Spur Tree Spices Jamaica Ltd v The Minister of Labour and Social Security

• Jurisdiction: Jamaica
• Judge: D. Fraser J
• Judgment Date: 17 July 2018
• Neutral Citation: [2018] JMSC Civ 103
• Docket Number: CLAIM NO. 2016HCV04301
• Court: Supreme Court (Jamaica)
• Date: 17 July 2018

Between

Spur Tree Spices Jamaica Limited

Applicant/ Claimant

and

The Minister of Labour and Social Security

Respondent/ Defendant

Fraser, J.

CLAIM NO. 2016HCV04301

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

Accusation of theft —Summary dismissal of employees — Failure to comply with the Labour Relations Code — Offer of reinstatement — Meaning of reinstatement in fact and law — Disciplinary hearings on same facts which triggered improper dismissals — Propriety of condition subsequent to reinstatement — Definition of industrial dispute — Whether there was an extant industrial dispute at time of Minister's referral — Need for second complaint after second dismissal — Minister's referral ultra vires s. 11A Labour Relations and Industrial Disputes Act

IN OPEN COURT

Gavin Goffe and Jahmar Clarke instructed by Myers, Fletcher and Gordon for the Claimant

Christine McNeil instructed by the Director of State Proceedings and Khadrea Ffolkes, Senior Legal Officer in the Ministry of Labour and Social Security for the Defendant

D. Fraser J

BACKGROUND

1 On October 13, 2016, the claimant filed an application for leave to apply for judicial review supported by the affidavit of Albert Bailey. The claimant sought the following orders:

• (i) leave is granted to the applicant to apply for a Declaration that the respondent's referral of the dispute between the applicant and its former employees, Raquel Russell, Teena Mattlock-Wright, Takita McDonald, Joan McDonald, Kerry-Ann Williams, Cornel Taylor and Nikesha Williams (hereinafter referred to as former employees) over the termination of their employment to the Industrial Disputes Tribunal (hereinafter referred to as IDT) is ultra vires as being in breach of s. 11B of the Labour Relations and Industrial Disputes Act (hereinafter referred to as LRIDA);

• (ii) leave is granted to the applicant to apply for Certiorari to quash the respondent's referral of the dispute between the applicant and its former employees over the termination of their employment, to the IDT;

• (iii) leave is granted to the applicant to apply for a Declaration that, at the time of the referral by the respondent, the only matter in dispute between the applicant and the former employees was not an industrial dispute as defined in the LRIDA;

• (iv) the grant of leave shall operate as a Stay of the respondent's referral of the dispute and of any proceedings before the IDT regarding the dispute between the applicant and its former employees; and

• (v) costs of this application to be costs in the claim.

2 The following were the grounds of the application:

• (i) The respondent's referral relates to dismissals which were effected on March 05, 2015. The former employees did not lodge any complaint with respect to those dismissals within the 12-month period, or at all, as required by s. 11B of the LRIDA in order for the Minister of Labour and Social Security (hereinafter referred to as the Minister) to have the power to refer the dispute to the IDT, or for the IDT to have the jurisdiction to enter upon the referral;

• (ii) The dispute between the applicant and its former employees, according to the former employees themselves, relates to the applicant's decision to send them on leave of absence pending disciplinary hearings that they refused to attend. That is not the dispute that was referred to the IDT by the Minister. That dispute cannot be referred by the Minister based on the definition of “industrial dispute” in the LRIDA;

• (iii) The dispute that the Minister purported to refer to the IDT was already settled between the parties by the unconditional withdrawal of the dismissal letters issued in December, 2014 and the reinstatement of the former employees, which they accepted with the offer of full pay. Alternatively, by their actions the former employees waived all right to challenge their dismissals in December 24, 2015;

• (iv) The Minister has no jurisdiction to refer disputes that have already been settled by the parties;

• (v) The Minister has no jurisdiction to refer a complaint of unjustifiable dismissal where the parties have agreed to the withdrawal of the dismissal letter and the reinstatement of the aggrieved workers;

• (vi) The applicant was and is directly affected by the respondent's referral as it has been forced to retain attorneys to represent its interests; and

• (vii) The time limit for making this application has not been exceeded.

3 On December 01, 2016, Graham-Allen J granted leave to the applicant to apply for certiorari to quash the respondent's referral of the dispute between the applicant and its former employees over the termination of their employment, to the IDT. On December 15, 2016, the claimant filed a Fixed Date Claim Form, supported by an affidavit seeking, amongst others, orders i, ii and iii as stated in the application for leave above.

4 On July 17, 2018, I handed down judgment with reasons to follow, in the terms outlined below:

• a) It is declared that the defendant's referral of the dispute between the claimant and its former employees over the termination of their employment to the IDT is ultra vires as being in breach of s. 11B 1 of the LRIDA;

• b) The defendant's referral of the dispute between the claimant and its former employees over the termination of their employment, to the IDT is quashed;

• c) It is declared that, at the time of the referral by the respondent, the only matter in dispute between the applicant and the former employees was not an industrial dispute as defined in the LRIDA; and

• d) Costs to the claimant to be agreed or taxed.

5 Unfortunately, in error, in the first order the reference was made to section 11B of the LRIDA, whereas it should have been to s.11A. That inadvertent error is now corrected. Order a) therefore properly reads:

a) It is declared that the defendant's referral of the dispute between the claimant and its former employees over the termination of their

employment to the IDT is ultra vires as being in breach of s. 11A of the LRIDA

THE EVIDENCE

6 The relevant facts gleaned from the affidavits of Albert Bailey, (CEO of the claimant company), and Michael Kennedy, (Chief Director in the Industrial Relations Department responsible for all disputes referred to the Ministry of Labour and Social Security (“the Ministry”)), are as follows. After a period of some concern about lower than projected profit margins, the company in September 2014 and twice in December 2014, the second occasion being December 23, found a number of its products secreted in the staff restroom. On each occasion when these items were discovered staff were warned, including on at least one occasion, when it was indicated that theft was negatively affecting the company's profits and that disciplinary action, including dismissal, could be taken against them.

7 Following suspicions that certain workers were stealing from the company they were summarily dismissed on December 24, 2014. On January 8, 2015 Mr. Howard Duncan Industrial Relations Consultant (IRC) representing the former employees wrote to the claimant company indicating that the manner of termination breached the Labour Relations Code (LRC) and the rules of natural justice. He requested an appeal hearing with a view to their reinstatement within five days without loss of pay, failing which the matter would be referred to the Ministry.

8 Based on correspondence exhibited, the next steps in the process were that on January 16, 2015 the workers were told to return to work on January 19, 2015 at which time they collected undated letters unconditionally withdrawing the letters of dismissal dated December 24, 2014 and reinstating them effective December 24, 2014. Those letters advised that they would be paid all their outstanding emoluments from December 24, 2014 to January 16, 2015, minus the notice pay which they received upon termination. Also between January 19 and 20, 2015 they were each handed another undated letter which invited them to disciplinary hearings on either January 20 or 21, 2015 and directing them to proceed on paid leave of absence until the decision of the disciplinary hearing was communicated to them. They were also advised that they could have representatives attend the disciplinary hearings with them.

9 On January 26, 2015 Mr. Duncan the IRC wrote referring the matter to the Ministry indicating that he had advised the workers to report to work but not to participate in a disciplinary hearing as it was an appeal hearing that had been requested. He stated that the worker was being prevented from working and he was inviting the Ministry to intervene to settle the dispute.

10 The Ministry wrote to the claimant company on February 11, 2015 advising of the receipt of the complaint on January 26, 2015 and proposing Friday, February 20, 2015 or Wednesday, February 25, 2015 for a conciliatory meeting to try and resolve the matter. The claimant's attorneys responded via letter of even date stating that the employees were still employed to the claimant and therefore the Ministry's invitation for them to attend a meeting was premature.

11 Of the seven former employees, only Mr. Cornel Taylor attended his scheduled disciplinary hearing. After his hearing presided over by Mr. Dennis Hawkins, a director of the claimant, at which Mr. Taylor waived his right to representation, his services were terminated by letter dated February 12, 2015.

12 On February 25, 2015 Mr. Duncan wrote to the Ministry indicating:

We are aware that the employees are still employed to the company as their terminations were in the first instance unfair and then the company withdrew the termination, hence they are still employees.

The matter is therefore that the employees are not able to attend work as the company refuses to allow them to work until they attend disciplinary hearings. This we object to as the termination was unfair...