National Commercial Bank Jamaica Ltd v Minister of Labour and Social Security
| Jurisdiction | Jamaica |
| Judge | Simone Wolfe-Reece, J |
| Judgment Date | 27 July 2023 |
| Docket Number | CLAIM NO. SU2022CV03210 |
| Court | Supreme Court (Jamaica) |
[2023] JMSC Civ.145
Simone Wolfe-Reece, J
CLAIM NO. SU2022CV03210
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
JUDICIAL REVIEW — Certiorari — Redundancy — Effect of waiver — considerations of the Minister under Labour Relations and Industrial Disputes Act — what is a dispute — withdrawal of the referral by the Minister — Sections 11A(1)(a)(i) & 11A(3) Labour Relations and Industrial Disputes Act.
Mr. Gavin Goffe & Mr. Jovan Bowes instructed by Myers Fletcher and Gordon for the Claimant
Mr. Louis Jean Hacker instructed by the Director of State Proceedings for the Defendant
Mrs. Ingrid Bryan instructed by Donald A. Bryan & Associates (allowed to make submissions on behalf of Makeda Ramgeet-Baugh)
On the 8th November 2022 S. Orr, J (Ag.) granted leave to the Claimant to apply for an order of Certiorari to quash the Defendant's decision to refer the alleged dispute between the Claimant and its former employee, Mrs. Makeda Ramgeet-Baugh to the Industrial Disputes Tribunal on the condition that the Applicant file a Fixed Date Claim and supporting affidavit form within fourteen (14) days of the order.
The Claimant filed a fixed date Claim form and the affidavit of Javier Burke in support of same on November 22, 2022 seeking the following orders and relief:
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1. Certiorari to quash the Defendant's referral to the Industrial Disputes Tribunal of the alleged industrial dispute between the Claimant and its former employee, Makeda Ramgeet Baugh
On the 19 th January 2023 the Court granted leave to Mrs. Ramgeet-Baugh to file an affidavit on or before February 20, 2023 and permitted her to participate in the proceedings by filing submissions and making an appearance. Mrs Baugh filed an affidavit on February 17, 2023. To date no submissions have been filed. At the hearing of the claim the Court permitted Counsel, Mrs. Ingrid Bryan to orally submit on the issues raised on behalf of Mrs. Ramgeet-Baugh.
It is the Claimant's contention that at the time the Minister of Labour and Social Security referred the matter to the Industrial Disputes Tribunal there was no industrial dispute and the Minister failed to consider this was an error in law that vitiated the referral.
In the affidavit of Javier Burke 1 in support of the fixed date claim form, he outlined that around January 2021, the Claimant commenced a consultation process with Mrs. Ramgeet-Baugh as the position was slated to be removed from the organizational structure. They sent job descriptions for 5 other roles in the Marketing Department and Mrs. Ramgeet-Baugh applied for 4 of those positions.
He admits that she was unsuccessful in obtaining any offers for these posts and the posts were filled by other candidates who had been assessed as more suitableIn paragraph 5 and 6 of his affidavit. He states that the Human Resource Department in the Bank also shared Mrs. Ramgeet-Baugh's profile with other divisional heads and even though she was shortlisted she was never selected for any position. As a result of this the bank decided to move forward with the redundancy exercise which was intended to be completed by February 2021.
By way of a letter dated March 22, 2021 the Bank advised the NCB Staff Association of redundancy exercise in relation to the post held by Mrs. Ramgeet-Baugh. They assert they received no expressed objection and they proceeded with the reorganization exercise. Further, a letter dated April 6, 2021 under the hand Hopelin Hines was sent to Mrs. Ramgeet-Baugh which outlined what is best described as the terms of termination and a separation statement which sets out the calculation and amount to be paid.
Mr Burke's evidence is that it is not until the 6th July 2021 that the Bank received a letter from Senator Lambert Brown, CD, dated June 5, 2021 alleging that the termination of Mrs. Ramgeet-Baugh was unjustifiable. The matter was subsequently reported to the Ministry of Labour and Social Security, the parties attended conciliatory meetings but there was no resolution.
By Memorandum dated July 1, 2022 exhibited to the affidavit of Andrea Marshall, 2 Mr. Michael Kennedy, Chief Director Industrial Relations recommended to Minister Karl Samuda, that the matter be considered for referral to the Industrial Disputes Tribunal under Section 11A(1)(a)(i) of the Labour Relations and Industrial Disputes Act.
On July 26, 2022 Attorneys at law for the Claimant wrote to the Ministry of Labour & Social Security indicating that Mrs Ramgeet-Baugh did not raise any protest objection or dispute to the redundancy exercise and that she had accepted severance payment. It is their contention ground of this application that such acceptance amounted to a waiver to initiate an industrial dispute or seek such redress. An extract from the letter is reproduced below:
“There being no protest, objection or dispute raised in connection with the redundancy exercise from the time it was first mentioned to Mrs. Ramgeet-Baugh on March 22, 2021, NCB concluded the exercise in the honest and reasonable belief that there was no industrial dispute. It removed the position of Corporate Communications Officer from its organizational structure.
In light if the foregoing, it is our considered opinion that Mrs. Ramgeet-Baugh waived any right to raise an industrial dispute concerning her dismissal by reason of redundancy. This view is supported by recent Court decisions in Jamaica Police Co-Operative Credit Union Society v The Minister of Labour and Social Security [2019] JMSC Civ 67 and Desnoes & Geddes Limited (t/A Red Stripe) v The Minister of Labour and Social Security (Claim No. SU 2021 CV 04511).”
Despite this letter, on September 12, 2022 the Minister referred to the Industrial Disputes Tribunal a dispute between the National Commercial Bank Jamaica Limited and Makeda Ramgeet-Baugh with the following terms of reference:
“To determine and settle the dispute between the National Commercial Bank Jamaica Limited on the one hand and Makeda Ramgeet-Baugh on the other hand over the termination of her employment by reason of redundancy.”
On 19th January 2023 a stay of proceedings of the hearing before the IDT was granted pending the outcome of this claim. The Defendant's position was not to challenge the Order being sought. However, based on the previous Orders of the Court Mrs. Ramgeet-Baugh's objections were fully heard and considered.
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