. 60], and that the only proper interpretation when ‘the relevant contextual background’ is taken into account was that the agreement was only in settlement of the dispute in relation to basic pay only [para. 61].

9 The grounds of appeal are fully set out in the reasons for judgment that have been penned by my learned sister Phillips JA. I wish to deal with those that have been filed on behalf of the IDT, and one of those filed on behalf of the JPSCo. Those filed on behalf of the IDT read as follows:

• ‘1. The Learned Judge misconstrued the evidence led before the IDT and erred in finding that the Heads of Agreement did not represent a compromise which included overtime and/or redundancy payments.

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

The ground filed on behalf of the JPSCo which I intend to comment on reads thus:

‘The learned judge erred when he concluded that the agreement between the parties did not impliedly address or could not have been interpreted by the IDT as encompassing the Union's claim arising from the Agreement, that being adjusted overtime and redundancy pay for the period 2001 to 2007.’

10 Miss Lisa White, for the IDT, submitted that the findings of the IDT were not to be interfered with unless there was an error of law. In this regard, she relied heavily on the judgment of this court in Hotel Four Seasons Ltd v The National Worker's Union (1985) 22 JLR 201. She submitted that the evidence that was led before the IDT indicated clearly that the JPSCo could not afford to pay the amount that was arrived at by the consultants and a compromise sum of $2.3 billion was agreed on after discussions. According to her, the issue of overtime and or redundancy payment was ‘distilled and determined’ during the discussions as it was ‘the pith of the dispute’. The learned judge was, she said, in error to be directing the IDT to consider an issue that had already been considered.

11 Mr Patrick Foster QC, for the JPSCo, submitted that the sum arrived at for payment by the JPSCo ‘was a global sum designed to bring the matter to a conclusion’. He said that there was evidence before the IDT to the effect that the sum of $2.3 billion was ‘at the outer limit of [JPSCo's] affordability’. He referred to the poor financial state of the JPSCo, necessitating a request to obtain a tax waiver from the government so as to be able to deal with the statutory liabilities, and also to the possibility of JPSCo folding if there were further demands on it for payment. In the circumstances, he said that it would defy commonsense and commercial sense for there to be any view other than that the agreed sum was a net sum. It was therefore reasonable, he...