Jamaican Redevelopment Foundation Inc. v Industrial Disputes Tribunal

• Jurisdiction: Jamaica
• Judge: Simone Wolfe-Reece, J
• Judgment Date: 25 July 2023
• Docket Number: CLAIM NO. SU2023CV00440
• Court: Supreme Court (Jamaica)

Between

Jamaican Redevelopment Foundation Inc.

Applicant

and

Industrial Disputes Tribunal

Respondent

and

Margaret Curtis

Interested Party

[2023] JMSC Civ. 148

Simone Wolfe-Reece, J

CLAIM NO. SU2023CV00440

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

JUDICIAL REVIEW — Reasonable prospect of success — Illegality — Irrationality, Procedural Impropriety.

IN CHAMBERS

Mr. Matthew Royal & Mr. Jovan Bowes instructed by Myers Fletcher & Gordon for the Applicant

Mr. Louis Jean Hacker & Ms. Jenoure Simpson instructed by the Director of State Proceedings for the Respondent

Mr. Emile Leiba & Ms. Chantal Bennett instructed by DunnCox for the Interested Party

Simone Wolfe-Reece, J

INTRODUCTION

1 The Jamaican Redevelopment Foundation Incorporated (JRFI) is a company incorporated in the United States of America, filed a Notice of Application seeking the leave of the Court to file a Claim for Judicial Review of a decision of the Industrial Disputes Tribunal (IDT). The applicant is seeking permission to specifically challenge the IDT's award made in favour of Margaret Curtis, (the Interested Party).

2 The Notice of Application for leave to apply for Judicial review was filed February 14, 2023, seeks the following orders;

• (1) Permission is granted to the Applicant to apply for an order of certiorari to quash the award of the Industrial Disputes Tribunal (IDT) dated November 14 ^th 2022

• (2) The grant of permission shall operate as stay of the award of the IDT dated November 14, 2022

3 The Applicant outlined eight main grounds on which they hinge their application;

• (1) The Respondent violated the Applicants Constitutional right to due process and therefore the award is illegal null and void.

• (2) The award is illegal as the IDT failed to specify the date of dismissal and the date from which the award would take effect as required by ss12(4)(b) and 12(4B) (b) of the Labour Relations Industrial Disputes Act (LRIDA)

• (3) Ms. Curtis having declared that she was not seeking reinstatement s12(5)(c)(ii) of the LRIDA prohibited the IDT from reinstating her.

• (4) The Respondent committed procedural impropriety and breached the Applicants right to natural justice when it allowed Ms. Curtis to change her position and seek reinstatement after the Applicant had been prohibited from calling evidence as to why reinstatement would not be appropriate or making submissions on the point.

• (5) Ms. Curtis having been belatedly allowed to seek reinstatement s.12(5)(C)(i) of the LRIDA required that any monetary award be expressed in terms of retroactive wages and this was not done

• (6) For the IDT to have found that the reason for dismissal was because Ms. Curtis confronting management on behalf of the staff on more than one occasion over non-payment of a discretionary bonus which is a disciplinary reason, Ms. Curtis would have needed to have lodged a complaint against such disciplinary action within 12 months of the date on which the disciplinary action became effective (LRIDA s. 11B) and no such complaint was lodged by her representative during that period.

• (7) The award of US$203,280 is irrational, as no explanation was given as to how the sum awarded was arrived at, in circumstances where Ms Curtis would have earned significantly less than the sum had she remained employed from the date of dismissal until the date of the award.

• (8) The Applicant has no alternative form of redress

• (9) The Applicant is directly affected by the Respondent's decision.

4 All the parties have submitted full written submissions and authorities. I acknowledge from the outset that whilst I may not set out each parties' submissions in full. I have considered them and I will refer to them where necessary in my determination of the issues.

5 The Civil Procedure Rules (CPR) specifically Part 56 outlines the guidelines to be followed when making an application for leave to apply judicial review. There is no dispute before this Court that the Applicant has an interest in the decision made by the IDT, as they are the employer of the interested party Miss Curtis and was a party to the hearing before the IDT. The Applicant has set out the grounds in its application on which they submit that there is a basis for leave to be granted to include that they have no other form of redress.

6 It is accepted that in an application for judicial review it is not an opportunity to appeal the decision of a decision maker. The concept and scope of judicial review is confined to the Court exercising a supervisory power over bodies such as the IDT in relation to the manner in which the decision was arrived at. It is also established that the supervisory nature of the Court in such a matter does not call for the Court to delve into the details or evidential substance of the of the case before it. As was stated by Simmons J (as she then was) in Clayton Powell v. The Industrial Disputes Tribunal and Montego Bay Marine Park trust 1

“The jurisdiction of the Court in such matters has been also described as supervisory and as such the question is not whether the Court disagrees with the decision of the particular tribunal but whether there is illegality irrationality or procedural impropriety”

7 The LRIDA provides that the decisions of the IDT shall be final and conclusive except on issues of law. In making a determination as to whether to grant leave the Court is mindful that it must be satisfied by the Applicant that the IDT in the instant case made some error in law which falls within the ambit of illegality, irrationality or procedural impropriety. The Court must conclude that the Applicant has a realistic prospect of success, which is not subject to any discretionary bar, as was stated by the Privy Council in the case Sharma v. Brown Antoine and Others 2.

Does the Applicant Realistic Prospect of Success?

The Constitutional Claim

8 The JRFI must therefore must satisfy this Court that it has realistic prospect of success. They must not only demonstrate that their claim deserves the Court exercising its supervisory powers over the decision but that there is likelihood of success.

9 In seeking to do this the Claimant submitted that the IDT violated the JRFI constitutional right to due process and the decision made is therefore illegal null and void. Mr. Royal submitted that the Applicant has filed a constitutional claim on 31 ^st May 2021 against the Respondent seeking various declarations that the IDT

is not an independent and impartial authority and that it violates the JRFI's constitutional right to due process

10 Counsel contends that sections 7(2) and 8(2)(c) of the LRIDA and sections 1,2,3,4, and 7 of the second schedule to the LRIDA are in violation of the doctrine of separation of powers and do not offer sufficient protection for the independence and impartiality of the IDT as a quasi-judicial body. He made specific reference to the way members were appointed, the duration of appointment, the guarantee from external pressure and the perception of independence. It is the applicant's contention that the IDT as presently constituted including the panel that determined this dispute was not in keeping with the Constitution and therefore the JRFI constitutional right to due process was breached and the award was therefore illegal null and void.

11 Mr. Hacker has confirmed that there is a claim challenging the constitutionality of the legislative scheme which established the IDT. He however urged on this Court that the constitutional claim is a separate issue which has not yet been determined. He submitted that the Applicant has not provided any evidence before the Court to demonstrate how the IDT violated its constitutional right to due process, and therefore has failed to show that there is basis on which the Court should grant leave.

12 In my assessment of the affidavits of Mr. Carlton Simpson filed on February 14, 2023 and May 10 2023, he opines that the applicants constitutional rights to due process has been violated and he has exhibited the Fixed Date Claim Form of the constitutional challenge 3 however the specific evidence as to how the actions of

any member of the panel, or the constitution of the IDT directly affected them or the award made in this case, is non-existent

13 On the face of the IDT's award dated November 14, 2022 4 at paragraph 3 it is noted that the JRFI advised the Tribunal that it had filed an action in the Supreme Court challenging the constitutionality independence and impartiality of the Tribunal and sought a stay of the proceedings. There is no evidence of the details or basis of the complaint to the tribunal and if so who specifically the allegation of lack of independence and impartiality was levied against.

14 Simmons J, 5 quoted the adopted position of Sykes J (as he then was) in R v IDT ex parte J. Wray & Nephew Limited who stated;

“There must be in the words of Lord Bingham and Lord Walker, ‘arguable ground for judicial review having a realistic prospect of success’… The point then is that leave for application for judicial review is no longer a perfunctory exercise which turns back hopeless cases alone. Cases without a realistic prospect of success are also turned away. The judges regardless of the litigants are required to make an assessment of whether leave should be granted in light of the now stated approach. An applicant cannot cast about expressions such as ultra vires, null and void, erroneous in law, wrong in law unreasonable without adducing in the required affidavit evidence making these conclusions arguable with a realistic prospect of success. These expressions are really conclusions.”

15 In my considered view that on the paucity of evidence in this regard the Applicant has not satisfied the requirement for the Court to find that they have a real prospect of success on this issue. The issue of the...