Kingston Wharves Ltd v Industrial Disputes Tribunal
| Jurisdiction | Jamaica |
| Judge | Phillips JA,Straw JA,Fraser JA |
| Judgment Date | 18 December 2020 |
| Neutral Citation | JM 2020 CA 158 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 124/2017 |
| Date | 18 December 2020 |
[2020] JMCA Civ 66
IN THE COURT OF APPEAL
THE HON Miss Justice Phillips JA
THE HON Miss Justice Straw JA
THE HON Mr Justice Fraser JA (AG)
SUPREME COURT CIVIL APPEAL NO 124/2017
and
Ransford Braham QC and Miss Kimberly Morrison instructed by Braham Legal for the appellant
Miss Althea Jarrett instructed by the Director of State Proceedings for the respondent
Lord Gifford QC and Mrs Emily Shields instructed by Gifford, Thompson & Shields for the interested party
This appeal challenges a decision made by G Fraser J on 30 November 2017, wherein she refused to quash an award made on 20 March 2015, by the respondent, the Industrial Disputes Tribunal (IDT), or make declarations that the orders made by the IDT were manifestly excessive, unreasonable, illegal and void. Kingston Wharves Limited (KWL) sought to challenge G Fraser's J decision on the basis that she had erred in dismissing its application for judicial review of the IDT's decision, having regard to various alleged erroneous findings of fact made by the IDT and its failure to consider the issue of frustration.
KWL is a publicly listed company registered under the Companies Act and is regulated by the Port Authority of Jamaica (the Port Authority). It operates a multipurpose terminal port/facility with operations in the Kingston Harbour, and provides a full range of cargo handling and logistic services, conducted mainly in the port of Kingston.
The Port Authority is a statutory corporation established by the Port Authority Act. It derives its powers from that Act and the Port Authority (Port Management and Security) By-Laws 2009 (the by-laws), substituted by the Port Authority (Port Management and Security) Regulations 2010 (the regulations). The Port Authority is the principal maritime agency in Jamaica responsible for the regulation and development of the ports and the shipping industry within the jurisdiction.
The IDT is a statutory tribunal established pursuant to the Labour Relations and Industrial Disputes Act (the LRIDA).
The interested party, the Union of Clerical, Administrative & Supervisory Employees (UCASE), is a trade union. It gained representational rights of the workers at KWL in May 2009, and, from then on, represented Mr Marlon Gordon against KWL and before the IDT. It was the termination of Mr Gordon's employment with KWL that initiated the dispute between the parties.
All KWL employees are subject to rigid security requirements with regard to access to and from the port facilities. Prior to 2004, these requirements included the issuance of port passes to regular port users and to employees. Subsequent to 2004, and in response to the 2001 terrorist attacks in the United States of America, a comprehensive series of security procedures called the International Ship and Port Facility Security Code (ISPS Code) were introduced. The ISPS Code was issued as a part of the International Convention for the Safety of Life at Sea (the Solas Convention), to which Jamaica is a party. It was the Port Authority's responsibility to ensure that all facilities which fall under the ISPS Code in Jamaica complied with the Solas Convention. The Electronic Access Control Programme was a requirement under the ISPS Code. Its implementation began in 2005 and was completed in 2006. One important feature of that security measure was the issuance of a port identification card (pass) to gain access to the port. Pursuant to those requirements, employees would have been prohibited from entering the port without a pass. Since 2005, the Port Authority had control of the security process in relation to the issuance of passes for entry to the port.
The by-laws/regulations and the Electronic Access Control System Guidelines (the guidelines) set out the process for approval, suspensions, revocation of those approvals, and the appeal process, and the issuance of personnel passes, and the denial and revocation of the same. The relevant provisions of the by-laws/regulations are sections 6, 8 and 23. They state that:
“6.— (1) Upon receipt of an application for the approval of an exporter or trucker, the Authority may, after making such enquiries as it thinks fit—
(a) grant the approval subject to such terms and conditions as it thinks fit;
(b) refuse to grant the approval,
and where the Authority refuses to grant an approval it shall state in writing the reasons for its decision and inform the applicant of his right under regulation 23 to appeal against the decision.
(2) An approval shall not be transferable and shall be valid for such period as is specified therein.
…
8.— (1) Subject to paragraph (2), the Authority may suspend an Approval if the holder—
(a) has failed to pay any fees or other charges required to be paid under these Regulations;
(b) contravenes any of these Regulations or any term or condition subject to which the approval is granted;
(c) is convicted of any offence under regulations made under the Act or any offence under the Dangerous Drugs Act (other than under section 7D of that Act); or
(d) notifies the Authority in writing that he intends to cease the operations for which he is approved for the period stated in the notice.
(2) Before suspending an approval under paragraph (1)(a), (b), (c) or (d), the Authority shall notify the person in writing of the proposed suspension stating the reason therefor.
(3) The Authority may revoke an approval if it is satisfied that—
(a) the holder has ceased to comply with the provisions of these Regulations;
(b) the application for the approval contained any false or misleading information in any material particular;
(c) any fee payable by the holder remains unpaid for a period of ninety days after the suspension of the approval.
(4) Before revoking an approval under paragraph
(3), the Authority shall notify the holder in writing of the proposed revocation stating the reasons therefor.
…
23.— (1) Any person aggrieved by the refusal of the Authority to grant an approval or the suspension or revocation by the Authority of his approval, may, within fifteen days of being notified in writing of such refusal, suspension or revocation, appeal in writing to the Minister who shall thereupon appoint a Tribunal pursuant to paragraph (2) to hear and determine the appeal.
(2) The provisions of the Third Schedule shall have effect as to the constitution of the Tribunal and otherwise in relation thereto.
(3) On the determination of an appeal under this regulation the Tribunal may make such order as it thinks fit and the decision of the Tribunal shall be final.”
The relevant provisions of the guidelines are as follows:
“ Security Clearance
In compliance with PAJ's Port Security Regulation, long term and permanent passes may only be issued after the completion of criminal background vetting by the Jamaica Constabulary Force.
The National Port Identification System application process will work as follows:
Personnel Passes
1. The processing center [sic] will accept applications for port identification cards.
2. Once the application is completed, the JCF will conduct a background check on the individual
3. On completion of the background check, the JCF will issue a certificate indicating the findings of their investigations.
4. Upon successfully completing the application process and a favorable [sic] police report, a card will be issued to the individual.
5. The port facilities, if access is approved, will then assign their respective protocols for the individuals entering their facilities.
6. The respective port facilities reserve the right to deny access to any person, regardless of the person being a legitimate cardholder. The control center [sic] reserves the right to investigate beyond the records of the JCF (past employees, references etc.)
7. Cardholder's authorization will be audited every annually [sic] to ensure access criteria are still met. Passes will be revoked if the access criteria are not met.
…
Denial of Passes
The Port Security has the right to deny the issuance of a port identification card if, during its background investigation it has been revealed that the applicant has a criminal record that may prevent him/her from being issued with a card.
A schedule of offences, which may preclude an applicant from being issued a port security access card, would include, but not be limited to:
1. Conviction for any firearm and/or ammunition related offences.
2. Conviction for any illegal drug related offences.
3. Conviction for murder.
4. Conviction for rape.
5. Conviction for any other major felony.
Appeals
In the event of a failure to be issued an identification card, or the revocation of an identification card, the complainant may submit an appeal to the Port Authority of Jamaica's Security Department for review.
The PAJ in consultation with the facility, for which the application is being made, may give consideration for records that have been expunged or time spent.
…
Revocation of Passes
All personnel and equipment will be required to comply with the security and safety regulations and guidelines governing Port Facilities. Passes may be revoked for any security/safety breaches, which include but are not limited to the following:
1. Being in possession of any unlicensed firearms, other dangerous weapons or narcotic drugs while on the facility.
2. Being engaged in theft or found in possession of any valuables belonging to the facility.
3. Assisting with the trafficking of illegal drugs, guns, ammunition or any unlawful substance or goods.
- ...
4. Exceeding the posted speed limits or dangerous operation of equipment or vehicles while on the facility.
To continue reading
Request your trial