Kevin Simmonds v The Minister of Labour and Social Security

• Jurisdiction: Jamaica
• Judge: S. Jackson-Haisley, J,C. Brown Beckford, J
• Judgment Date: 29 April 2022
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. SU 2020 CV 00914

Between:

Kevin Simmonds

Claimant

and

The Minister of Labour and Social Security

Defendant

and

The Attorney General of Jamaican

Defendant

[2022] JMFC FULL 02

CORAM:

THE HONOURABLE Mrs. Justice Cresencia Brown Beckford

THE HONOURABLE Mrs. Justice Stephane Jackson-Haisley

THE HONOURABLE Ms. Justice Carole Barnaby

CLAIM NO. SU 2020 CV 00914

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Judicial Review — Labour Relations and Industrial Disputes Act (LRIDA) — Sections 2, 11 A (1), 12 (5) (c) — Employment terminated by reason of redundancy — Intervention of Minister of Labour and Social Security under the LRIDA sought after acceptance of redundancy package and filling of post the subject of the dispute — Whether the Minister acted ultra vires the Act in deciding not to refer the dispute to the Industrial Disputes Tribunal -Whether a Minister may properly consider the issue of waiver of the rights at sections 12 (5) (c) of the LRIDA in determining whether or not to exercise the power to refer a dispute to the IDT pursuant to section 11 A (1) of the LRIDA — Whether there was a foundation of facts of waiver upon which the Minister could have acted in not referring the dispute to the IDT.

Constitutional Law — Constitution of Jamaica — Charter of Fundamental Rights and Freedoms — Section 16 (2) — Whether the Minister breached the Claimant's rights to a fair hearing, fair hearing within a reasonable time before an independent and impartial tribunal established by law in deciding not to refer the dispute to the Industrial Disputes Tribunal days before the hearing of the claim for constitutional redress.

Crown Proceedings Act — Sections 2 and 3 — Whether constitutional claims and claims for judicial review are civil proceedings within the meaning of the Act to enable the Attorney General to be joined as a party to the claim pursuant to it.

IN CHAMBERS

Kwame Gordon and Joerio Scott instructed by Samuda & Johnson, Attorneys-at-Law for the Claimant.

Louis Jean Hacker and Nicola Richards instructed by the Director of State Proceedings, Attorney-at-Law for the Defendants.

C. Brown Beckford, J

1 I have read in draft the judgments of Jackson-Haisley and Barnaby JJ which have comprehensively addressed the issues raised in this claim. Despite my view for the compelling reasons given by my sister Jackson — Haisley that the Claimant's constitutional right to a fair hearing within a reasonable time may have been breached, I agree with the reasoning and conclusions of Barnaby J that the court in this instance should decline to exercise its jurisdiction on the basis that this claim is an abuse or misuse of process.

2 While one may have been inclined to the view that as recent authorities suggest that there should be a generous approach to constitutional interpretation, the decisions of Ramanoop and other similar authorities (infra) may no longer be persuasive on the issue of circumscribing applications for constitutional redress, the Judicial Committee of the Privy Council (Privy Council) recently settled the question in Brandt v Commissioner of Police and Others [2021] UKPC 12 ( Brandt). In Brandt, the Privy Council considered a provision similar to Section 19 of our Charter of Rights and Freedoms (infra). In that case the Appellant was charged with various criminal offences. The prosecution sought to admit at his trial “WhatsApp data” obtained by police from a search of the Appellant's cell phone. The Appellant contended that the search of his cell phone was in breach of his constitutional right of privacy. Instead of challenging the admissibility of this evidence in the criminal trial, the appellant commenced proceedings for an administrative order. Being unsuccessful in the lower courts, he appealed to the Privy Council.

3 Lord Stephens, writing for the Board, in upholding the decision of the Court of Appeal of the Eastern Caribbean Supreme Court (Montserrat) that the application for an administrative order was an abuse of process said:

34. … Abuse of process must involve something which amounts to a misuse of the process of litigation. However, whilst the categories of abuse of process of the court are not fixed there are clear examples which are relevant to this appeal.

35. First, to seek constitutional relief where there is a parallel legal remedy will be an abuse of the court's process in the absence of some feature “which, at least arguably, indicates that the means of legal redress otherwise available would not be adequate”. The correct approach to determining whether a claim for constitutional relief is an abuse of process because the applicant has an alternative means of legal redress was explained by Lord Nicholls, delivering the judgment of the Board in Attorney General of Trinidad and Tobago v Ramanoop [2006] 1 AC 328 at para 25, as follows: “…where there is a parallel remedy constitutional relief should not be sought unless the circumstances of which complaint is made include some feature which makes it appropriate to take that course. As a general rule there must be some feature which, at least arguably, indicates that the means of legal redress otherwise available would not be adequate. To seek constitutional relief in the absence of such a feature would be a misuse, or abuse, of the court's process. A typical, but by no means exclusive, example of a special feature would be a case where there has been an arbitrary use of state power.” There are examples of the application of that approach in cases such as Harrikissoon v Attorney General of Trinidad and Tobago [1980] AC 265 at 68, Jaroo v Attorney General of Trinidad and Tobago [2002] 1 AC 871 at para 39 and most recently, in Warren v The State (Pitcairn Islands) [2018] UKPC 20 at para 11. This approach prevents unacceptable interruptions in the normal court process, avoids encouraging technical points which have the tendency to divert attention from the real or central issues, and prevents the waste and dissipation of public funds in the pursuit of issues which may well turn out to be of little or no practical relevance in a case when properly viewed at the end of the process. This approach also promotes the rule of law and the finality of litigation by preventing a claim for constitutional relief from being used to mount a collateral attack on, for example, a judge's exercise of discretion or a criminal conviction, in order to bypass restrictions in the appellate process (see eg Chokolingo v Attorney General of Trinidad and Tobago [1981] 1 WLR 106 at 111-112).

4 I am therefore in agreement that parties should not be encouraged forego alternative or parallel remedies afforded to them which are adequate to prevent or arrest a breach or further breach of their constitutional rights (and consequent damages) guaranteed to them under the Charter of Rights in favour of a claim for constitutional relief.

S. Jackson-Haisley, J (Dissenting on the claim for constitutional redress)

5 I have read in draft the judgment of my sister Barnaby J and I agree with her in respect of the decision on the Judicial Review Claim. However, with respect to the Constitutional Claim, there is a point of divergence, specifically as it relates to my findings as to whether or not the Claimant's right to a fair trial within a reasonable time has been breached. I am of the view that his right has been breached in that regard. I have set out below my findings in relation to the Constitutional Claim in its entirety.

6 I wish to associate myself with the ‘Background to the Claim” set out quite admirably in the judgment of Barnaby J and so I will proceed to deal the Constitutional Claim without the burden of a background.

THE CONSTITUTIONAL CLAIM

7 The issues raised here have to do with constitutional interpretation and application specifically as it relates to the Charter of Fundamental Rights and Freedoms (the Charter).

8 This Constitutional Claim is predicated on the right to seek redress pursuant to section 19(1) of the Charter which gives the Claimant the right to apply to the Supreme Court to determine the issues raised in this matter. Section 19(1) provides as follows:

If any person alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully applicable, that person may apply to the Supreme Court for redress.

9 Section 19(1) is styled the redress clause as it gives the Claimant locus standi to approach the Court to seek relief for what he alleges is a breach of his fundamental right to due process and it endows the Court with the power to provide effective relief to him where there has been a violation of a fundamental right. The Supreme Court is vested with original and “unlimited” jurisdiction to hear and determine a matter such as this and so has the power to fashion effective remedies to secure the enforcement of a fundamental right. 1

10 The Claimant seeks declaratory reliefs and/or damages by reason of what he alleges to be the breach of his rights to a fair hearing, a fair hearing within a reasonable time and a fair hearing before an independent and impartial tribunal established by the Labour Relations and Industrial Disputes Act (LRIDA). In the Amended Fixed Date Claim Form filed on October 20, 2021 he set out the particulars as seen below:

… by reason of the breach of [the Claimant's] rights to a fair hearing, a fair hearing within a reasonable time and a fair hearing before an independent and impartial tribunal established by the Labour Relations and Industrial Disputes Act by reason of her failure to consider and/or direct and/or deliberately causing delay in the adjudication of the Claimant's dispute at the Industrial Disputes Tribunal (the “Tribunal”) and/or by reason of her failure to refer the said dispute to the Tribunal, therefore...