Nerine Small v DPP

• Jurisdiction: Jamaica
• Judge: Marsh, J.,McDonald, J.,Batts, J.
• Judgment Date: 29 July 2013
• Docket Number: CLAIM NO. 2013/HCV00626
• Court: Supreme Court (Jamaica)
• Date: 29 July 2013

[2013] JMSC FULL COURT 1

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

Coram:

The Hon. Mr. Justice H. Marsh

The Hon. Ms. Justice C. McDonald

The Hon. Mr. Justice D. Batts

CLAIM NO. 2013/HCV00626

Between

Nerine Small

Applicant

and

The Director of Public Prodecutions

Respondent

Mrs. Georgia Gibson-Henlin instructed by Henlin Gibson Henlin, Attorney-at-Law for the Applicant.

Ms. Tracy Ann Johnson and Mrs. Andrea Swaby , Attorneys-at-Law for the Respondent.

Ms. Carlene Larmond for the Attorney General.

Renewed Application for Permission to Apply for Judicial Review — Whether Director of Public Prosecution's decision not to prosecute ultra vires — Circumstances in which permission to review will be granted — Labour Relations and Industrial Disputes Act — Enforcement of Order of the Industrial Disputes Tribunal.

Marsh, J.

I have read the judgment and reasons in draft of Batts, J. and save to say that I concur, have nothing to add.

McDonald, J.

I also have been afforded the opportunity to read the judgment in draft of Batts, J. I agree with his reasons and conclusion.

Batts, J.

1 The Applicant, Nerine Small had her application for permission to apply for Judicial Review refused by the Honourable Mr. Justice Donald McIntosh a Judge of the Supreme Court. She has renewed that application before the Full Court of the Supreme Court pursuant to Order 56.5 (1) of the Civil Procedure Rules.

2 The renewed application is supported by three affidavits of Nerine Small dated 5 ^th February, 2013, 3 ^rd June, 2013 and 8 ^th February, 2013. The Respondent has filed and relies on two affidavits of Andrea Swaby sworn to on the 11 ^th February, 2013 and 1 ^st July, 2013. The material facts and circumstances of the application are not in dispute and may be shortly stated.

3 The applicant was employed to Caribbean Airlines Ltd., as Vice-President Legal Affairs and Corporate Secretary. Her employment was terminated and she alleged the termination was wrongful. The applicant's complaint was eventually heard by the Industrial Dispute Tribunal which after a hearing made an award in her favour. The award is dated the 31 ^st July, 2012 and concludes with the following words:

‘Caribbean Airline Limited, having conceded its case by its expressed inability to adduce evidence to justify its decision to dismiss the worker have left the Tribunal with the simple task of determining what is a just fair and reasonable Award taking into consideration all the relevant facts in this matter.

In doing this Tribunal is guided by the judgment of the Lords of the Judicial Committee of the Privy Council Appeal No. 69 of 2003 in Jamaica Flour Mills v. Industrial Disputes Tribunal and National Workers Union , where Lord Scotty (sic) Foscote at paragraph 24 made the following pronouncement on the matter of reinstatement:

‘……..their Lordships would observe, however that the concept of reinstatement has some flexibility about it. Reinstatement does not necessarily require that the employee be placed at the same desk or machine or be given the same work in all respects as he or she had been given prior to the unjustifiable dismissal. If, moreover, in a particular case, there really is no suitable job into which the employee can be re-instated, the employer can immediately embark upon the process of dismissing the employee on the ground of redundancy, this time properly fulfilling his obligations of communication and consultation under the code……’

Accordingly, as a result of the unjustified dismissal of Nerine Small, the Tribunal awards as follows:

THE AWARD

That Miss Nerine Small be reinstated in her job effective July 1, 2011 with the payment of full normal wages.’

4 Miss Small's Attorneys thereafter wrote to the airline's attorneys requesting implementation of the award. The airline's attorneys wrote back indicating that they would not be appealing the Industrial Disputes Tribunal's award and intended to “fully” comply. They advised in that letter, which is dated 13 ^th August, 2012 that:

‘CAL intends to make the post of Vice President Legal Services redundant and this will take effect later this week. Accordingly, Miss Small will receive her full salary, for the month of August 2012 together with pay in lieu of notice in respect of the redundancy exercise on or before Friday 17 ^th August, 2012.’

The letter dated 13 ^th August, 2012 was signed by Anna Gracie of the firm Rattray Patterson Rattray which represented Caribbean Airlines Limited.

5 Two letters dated the 15 ^th August, 2012 addressed to Miss Nerine Small were sent to the office of her attorneys. These letters were signed by Miss Charmaine Heslop-DaCosta, Vice President Human Resources of Caribbean Airlines. The letters read as follows:

‘August 15, 2012

Ms. Nerine Small

6 Fort George Road

Stony Hill

St. Andrew

JAMAICA

Dear Ms. Small

In accordance with the decision of the Industrial disputes Tribunal on July 31, 2012 for the reinstatement of your employment to Caribbean Airlines Limited, we have requested of the Norman Manley International Airport (“NMIA”) to issue you with a permanent Restricted Access Pass (RAP) which will be processed according to NMIA's security screening procedures. In the interim, arrangements have been put in place for NMIA to issue you with a Temporary/Visitor's Pass to facilitate access to the Hangar offices.

On NMIA's issuance of the Temporary/Visitor's Pass, you will be accompanied by a company representative to your offices as contained in the NMIA security procedures. When exiting the compound, you will be required to surrender the Temporary/Visitor's Pass to the security personnel on duty.

Yours truly

CARIBBEAN AIRLINES LIMITED

Charmaine Heslop-DaCosta (Mrs.) Vice President, Human Resources

August 15, 2012

Ms. Nerine Small

6 Fort George Road

Stony Hill

St. Andrew

JAMAICA

Dear Ms. Small:

We write to advise that Caribbean Airlines (CAL) has reorganized the manner in which it delivers legal services within its organization. One effect of that reorganization is that it has outsourced many of the functions previously carried out by the Vice President Legal and Corporate Secretary. Additionally, it has created the post of General Counsel.

As a result of the foregoing your position as Vice President and Corporate Secretary will be declared redundant and your employment terminated with effect from August 15, 2012.

You will be paid up to August 15, 2012 when your employment will be terminated. You will also be paid in lieu of your notice entitlement as well as for any outstanding vacation leave due to you. Your employment commenced in October 2010. Accordingly, you are not entitled to redundancy within the provisions of the Employment (Termination and Redundancy Payments) Act.

However, upon receipt of these payments you will not be required to report for duty over the period August 1, 2012 to August 15, 2012 when you are paid and when your termination takes effect, unless you are specifically required to do so.

Please see hereunder a detail of the compensation to which you are entitled in respect of this termination:

	JAD	USD
Total Net Salary for July 1, 2011 to July 31, 2012	1,319,959.37	110,357,98
Total net payments inclusive of the following: Salary for August 1, 2012 to August 15, 2012 Vacation for 20 days Payment in lieu of notice for 3 months	378,472.58	37,148.58

You will observe that normal wages, notice pay and pay for untaken earned vacation leave are subject to normal statutory and other payroll deductions. (See statement attached and four cheques enclosed).

You are required to return all company property, including, if applicable, but not limited to, files, identification cards.

We take this opportunity to thank you for your service to the Company and wish for you success in your future endeavours.

Yours truly,

CARIBBEAN AIRLINES LIMITED

Charmaine Heslop-DaCosta (Mrs.) Vice President, Human Resources

Enclosures: ’

6 The applicant was not able to resume her position, sit at a desk or even return to the offices of Caribbean Airlines Ltd. In effect it appears she was reinstated and made redundant simultaneously. Her attorneys by letter dated 26 ^th September, 2012 protested what they allege was the failure of Caribbean Airlines Ltd. to implement the order of the Industrial Disputes Tribunal. After an exchange of letters in which Caribbean Airline's attorneys mentioned they had ‘reinstated and then terminated her employment by way of redundancy,’ the applicant laid an information Number 26007/2012 before the Corporate Area Resident Magistrate's Court on the 16 ^th October 2012. Caribbean Airlines Ltd. was charged with breach of an order of the Industrial Disputes Tribunal pursuant to Section 12(9) (a) of the Labour Relations and Industrial Disputes Act.

7 By letter dated the 9 ^th October, 2012 Caribbean Airlines Ltd. through its attorneys wrote to the Minister of Labour and Social Security seeking the Minister's:

‘Intervention to ensure that this matter may be resolved.’

That letter in its second paragraph defined the ‘matter’ to be resolved in the following way:

‘A dispute exists between our client and Miss Nerine Small arising from an Award of the Industrial Disputes Tribunal handed down on 31 ^st July, 2012 and a decision taken by our client contained in letter dated 15 ^th August, 2012 to make the position of Vice President, Legal Affairs and Corporate Secretary redundant.’

8 Having received no response or acknowledgement the attorneys for Caribbean Airlines Ltd. wrote another letter to the Minister dated 14 ^th December, 2012 by way of follow up. Neither of these letters were copied to the...