R v McConnell (Mark) and United Estates

• Jurisdiction: Jamaica
• Judge: DOWNER. J.A.: , LANGRIN, J.A.: , HARRISON, J.A: , DOWNER. J.A. , DOWNER, J.A.
• Judgment Date: 31 July 2001
• Neutral Citation: JM 2001 CA 46
• Judgment citation (vLex): [2001] 7 JJC 3110
• Date: 31 July 2001
• Court: Court of Appeal (Jamaica)

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE LANGRIN, J.A

R.

v.

MARK McCONNELL UNITED ESTATES

Frank Phipps, Q.C. Kathryn Phipps

Kentry Pantry Q.C. Director of Public Prosecutions Mrs. Marjorie Moyston, Crown Counsel

CRIMINAL PROCEDURE - Informations - Breaches of Labour Relations and Industrial Disputes Act, s. 4 - Prevention of exercising of employees' rights to Trade Union membership

DOWNER. J.A.:

1 Langrin J.A. will deliver the first judgment.

LANGRIN, J.A.:

2 The Appellants United Estates Ltd. and Mark McConnell were tried and convicted in the St. Catherine Resident Magistrates Court for breaches of Section 4 (2) (a) and (b) of the Labour Relations and Industrial Disputes Act. ("LRIDA").

3 Both United Estates Ltd. and Mark McConnell were each convicted on three informations for breaches of the LRIDA:

4 United Estates Ltd.

• (1) On information 4207/95: United Estates Ltd. was convicted for having prevented and deterred Rudyard Robinson, a worker at United Estates Ltd. from exercising his rights to be a member of a trade union or to take part in the activities of the trade union; Contrary to section 4 (2) (a) of the Labour Relations and Industrial Disputes Act.

• (2) On information 4205/95 United Estates Ltd. was convicted for having dismissed, penalized and otherwise discriminated against Gary Smith, a worker of United Estates Ltd. by reason of the said Gary Smith exercising his rights to be a member of a trade union or to take part in the activities of a trade union; Contrary to section 4 (2) (b) of the Labour Relations and Industrial Disputes Act.

• (3) On information 4203/95 United Estates Ltd. was convicted for having dismissed, penalized and otherwise discriminated against Alfred Palmer, a worker of United Estates Ltd. by reason of the said Alfred Palmer exercising his rights to be a member of a trade union; Contrary to section 4 (2) (b) of the Labour Relations and Industrial Disputes Act.

5 Mark McConnell

• (1) Information 4188/95: Mark McConnell was convicted for having prevented and deterred Rudyard Robinson a worker at the United Estates Ltd. from exercising his rights to be a member of a trade Union or to take part in the activities of a trade union; Contrary to section 4(2) (a) of the Labour Relations and Industrial Disputes Act.

• (2) On Information 4206/95 Mark McConnell was convicted for having dismissed, penalized and otherwise discriminated against Gary Smith, a worker at the United Estates Ltd. by reason of the said Gary Smith exercising his rights to be a member of a trade union or take part in the activities of a trade union; Contrary to section 4 (2) (b) of the Labour Relations and Industrial Disputes Act.

• (3) On Information 4194/95 Mark McConnell was convicted for having Dismissed, penalized and otherwise discriminated against Alfred Palmer, a worker at the United Estates Ltd. by reason of the said Alfred Palmer exercising his rights to be a member of a trade union or to take part in the activities of a trade union. Contrary to section 4(2) (b) of the Labour Relations and Industrial Disputes Act.

6 In the result both United Estates Ltd. and Mark McConnell were convicted for breach of section 4(2) (a) in relation to Rudyard Robinson, and, both United Estates Ltd. and Mark McConnell were convicted for breach of section 4 (2) (b) in relation to Gary Smith and Alfred Palmer.

7 United Estates was fined $2,000.00 to be recovered by distress if not paid, for each offence, while Mark McConnell was fined $2, 000 or 30 days imprisonment for each offence. They have appealed against their respective convictions and sentences on the following grounds:

• (1) Each information was bad for duplicity in that it charged more than one offence. The ruling of the learned Resident Magistrate against the submission of duplicity was wrong in law.

• (2) The finding of guilt on information 4188 for a breach of section 4 (2) (a) of the Labour Relations and Industrial Disputes Act was inconsistent with the finding of guilt on informations 4206 and 4194 for breach of section 4 (2) (b) of the Act. The facts in support of the allegations of the respective breaches were similar and indistinguishable.

• (3) The learned Resident Magistrate erred in law in allowing inadmissible evidence to be adduced at the trial.

• (4) The verdicts were unreasonable and cannot be supported having regard to the evidence.

8 The grounds of appeal in respect of both appellants are similar.

9 The case for the prosecution was cast in the following manner. Between February and June, 1994 a number of workers employed to United Estates Limited sought to organise themselves by seeking union membership in order to improve their working conditions. They joined the National Workers Union. After being unionized they were harassed by Mark McConnell and threatened with dismissal. These union members were asked to sign a document disassociating themselves from the Union.

10 On June 16, 1994, some of the workers had staged a demonstration at the entrance of United Estates during lunch hours. They then tried to enter the gate to resume work and were prevented from doing so. Subsequently they were escorted into the premises in order to retrieve their belongings and change their clothes. On reporting for work the following day the workers were refused entry by a security guard who informed them of instructions he had received from Mark McConnell. Some of the workers spoke directly to Mark McConnell who informed them that they were being laid off for various reasons including the fact that they were involving themselves in the Union. Other workers were informed that production was low and that they would be laid off but would be contacted when things got better. However, they were never contacted. There were still other workers who were told they were being laid off because of union activity. The defence was in essence a denial of the case for the prosecution.

11 It will be useful at this point to set out the relevant provisions of the statute which state the rights of workers in respect of Trade Union membership.

"4. -

• (l)Every worker shall, as between himself and his employer, have the right -

  • (a) to be a member of such trade union as he may choose;

  • (b) to take part, at any appropriate time, in the activities of any trade union of which he is a member;

• (2) Any person who -

  • (a) Prevents or deters a worker from exercising any of the rights conferred on him by subsection (1) or;

  • (b) Dismisses, penalises or otherwise discriminates against a worker by reason of his exercising any such right;

  shall be guilty of an offence, and shall be liable on summary conviction before a Resident Magistrate to a fine not exceeding two thousand dollars".

12 The appeal turned firstly on the jurisdiction of the Resident Magistrate to try together the informations charging the same person for two different offences. Mr. Phipps Q.C. submitted that such a situation was prohibited by Section 9 of the Justices of the Peace Jurisdiction Act which reads:

"9. Every such complaint upon which a Justice or Justices is or are or shall be authorized by law to make an order and every information for any offence or act punishable upon summary conviction, unless some particular enactment of this Island shall otherwise require, may respectively be made or laid without any oath or affirmation being made of the truth thereof, except in cases of information where the Justice or Justices receiving the same shall thereupon issue his or their warrant in the first instance to apprehend the defendant as aforesaid; and in every such case where the Justice or Justices shall issue his or their warrant in the first instance, the matter of such informations shall be substantiated by oath or affirmation of the informant, or by some witness or witnesses on his behalf, before any such warrant shall be issued; and every such complaint shall be for one matter of complaint only, and not for two or more matters of complaint, and every such information shall be for one offence only, and not for two or more offences; and every such complaint or information may be laid or made by the complainant or informant in person, or by his counsel or solicitor, or other person authorized."

13 Mr. Phipps Q.C. for the appellants submitted that each information as laid was bad for duplicity in that each information charged more than one offence. He contended that there is a world of difference to a worker having a right to be a member of a trade union on the one hand and on the other hand taking part in the activities of a trade union. Where both are charged in the same information the allegation is that there are two offences in one information. A worker he contended can become a member of a Union and not take part in the activities but the converse is not the same. A worker cannot take part in activities of the Union without being a member. A number of authorities were cited in support of his contention. I have considered them but it is not necessary for me to refer to all of them.

• 1. Mallon v Allon [1963] 3 All ER 843

  There the Divisional Court held that an enactment providing that "no person ... under the age of 18 years shall be admitted or allowed to remain... on premises, created two offences, on the ground that (i) admitting and (ii) allowing to remain were separate acts.

• 2. Ware v Fox. Fox v Dingley & Another. [ 1967] 1 All ER 100

  Here the Court held that an enactment providing that "if a person being the occupier of any premises, permits those premises to be used for the purpose of smoking cannabis or cannabis resin or of dealing in cannabis or cannabis resin..." created two offences, one of permitting use for the purpose of smoking and the other permitting use...