Kingston Wharves Ltd
| Jurisdiction | Jamaica |
| Judge | Wright, Q.C. C. |
| Judgment Date | 20 March 2015 |
| Date | 20 March 2015 |
| Court | Industrial Dispute Tribunal (Jamaica) |
| Docket Number | IDT 35/2012 |
Industrial Disputes Tribunal
Wright, C.; Hall, M.; McNish, M.
IDT 35/2012
Employment Law - Industrial dispute — Termination of employment — Dismissal — Procedural fairness — Lack of consultation with worker — Opportunity to be heard — Whether company failed to adhere to rules of natural justice — Whether dismissal fair in all circumstances — Dismissal found to be unjustified — Worker to be reinstated and/or compensated.
By letter dated November 21, 2012 the Honourable Minister of Labour and Social Security pursuant to Section 11A(1)(a)(i) of the Labour Relations and Industrial Disputes Act (hereinafter called “the Act”), referred to the Industrial Disputes Tribunal for settlement in accordance with the following Terms of Reference, the industrial dispute described therein:–
The Terms of Reference were as follows:
“To determine and settle the dispute between Kingston Wharves Limited on the one hand and the Union of Clerical Administration and Supervisory Employees on the other hand, over the termination of employment of Mr. Marlon Gordon.”
The division of the Tribunal which was selected in accordance with Section 8(2)(c) of the Act and which dealt with the matter comprised:
Mr. Norman Wright, Q.C — Chairman
Mr. Rion Hall — Member, Section 8(2)(c)(ii)
Mr. D. Trevor McNish — Member, Section 8(2)(c)(iii)
The Company was represented by:
Ms. M. Angela Robertson — Attorney-at-Law
In attendance were:
Mr. Grantley Stephenson — Chief Executive Officer
Miss Valrie Campbell — Operations Manager
Mrs. Roselee Scott Heron — Human Resource & Administration Manager
Mr. Mark Williams — Chief Marketing Officer
The Union was represented by
Mr. John Levy — Assistant General Secretary
In attendance was:
Mr. Marlon Gordon — Aggrieved Worker
Briefs were submitted by the parties and oral submissions made during sixteen (16) sittings, from February 4, 2014 to November 24, 2014.
The Company is located within Kingston Harbour the seventh largest natural harbour in the world located on the southern side of the island of Jamaica at latitude 17° 50'N and longitude 76° 48'W in the Caribbean Sea.
It operates a multi-purpose terminal, which is publicly owned and whose operations are contained solely on the wharf and is regulated by the Government of Jamaica through the Port Authority of Jamaica (“the Authority”).
The port terminal provides a full-range cargo handling and logistics services 24 hours per day, 7 days per week including:
Mooring and Unmooring of Vessels
Stevedoring
Equipment Rental
Stripping and Stuffing of Containers
Storage and Warehousing
Reconstruction of Containers
Cargo Handling Services
Transshipment
Refrigerated Container Management & Support
The Company's transshipment service has achieved exponential growth over the last decade. Two of the Region's premier shipping companies utilize the Company's terminal as their transshipment hub, operating weekly feeder services to Caribbean and Latin American Ports. The regional transshipment hub for one of the world's leading motor vehicle carriers is managed by the Company, the first direct service of its kind from Europe to Jamaica.
The terminal has developed into an efficient cargo receival, storage and delivery facility, with operations involving shippers, shipping lines, agents, stevedores, consolidators, de-consolidators, customs officers, customs brokers and consignees at the hub of the operations.
The wharves operate twenty-four hours per day, three hundred and sixty-five days per year. Services provided include but are not limited to berthing of vessels, stevedoring, receiving, storing and delivering of cargo, stripping and stuffing of containers and provision of reefer facilities.
The Company consists of two divisions; Operations and Administration. The Operations Division provides the core services of receival, storage, delivery of cargo, import, export and transshipment.
The Administration Division provides the support services needed for the effective, efficient functioning of the Operations Division. There is a Finance Department with Accounts — Billing Accounts — Payables, Credit, Payroll and Claims Sections. Customer Service, Human Resources, Information Technology and Audit are the other departments in Administration
Is a statutory Corporation established by the Port Authority Act of 1972 (“the Act”). It is the principal maritime agency responsible for the regulation and development of Jamaica's ports and shipping industry. The Authority is responsible for the safety of all vessels navigating the ports of entry and regulation of the tariffs charged on goods passing through the public wharves.
Section 7(1) of the Act sets out the powers of the Authority. This section states, inter alia, that anyone who contravenes any directions given by the Authority shall be guilty of an offence the penalty for which will be a fine or imprisonment.
Section 11 of the Act gives the Authority the power to make by-laws. Under this section the Authority has the right to make by-laws governing, inter alia, the right to exclude or remove from the premises of the Authority idle, disorderly or other undesirable persons and to regulate the conduct of persons employed on wharves and premises vested in its possession.
Pursuant to the provisions of Section 11 of the Act the Port Authority (Port Management and Security) By-laws 2009 (“The Regulations”) were promulgated. The Regulations define, inter alia, a “Wharf Company” as meaning a Company or any other person or body of persons operating port facilities.
The Regulations deal with the use and operations of the Ports and the relevant approvals that have to be obtained by persons or entities utilizing these facilities. Sections 10 and 11 are applicable to the dispute before the Tribunal.
Section 10 of the Regulations deals with security measures at port facilities. These Regulations provide the Authority with the legal right to issue and withdraw authorization from any person to whom any prescribed identification is issued. Further, it mandates that anyone to whom the identification document is issued shall comply with the terms and conditions upon which it was issued. Pursuant to Section 10, it is mandatory that once the Authority requests the prescribed identification document, it shall be surrendered forthwith; there is no choice available to the person to whom it is issued.
By a letter dated December 30, 1994, Marlon Gordon was confirmed in the post of a Container Marshall at the Company with effect from 1st January 1995.
By letter dated September 18, 2006, he was promoted to the position of Stevedore Coordinator and occupied that position up until his contract of employment was terminated by letter dated November 2, 2011. The letter outlined the salary to be paid, as well as other terms and conditions of employment. Mr. Gordon worked in several other job categories during his years at the Company.
By letter dated October 31, 2011, the Authority pursuant to its legal right under the Act and the Regulations, wrote to the Company's Chairman & CEO and included the following terms:
“Pursuant to Regulation 10(4)(b) of The Port Authority (Port Management and Security) Regulations, 2010, The Authority is requiring that the prescribed identification cards held by the persons named on the attached list be surrendered forthwith to The Authority.
Consequently, we are requesting that you retrieve the Port Identification Cards from these persons who are in your employ and return them to the Vice President of Security at The Port Authority of Jamaica by Wednesday, November 2, 2011.”
Attached to that letter were names of nine (9) Identification Card Holders, including that of Mr. Marlon Gordon, all of whom were dealt with in the same way by the Company. Pursuant to its legal obligations under the Act and the Regulations, the Authority had mandated that the Company retrieve the Port Identification Cards from the relevant holders and return them to the Authority by Wednesday, November 2, 2011.
Upon receipt of the letter from the Authority the Company said it had no alternative but to write to Mr. Gordon terminating his contract of employment, stating the terms based on the provisions of the Act and the Regulations which included:
“The revocation of your prescribed identification document means that you are unable to perform the job for which you were employed. In the circumstances we have no alternative but to terminate your contract of employment with immediate effect.”
The Company submitted that at all material times all employees of the Company, were aware of and knowledgeable of their obligations to have a Port Identification Card and that without the same, they would not be able to access the Port and thereby not be able to perform the job for which they were employed.
The Union of Clerical, Administrative and Supervisory Employees is a registered Trade Union which gained bargaining rights for certain categories of workers at the Company in 2008, to include the categories held by the affected employee. Consequently, at the material time, it had bargaining rights in respect of the following categories of employees working with the Company:
System Engineer
Supervisor Motor Vehicle
Snr. Account Payables Clerk
Stevedore Coordinator -1
Secretaries
Planner
Snr. Account Receivables Clerk
Inventory Clerk
Administrative Assistant
Supervisors
Accounts Clerk
During wage negotiations between the Union and the Company in late 2011, it was revealed to the...
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