Othniel Dawes and Another v Minister of Labour and Social Security
|Evan Brown, J
|24 May 2013
| JMSC Civ 64
|Supreme Court (Jamaica)
|CLAIM NO. 2011 HCV 03377
|24 May 2013
 JMSC Civ. 64
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2011 HCV 03377
Mr. Glenroy Mellish for the claimants.
Miss Marlene Chisholm instructed by the Director of State Proceedings for the defendant.
JUDICIAL REVIEW — ILLEGALITY — MINISTER'S REFUSAL TO REFER DISPUTES TO THE IDT AFTER REQUEST — PRESUMPTION AGAINST RETROSPECTIVE OPERATION OF A STATUTE — LABOUR RELATIONS AND INDUSTRIAL DISPUTES ACT SECTION 11A — ORDER FOR CERTIORARI.
IN OPEN COURT
Both claimants were employed to the National Solid Waste Management Authority (NSWMA) as Public Cleansing Inspectors. In the case of the first claimant, he was dismissed from his employment with immediate effect by letter dated 18 th March, 2009. The first claimant sought the intervention of the University and Allied Workers Union (UAWU).
It was his understanding that the UAWU ‘complained’ on his behalf to the management of the NSWMA about what he termed his ‘unjustified dismissal.’ There were conciliation meetings between Mr. Aston Johnson of the UAWAU and conciliation officers of the Ministry which failed to resolve the dispute. The dispute remaining unresolved, the UAWU requested the Minister to refer the dispute to the Industrial Disputes Tribunal (IDT).
As it concerns the second claimant, he was summarily dismissed from the NSWMA on the 20th June, 2008. At the request of the second claimant, the Jamaica Civil Service Association (JCSA) intervened. Through the intervention of the JCSA the dispute surrounding the dismissal of the second claimant was also referred to the Ministry. Unsuccessful conciliation meetings were scheduled and may have been held at the Ministry between 16 th December, 2008 and 23 rd September, 2010 according to the second claimant. Thereafter, the JCSA requested the Minister to refer this dispute to the IDT.
There was uncertainty as to whether the dispute involving the second claimant was referred to, and later withdrawn from the IDT up to November, 2010. In any event, Counsel acting on behalf of both claimants wrote to then Minister of Labour and Social Security, the Honourable Pearnel Charles, urging him to refer both matters to the IDT. The last of a number of letters to the Minister, dated 28 th March, 2011, again entreated the Minister to make the referrals to the IDT under section 11A of the Labour Relations and Industrial Disputes Act (LRIDA) . The claimants' entreaties appear not to have been acceded to.
On the 7 th November, 2011 the claimants were granted leave to apply for judicial review. In their Notice of Application for Court Orders, filed on the 18 th May, 2011, the applicants/claimants sought two principal reliefs. First, an order of mandamus to require the Minister to consider the circumstances surrounding the dismissal of the applicants and to make a determination on their request for referral of the disputes to the IDT according to law. Secondly, a declaration that the failure of the Minister to make a reference having regard to the failure of the parties to reach a settlement by the route of conciliation at the Ministry of Labour and Social Security (the Ministry) is ultra vires .
In furtherance of the grant of leave, the claimants filed a Fixed Date Claim Form (FDCF) on the 15 th November, 2011. In that FDCF the claimants abandoned the quest for a declaration but maintained the claim for an order of mandamus. The FDCF was supported by evidence of the claimants on affidavit.
The present Minister, the Honourable Derrick Kellier assumed office in January 2012 and became aware of ‘an unresolved matter regarding the Claimants.’ In his affidavit which was filed on the 31 st July, 2012, the Honourable Derrick Kellier said he noted that the claimants requested his predecessor to refer their dispute to the IDT under the March 23, 2010 amendment of the LRIDA . Noting that the claimants' employment had been terminated on dates antecedent to the passage of the amendment, he formed the view that their case fell outside of the ambit of the amendment. The Honourable Minister then decided he was not in a position to exercise his discretion to refer the disputes to the IDT.
The Hon Minister gave two reasons for deciding in the way he did. In the first place, there was no evidence before him that there was any threat of industrial action at the NSWMA. Secondly, there was no evidence before him that a reference ought to be made in the public or national interest. He thereafter communicated his decision to the claimants' Attorney-at-Law by letter dated 6 th June, 2012.
Following this decision of the Minister, the claimants filed their ‘Further Amended’ FDCF on the 27 th June, 2012 and obtained leave to apply for an order of certiorari from the same judge who granted leave on the 7 th November, 2011. The order of certiorari is to quash the decision of the Minister which was communicated in his letter of the 6 th June, 2012. The claimants assert the ground of illegality. The ‘Further Amended’ FDCF was supported by evidence of the claimants on further affidavits.
On the substantive judicial review, the claimants seek orders of mandamus and certiorari on the following grounds:
(i) ‘The Respondent is empowered by the terms of the statute to exercise a discretion which he has failed to exercise and is therefore acting ultra vires.’
(ii) ‘The decision of the Respondent is unreasonable having regard to the time that has passed and the efforts made by the parties to the dispute to settle the dispute in conciliation talks at the Ministry of Labour. In the circumstances where no reason has been given for the Respondent's failure to make a decision, the said decision appears arbitrary, capricious and unlawful.’
(iii) The decision of the Minister ‘ is unlawful and contrary to the policy of the LRIDA.’
In both his written and oral submissions, counsel for the claimants confined himself to the application for certiorari. He said the order of certiorari is directed at the error of law evidenced by the Minister's decision that the 2010 amendment of the LRIDA does not apply to the claimants. Counsel observed that the Minister placed reliance on ( ). Learned counsel submitted that the most important issue for this court is whether the amendment on which the claimants rely has a retrospective effect.
Before developing his argument for a retrospective application of the statute, the claimants' counsel outlined what he considered to be the policy of the LRIDA . In short, the policy of the LRIDA is to ‘promote good labour relations.’ That, the submission ran, was emphasized by Rattray, P in . Counsel placed stress on what appears at page 299–300 of the then learned President's judgment:
‘The need for justice in the development of law has tested the ingenuity of those who administer law to humanize harshness of the common law by the development of the concept of equity. The legislators have made their own contribution by enacting laws to achieve that purpose, of which the Labour Relations and Industrial Disputes Act is an outstanding example. The law of employment provides evidence of a developing movement in this field from contract to status. For the majority of us in the Caribbean, the inheritors of a slave society, the movements have been cyclic, first from the status of a slave to the strictness of contract, and now to an accommodating coalescence of both contract and status, in which the contract is still very relevant though the rigidities of its enforcement have been ameliorated. To achieve this Parliament has legislated a distinct environment including a specialized forum, not for the trial of actions but for the settlement of disputes.’ [emphasis added]
Counsel concluded that the wider access to the IDT provided by the 2010 amendment, along with a more liberal definition of an industrial dispute, is further evidence of this policy.
Returning to the question of retroactivity, the claimants' counsel cited for the court's consideration. This case was decided under the Property (Rights of Spouses) Act (PROSA) . Specifically, the court was directed to paragraphs 64–69 of the judgment of Morrison, J.A. and paragraphs 6–13 of the judgment of Cooke, J.A. It was contended that in the latter paragraphs Cooke, J.A. demonstrated why the Property (Rights of Spouses) Act has retrospective effect.
Counsel for the claimants also relied on a Jamaica Information Service (JIS) report of the then Minister's contribution to the debate on the amending Bill. Here the submission is quoted in full, ‘he revealed that there were 4 non-unionised workers to every unionized worker, there were 6,000 disputes involving non-unionised workers in 2008 and that the bill was designed to level the playing field.’
It was the claimants” counsel's contention that referrals (supposedly concerning individuals) were still being made after , though “severely curtailed”. Finally, it was urged by counsel for the claimants that with no transitional provisions in the Act, ‘it would lead to a monumental unfairness to deny retroactive application of the Act to disputes arising before … March 23, 2010.’
In his oral submissions, the claimants' counsel expanded on this latter point. It was his argument that if one accepts the Minister's position, one worker with a dispute the...
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