Private Power Operators Ltd v Industrial Disputes Tribunal

• Jurisdiction: Jamaica
• Judge: McDonald-Bishop JA,Simmons JA,Dunbar-Green JA
• Judgment Date: 26 March 2021
• Neutral Citation: JM 2021 CA 36
• Docket Number: SUPREME COURT APPEAL NO 99/2018
• Court: Court of Appeal (Jamaica)

[2021] JMCA Civ 18

IN THE COURT OF APPEAL

Before:

THE HON Mrs Justice McDonald-Bishop JA

THE HON Miss Justice Simmons JA

THE HON Mrs Justice Dunbar-Green JA (AG)

SUPREME COURT APPEAL NO 99/2018

Between

Private Power Operators Ltd

Appellant

and

Industrial Disputes Tribunal

1 ^st Respondent

and

National Workers Union

2 ^nd Respondent

and

The Union of Clerical Administrative and Supervisory Employees

3 ^rd Respondent

Gavin Goffe and Matthew Royal instructed by Myers, Fletcher & Gordon for the appellant

Ms Carla Thomas and Miss Christine McNeil instructed by the Director of State Proceedings for the 1 ^st respondent

Lord Anthony Gifford QC instructed by Gifford, Thompson & Shields for the 2 ^nd and 3 ^rd respondents

McDonald-Bishop JA

1 I have read in draft the judgment of Dunbar-Green JA (Ag). I agree with her reasoning and conclusion and there is nothing that I could usefully add.

Simmons JA

2 I, too, have read in draft the judgment of Dunbar-Green JA (Ag). I agree with her reasoning and conclusion and I have nothing useful to add.

Dunbar-Green JA (AG)

Introduction

3 The appellant, Private Power Operators Ltd (the company/employer), which was the claimant below, operates a 60 MW slow speed diesel power plant at 100 Windward Road, Kingston 2 in the parish of Kingston. The first respondent, the Industrial Disputes Tribunal (IDT), which was the first defendant below, is a statutory body established under the Labour Relations and Industrial Disputes Act (LRIDA) with the primary objective of settling industrial disputes. The National Workers Union (NWU) and The Union of Clerical, Administrative and Supervisory Employees (UCASE), the second and third respondents (together referred to as ‘the unions’), are registered trade unions.

4 On 28 June 2013, the company dismissed certain of its employees who were represented by the unions, resulting in industrial unrest. The Minister of Labour (the Minister) referred the matter to the IDT for settlement, pursuant to section 9(3) of the LRIDA. Before the IDT, the company and the unions disputed: (i) whether there was a genuine redundancy exercise pursuant to the Employment Termination and Redundancy Payments Act; and (ii) whether the dismissals conformed to the requirement of the Labour Relations Code (the Code) that there be consultation between the unions and the employer before any employee is made redundant.

5 On 5 April 2016, the IDT handed down its award. It found that the decision to reduce the workforce was one that a reasonable employer could have reached, given the decreased hours required to maintain the plant's engines. However, it found that there was no prior consultation with the unions about redundancy as required by paragraph 19(b) of the Code and also that the employees were unjustifiably dismissed as the selection process was unfair.

6 The appellant filed its fixed date claim form on 28 February 2017 seeking judicial review of the decision of the IDT. It sought an order of certiorari to quash the award and also sought accompanying declarations. The unions joined as interested parties. On 12 September 2018, G Fraser J (the learned judge) refused to grant the orders sought. It is that decision which has occasioned this appeal to determine whether the learned judge exercised her powers correctly in reviewing the decision of the IDT.

Background

7 The company claimed and the unions denied that there were consultations about the redundancies. The chronology of exchanges between the company and the unions is set out below:

• i. 31 December 2012 — A letter from the company to Mr Granville Valentine, a senior negotiating officer at the unions, inviting him to meet to discuss a proposed restructuring exercise and proposing two meeting dates in January 2013;

• ii. 9 January 2013 — A follow-up letter renewing the invitation for the unions to share proposals it might have regarding the proposed restructuring, alternatives to restructuring and/or the method of restructuring;

• iii. 12 February 2013 — By letter, the company invited Mr Valentine to meet on 20 or 21 February 2013. It also set out a list of initiatives, which it was evaluating, including redundancy;

• iv. 27 February 2013 — Mr. Valentine replied, expressing surprise at the company's proposals and suggested, among other things, that the company should reduce expenditure by cutting its wage bill for management and discontinuing the hiring of expatriates;

• v. 1 March 2013 — The company replied, renewing its invitation to meet and indicated that it intended to comply with the Code in relation to consultation. It also took issue with the unions' interpretation of the contents of its previous letter about the proposed restructuring exercise;

• vi. 10 April 2013 — The company and the unions met;

• vii. 24 April 2013 — By letter, at the request of the unions, the company provided information on financial savings that would accrue from the proposed restructuring of its operations. It also proposed three dates for the parties to continue their discussions;

• viii. 13 May 2013 — In a follow-up letter, the company again proposed meeting dates to the unions and indicated that if there was no completion of the consultation, it would continue the process as it deemed appropriate;

• ix. 14 May 2013 — By letter, the unions responded to the company's letter of 24 April 2013, taking issue with the reasons suggested for a restructuring exercise and suggesting four dates, including 19 June 2013, for the parties to meet.

• x. 19 June 2013 — The company and the unions met. At that meeting, the unions were issued with a statement from the company to the effect that the redundancies would commence on 28 June 2013;

• xi. 25 June 2013 — In a follow-up letter, the company provided the categories of workers in the bargaining unit that would be affected. The company also stated that the names in the relevant categories would be provided, at the latest, 26 June 2013 and that the list had been arrived at by utilizing selection criteria, consistent with clause 20 of the Collective Labour Agreement (the CLA) between the company and the unions. The company indicated that the selection of staff was conducted using a Redundancy Selection Matrix Form which consisted of six criteria: (i) performance, (ii) knowledge and skills, (iii) experience, (iv) qualification, (v) attendance and (vi) disciplinary offences; and

• xii. 26 June 2013 — The company provided the unions with the list of persons whose contracts were to be terminated in June and July 2013 by reason of redundancy. Notwithstanding criterion (i) on the Redundancy Selection Matrix Form, performance appraisals were not used by the company because it claimed to have had no ongoing system of appraisals.

Proceedings before the IDT

8 The company contended that a valid redundancy situation existed and a fair procedure was used to carry out the redundancy exercise. It relied on correspondence with the unions, which it said were kept up to date on all the relevant information pertaining to the restructuring exercise. It also relied on the correspondence to show that the unions were uncooperative.

9 For their part, the unions contended that they were unaware of the intended staff cuts until 19 June 2013. This, they said, violated paragraph 11(iii) of the Code, which stipulates that the company should inform the unions as soon as the need “may be evident” for redundancies. The unions' position was that they were never consulted on, had no prior knowledge of, and did not agree to the selection matrix which was designed by the company and used to evaluate the employees. They complained that the staff evaluation lacked transparency as neither the employees nor their immediate supervisors participated in the process. They further contended that the “Performance” criterion had not been used although it was listed in the matrix as one of the criteria to be evaluated.

10 The IDT had multiple sittings for an extended period over which it heard evidence and submissions. It found that a genuine redundancy situation had existed. However, it also found that the dismissals were unjustifiable as the company mismanaged the consultation process and that the selection process lacked transparency and was non-compliant with the Collective Labour Agreement (CLA). Accordingly, on 5 April 2016, the IDT ordered that the workers be reinstated within 21 days with payment of 52 weeks' wages, failing which they were to be compensated in the amount of 150 weeks' wages after deducting previous payments for redundancy.

11 These were the material findings of the IDT:

• i. The 31 December 2013 communication to the unions by the company was an invitation to a meeting to discuss a proposed restructuring. There was no mention of redundancy;

• ii. In the communication from the company, dated 12 February 2013, there were several initiatives that the company was evaluating but there was no decision on whether any, some or all of them would be implemented;

• iii. In the company's letter, dated 1 March 2013, there was no clear, concrete or definitively stated position to the unions that redundancies would take place. Also, the unions' request for information relating to authenticated costs of operations, was not met;

• iv. The invitation to meet with the unions was to discuss a ‘proposed restructuring exercise’ and not redundancy. “Restructuring may lead to a redundancy situation or it may not. A redundancy situation may arise as a result of a restructuring but there is no necessary connection between the two” (paragraph 37 of award);

• v. The company did not, in clear terms, inform the unions about the item of redundancy or any other of the seven initiatives being evaluated for introduction nor did it conclusively convey a clear and precise decision on redundancies to its workforce on 23 January 2013;

• vi. There was a discussion about proposed restructuring,...