Kingston Wharves Ltd v Industrial Disputes Tribunal

JurisdictionJamaica
JudgeG. Fraser, J
Judgment Date30 November 2017
Neutral Citation[2017] JMSC Civ 199
Docket NumberCLAIM NO. 2015 HCV 02361
CourtSupreme Court (Jamaica)
Date30 November 2017

[2017] JMSC Civ. 199

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Coram:

G. Fraser, J

CLAIM NO. 2015 HCV 02361

Between
Kingston Wharves Limited
Claimant
and
Industrial Disputes Tribunal
1 st Respondent

and

Interested Party
2 nd Respondent

Mr. Ransford Braham Q.C. and Mr. Jeffery Foreman instructed by Brahamlegal for the Claimant.

Ms. Althea Jarrett instructed by the Director of State Proceedings for the Defendant.

Lord Anthony Gifford Q.C. and Mrs. Emily Crooks-Shields instructed by Gifford, Thompson and Shields for the interested party (party directly affected) Mr. Marlon Gordon

Cases Mentioned:

Davies Contractors Ltd v. Fareham UDC [1956] AC 696 Walton Harvey Ltd v. Walker and Homfrays Ltd [1931] 1 Ch. 274Jamaica Flour Mills Ltd v. Industrial Disputes Tribunal and Anor [2005] UKPC 16Henderson v. Connect (South Tyneside) Ltd UKEAT (September 2, 2009) – Bancroft v. Interserve (Facilities Management) Ltd UKEAT (December 13, 2012) – R v. Commissioner of Police ex parte Tennant (1977) 26 W.I.R. 457Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223.

Legislation:

Labour Relations and Industrial Relations Act, sections 3 and 12 – Civil Procedure Rules CPR Parts 8, 26, 30 and 56 – Labour Relations Code, sections 20 and 21 – Employment Rights Act UK, section 98.

Judicial Review — Whether Industrial Disputes Tribunal failed to consider relevant issue of frustration of contract — Whether award was manifestly excessive, unreasonable, illegal and void — The Labour Relations And Industrial Disputes Act, sections 3 & 12 — The Civil Procedure Rules, parts 8, 26, 30 & 56.

IN OPEN COURT
1

I have read and reviewed all the submissions made by counsel for the respective parties herein and I have derived much assistance and utility from the said submissions and the authorities provided. If during the course of my determination of the several issues arising, I do not specifically mentioned any particular argument advanced by any of the parties, this does not mean I have not had regard to it in coming to my decision. It is pellucid that much industry and effort has been employed in the preparation of these submissions.

INTRODUCTION
The Caimant – Kingston Wharves Limited
2

The claimant, Kingston Wharves Limited, is a publicly listed company registered under the Company's Act. It operates a multi-purpose terminal/port facility in the Kingston Harbour or Port. Its business includes the handling of cargo and related logistics services. The wharf where the claimant carries out its operations is also its sole place of business, which is in turn governed by the Port Authority of Jamaica.

The Port Authority
3

The Port Authority (“the Authority”) is a statutory corporation established by The Port Authority Act [1972] (“the Act”). The Authority derives its powers by virtue of the said Act and additionally from The Port Authority (Port Management and Security) By-laws 2009 (“the By-Laws”). The Authority is the principal maritime agency in Jamaica that is responsible for the regulation and development of the ports and shipping industry within the jurisdiction. Inter alia, the Authority is responsible for safety issues arising at the ports of entry and this includes the regulation of persons using the facilities. Section 11 of the Act empowers the Authority to enact by-laws and pursuant to that provision the By-Laws were promulgated

4

Significantly the By-Laws deal with the relevant approvals that must be obtained by persons utilising the port facilities. Pursuant to section 10 of The Port Authority (Port Management and Security) Regulations 2010 (“the Regulations”), the Authority has the power to issue identification cards also referred to as ‘the identification document, prescribed document or the ‘pass’’. Without this prescribed document or pass no person is lawfully permitted to be on or remain on the Port.

5

In 2005 the Authority introduced new security measures at the port facilities. Amongst the measures implemented was the requirement that the employees of its client, the claimant, be issued with ‘Port Identification Cards’. Without this card the employees would not be able to access their place of work.

The aggrieved worker
6

Mr. Marlon Gordon was at all material times an employee of the claimant. He commenced his service on the 1 st of January 1995. He was initially employed as a Container Marshall and thereafter promoted to the position of Stevedore Coordinator. He was employed in this position at the time of his separation from the claimant company.

7

A series of activities led to the termination of Mr. Gordon's employment, and I use the word ‘termination’ advisedly. The events that led to Mr. Gordon's separation are that the Authority by letter dated the 31 st of October 2011 requested that the claimant retrieve Mr. Gordon's ‘pass’ and return it to them. There is no indication, on the evidence before me, why this occurred but for present purposes it is irrelevant. The claimant thereafter by letter dated the 2 nd of November 2011, purported to terminate Mr. Gordon's employment with immediate effect, indicating to him that the Authority's action of revoking his pass effectively rendered him incapable of performing the work he was employed to do.

8

The plight of Mr. Gordon eventually became known to his trade union representatives and they subsequently intervened on his behalf. The ensuing discussions proved futile and so there was no settlement of the matter at the local level.

The Trade Union
9

The Union of Clerical, Administrative and Supervisory Employees (UCASE) is a registered trade union seized with bargaining rights for certain categories of workers employed to the claimant company. Mr. Marlon Gordon was one of the claimant's employee represented by UCASE. The Union after being made aware of Mr. Gordon's termination regarded it as unfair and or unjustified and this was therefore the genesis of what they considered an industrial dispute

The Industrial Disputes Tribunal proceedings
10

The claimant's decision to terminate Mr. Gordon's employment gave rise to an industrial dispute which was consequently referred to the Minister of Labour and Social Security (“the Minister”) for conciliation, but this proved unsuccessful. Pursuant to the provisions of the Labour Relations and Industrial Disputes Act [1975] (“the LRIDA”) the Minister in turn referred the dispute to the Defendant, the Industrial Disputes Tribunal (“the IDT”) for settlement.

11

By letter dated the 21 st of November 2012, the Minister, pursuant to section 11A of the LRIDA, referred the dispute to the IDT under the following terms of reference:

“To determine and settle the disputes 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.”

12

The IDT conducted its enquiries over some sixteen (16) sessions lasting from the 4 th of February 2014 to the 24 th of November 2014. The IDT after summarising the case for each party; analysed the evidence and addressed the issues raised by the evidence as they determined them to be. The IDT made findings of fact in respect of issues arising and on the 20 th of March 2015 made its award in writing.

13

The award, inter alia, declared that the termination of Mr. Gordon's employment was unjustifiable and the IDT ordered his reinstatement in accordance with section 12 (5) (iii) of the LRIDA and also ordered that compensation be paid to him. The orders were that the claimant:

  • “(a) reinstate him in his employment on or before March 31, 2015 with payment of eighteen (18) months [sic] salary at the current rate for the position he held at the time the contract of employment was terminated.

  • (b) Failure to act in accordance with (a) to pay him compensation of a sum being the equivalent of three (3) years' salary at the current rate for the position he held at the time the contract of employment was terminated, as relief”.

The Claim for Judicial Review
14

The claimant is dissatisfied with the IDT's decision and is alleging that it committed significant errors when it decided in Mr. Gordon's favour. Consequently, on the 29 th of April 2015, it filed an application for leave for judicial review. Leave was granted on the 19 th of May 2015 by Sykes J.

15

The claimant is seeking the following orders on judicial review:

  • I. An order of Certiorari quashing the Defendant's Award dated 20 th March 2015.

  • II. Alternatively, an Order of Certiorari quashing the Defendant's Order reinstating Marlon Gordon.

  • III. A declaration that the Defendant's Order of compensation is manifestly excessive, unreasonable, illegal and void.

  • IV. A declaration that the Respondent's [sic] award is unreasonable, illegal and void.

  • V. Costs.

  • VI. Such other order, direction and/or relief as this Honourable Court deems just.

16

The approved grounds for judicial review are as follows:

1.1
    Whether the contract of employment between Kingston Wharves Limited and Mr. Marlon Gordon was terminated by the operation of law or by reason of frustration arising from the action taken by the Port Authority of Jamaica. 1.2 If the first question is answered in the affirmative, whether the Industrial Disputes Tribunal had any jurisdiction to hear the matter since Mr. Marlon Gordon would not have been dismissed by Kingston Wharves Limited, whether unjustifiably or not. 1.3 Whether the reliance by the Industrial Disputes Tribunal on the authority K. Henderson v Connect (South Tyneside) Ltd. UKEAT (delivered on the 02nd of September 2009) was erroneous, having regard to the different statutory regime on which that case was based; 1.4 Whether the Industrial Disputes Tribunal misunderstood and/or misapplied Regulations 8 and 23 of the Port Authority (Port Management and Security)...

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