The Institute of Jamaica v The Industrial Disputes Tribunal, Beecher (Coleen)

JurisdictionJamaica
CourtCourt of Appeal
Judge DOWNER, J.A.
Judgment Date02 Apr 2004
Neutral CitationJM 2004 CA 15
Judgment citation (vLex)[2004] 4 JJC 0209
IN THE COURT OF APPEAL
BEFORE:
THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE BINGHAM, J.A THE HON. MR. JUSTICE PANTON, J.A
BETWEEN:
THE INSTITUTE OF JAMAICA
APPELLANT
AND
THE INDUSTRIAL DISPUTES TRIBUNAL
1 ST RESPONDENT
AND
COLEEN BEECHER
2 ND RESPONDENT
Christopher Kellman and Nigel Jones instructed by Myers Fletcher and Gordon for the Appellant
Bert Samuels and Jermaine Simms instructed by Knight, Pickersgill Dowding and Samuels for the 1 st and 2 nd Respondents

JUDICIAL REVIEW - Public Officer - Termination of employment - Certiorari - Order to quash award of Industrial Disputes Tribunal ordering reinstatement of second defendant - - Whether termination of services justifiable

DOWNER, J.A.
1

Introduction

2

The issue to be determined in these proceedings is whether Ellis J. sitting in the Judicial Review Court was correct in affirming the order of the Industrial Disputes Tribunal ("the I.D.T."), that the second respondent Mrs. Coleen Beecher be reinstated as an officer at the Institute of Jamaica. It is necessary to advert to the narrative of events which led to her dismissal so as to determine whether Mrs. Beecher's dismissal was unjustifiable, pursuant to section 12(a) of the Labour Relations and Industrial Disputes Act ("the Act").

3

The terms of her employment, were set out in a letter at pages 8 – 9 of the Record, which reads as follows:

"February 6, 1996

Mrs. Coleen Beecher

26 Stars Way

Hughenden

Kingston 8

Dear Mrs. Beecher:

I write to offer you employment as Administrator: Central Administration in the post designated as Deputy Director, (the name of which will be ultimately changed to some other title that reflects those duties) with effect from March 1, 1996.

The following terms and conditions are attached to this post:

  • 1. You will report directly to the Executive Director

  • 2. Employment is on a full-time basis

  • 3. Your permanent employment will be subject to ratification by the Council of the Institute of Jamaica.

  • 4. Your duties will be in accordance with the attached job description

  • 5. Salary and allowances are as follows

    • a) Post Grade SEG II

    • b) Basic salary $508,082 p.a.

    • c) Motor Car Upkeep $ 86,916 per annum or in the event that you do not own and drive a motor car a transport allowance of $35,148 per annum.

    • d) Uniform & laundry Alice. $16,428 per annum

In the event of any change in the Government's salary scale for the designated post, or the allowances attached to the post, emoluments will be reviewed accordingly.

  • 6. Deductions will be made from your salary at the prescribed rates with respect to Income Tax, National Insurance, Education Tax, National Housing Trust.

  • 7. You will be subject to the Staff Orders for the Public Service. Under these regulations you will be entitled to leave as follows:

Vacation:

35 days for every 12 months of service, accumulative to 105 days.

Departmental:

14 days per calendar year.

Sick:

14 days per calendar year

  • 8. Office hours are from 8:30 a.m. to 5:00 p.m. Mondays to Thursdays and 8:30 a.m. to 4:00 p.m. on Fridays.

If you so desire you may become a contributor to the Blue Cross Health Scheme administered through the Institute of Jamaica.

Notwithstanding the foregoing your employment may be terminated at any time by one month's notice in writing on either side.

I should be grateful if you would signify your acceptance of this position, under the terms and conditions stated above, by signing the acceptance clause below and returning the signed copy to us at your very earliest convenience.

Yours sincerely

INSTITUTE OF JAMAICA

Elaine Fisher, Ph.D

Executive Director (Actg.)"

4

It should be noted that the Executive Director is ex officio a member of the Council of the Institute. See paragraph 1(2)(e) of the First Schedule to the Institute of Jamaica Act.

5

There are three features to note in this letter, namely that she was to report to the Executive Director; that her employment was temporary until ratified by the Council of the Institute of Jamaica; and that employment could be terminated by one month's notice in writing on either side.

6

How did the Industrial Disputes Tribunal treat the letter of employment and Mrs. Beecher's dismissal?

7

Here is how the Industrial Disputes Tribunal stated the reference at page 21 of the Record:

"REFERENCE:

By letter dated 17 th November, 1999 the Honourable Minister of Labour, Social Security and Sport, pursuant to Section 11 (A) (1) (a) (i) of the Labour Relations and Industrial Disputes Act referred to the Industrial Disputes Tribunal for settlement the dispute between the Institute of Jamaica and the Jamaica Civil Service Association.

The Terms of Reference to the Tribunal were as follows:

To determine and settle the dispute between the Institute of Jamaica on the one hand, and the Jamaica Civil Service Association on the other hand, over the dismissal of Mrs. Coleen Beecher."

8

It should be noted that before a reference there are always attempts to settle the disputes. The I.D.T states the position thus at page 22 of the Record:

9

"BACKGROUND TO THE DISPUTE

The dispute arose over the termination by the Institute of the employment of Mrs. Coleen Beecher from her position as Administrator.

The matter was discussed at the local level and at the Ministry of Labour but was not resolved, as a result of which it was referred to the Tribunal to be determined and settled."

10

The statutory provision of the Act by which the reference was made reads:

"11A.-(1) Notwithstanding the provisions of sections 9, 10 and 11, where the Minister is satisfied that an industrial dispute exists in any undertaking and should be settled expeditiously, he may on his own initiative —

  • (a) refer the dispute to the Tribunal for settlement -

    • (i) if he is satisfied that attempts were made, without success, to settle the dispute by such other means as were available to the parties; ..."

11

Before any assessment is made of the award of the I.D.T. it is helpful to refer to the letter of dismissal. It states at page 14 of the Record:

"January 15, 1999

Mrs. Coleen Beecher

Administrator

Institute of Jamaica

12–16 East Street

Kingston

Dear Mrs. Beecher

I write to advise that your employment with the Institute of Jamaica is terminated with immediate effect, today, January 15, 1999.

Enclosed please find a cheque in the sum of One Hundred and Ninety Eight Thousand One Hundred and Thirty Seven Dollars and Ninety Six Cents ($198,137.96) which covers:

  • a) One month's salary in lieu of notice

  • b) Sixty-five (65) days vacation leave which is currently due to you.

With reference to a letter sent to me from Mr. E. Bailey of the Jamaica Civil Service Association dated January 6, 1999, I wish to state, for the records that at no time during the meeting with yourself and the Personnel Officer on Monday January 4, 1999 were you told by me that I did not wish to work with you.

Yours truly

INSTITUTE OF JAMAICA

Elaine Fisher Ph.D.

Executive Director

c.c. Dr. Barry Chevannes, Chairman of the Council — IOJ Mrs. Marguerite Bowie, Permanent Secretary — MOE&C

Mr. Edward Bailey, Jamaica Civil Service Association

bcc. Mr. D. Muir, Personnel Officer

Miss E.A. Campbell, Financial Controller."

12

Prior to the above letter on December 14 there was this letter to Mrs. Beecher at page 12 of the Record:

"December 14. 1998

Mrs. Colleen Beecher

Institute of Jamaica

12–16 East Street

Kingston

Dear Mrs. Beecher

I write to advise you that I cannot:

  • • Recommend you for appointment

  • • Support your request for 20% duty concession on a motor car

  • • Approve your request for a motor car loan.

Your performance on the job has not been satisfactory as:

  • • You very often will not fol/ow instructions

  • • You spend far too much time on inconsequential details, hence are slow in completing activities assigned to you.

  • • You lack the competence for the job at hand. Your handling of the recent exercise of determining the salaries for the Accounting and Secretarial staff is one such example.

  • • You have been involved in a number of unpleasant confrontations with staff.

You have asked that a Secretary be assigned to you. At first glance this appears to be not an unreasonable request. However, I am unable to identify a member of the Secretarial staff who is desirous of working with you.

Today you attributed certain statements to me that I have categorically denied. You have stated that I will have to prove that I did not say them! I find this really amazing! During summer I advised you that I was not satisfied with your performance and you had stated a willingness to try to work on your deficiencies. This has not been the case. You have advised me that you will take your case to the highest level. So be it.

Yours truly

Elaine Fisher, Ph.D

c. Dr. Barry Chevannes, Council Chairman."

13

A point to note was that the appellant asserted that Mrs. Beecher was informed of her unsatisfactory performance over the summer and that Mrs. Beecher promised to try to remedy her deficiencies. Also of importance is that Dr. Fisher was of the opinion that there was no improvement. This letter and its attendant circumstances indicates that Mrs. Beecher was warned which is consistent with "good personal management techniques" as the Code stipulates.

14

It is now appropriate to examine the I.D.T's comments. The relevant portion reads as follows at pages 26–27 of the Record:

"The Tribunal takes note of the claim by the Institute that the post of Administrator was specifically created to accommodate Mrs. Beecher, that this is an unestablished post and not one to which she could even be appointed; but find it difficult to reconcile this claim with the...

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    ...review. It is interesting to note that in the Court of Appeal decision in Civil Appeal Number 9/2002, The Institute of Jamaica v. The Industrial Disputes Tribunal and Coleen Beecher, delivered April 2, 2004, the Court of Appeal found that Miss Beecher was an employee of a statutory body the......
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